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Irish State argument against environmental rights in the Irish constitution

FIE: That an unenumerated right to the environment is a personal right, enjoyed by its or its members, under the Constitution

MR. JUSTICE BARRETT: And when you have no less a man that Pope Frances saying we live in an immense pile of filth you don't think that impinges on the right to bodily integrity, no?

 

FOR IRELAND & THE ATTORNEY GENERAL: MR . CIAR ÁN TOLAND SC

The third constitutional claim is that of Friends of the Irish Environment -  That an unenumerated right to the environment is a personal right, enjoyed by its or its members, under the Constitution and that the Extension Decision infringes that right by reason of the possible omissions.

I say,

1.       firstly, that the Applicants' rights or claimed right is not specific. It doesn't lead to a remedy and so is not capable of adjudication;

2.       secondly, no evidence has been adduced save in the most general terms;

3.       third, the case law is clear that a very high threshold must be reached before judicial discernment of further unenumerated rights;

4.       fourth, Friends of the Irish Environment have advanced no recognised method of constitutional interpretation suitable to discern this particular right;

5.       and fifth, policy, with respect to the environment, properly falls to the legislature. [p. 83]

 

MR. TOLAND: I now turn to two final matters which were raised by Friends of the Irish Environment. The first which I will deal with is the alleged constitutional right to an environment, and the second I will turn to the consideration by Fingal County Council of section, the factors outlined in section 15 of the Climate Action and Low Carbon Development Act, 2015.

 

In respect of the right to the environment, Friends of he Irish Environment assert that natural and constitutional rights to bodily integrity are predicated and derived from -- they are dependent upon a right to the environment. They submit that's inherent in various articles, Article 40 of the Constitution, and they claim that that right is -- 42(a) of the Constitution -- and they claim the right is not absolute; it must be balanced with other competing rights.

They claim that the north runway will lead to an increase in greenhouse gas emissions, which will in turn lead to an increase in the pace of climate change and, ultimately, directly and irrevocably impinge on citizen's or resident's unenumerated right to an environment.

My Friend stated that Friends of the Irish Environment and the wider population are equally at risk in terms of their bodily integrity from environmental degradation which would occur if the north runway was built and in the support of that he referred to two reports, from the IPPC and Professor Bows-Larkin. I don't propose to go into those in any detail but simply to say this: that Friends of the Irish Environment, firstly, have not specified the scope of the right to the environment, either generally or in this particular case. They have stated it almost as a principle but

not as an enforceable right. I will come back to that briefly.

Secondly, the Applicants have established no infringement of the purported right. First of all, they must define its contours and they must say what specifically is being breached. They have not done that, in my view. But secondly, they have not established a particular infringement. And unlike in any of the cases in which an unenumerated right has been established -- and you might recall, Judge, that in Ryan -v- The Attorney General there is some 65 days of evidence and submissions in the High Court and in McGee medical evidence was advanced as to the health of the Plaintiff. There is a dearth of evidence in this case. Friends of the Irish Environment have advanced no evidence to establish that the north runway will cause an increase in the pace of climate change. The only evidence adduced is a report concerning Heathrow Airport and an IPPC report which contains generalised remarks concerning correlation between expansion of aviation and production of increased greenhouse gases.

This is not sufficiently precise for a breach of any alleged right to be established consequential upon the north runway. And I don't think it is necessary for me to open those reports in order to say that. There is no precise statement with regard to the impact that Dublin Airport itself will have upon greenhouse gas emissions. There is no link between that and greenhouse gas emissions and climate change. And so there can be no -- even if that link -- even if once you establish climate change there is a direct link that can be assumed between that and personal rights, and you don't need to evidence that, they haven't reached the point of saying that Dublin Airport is going to be directly impacting negatively upon climate change.

The unenumerated rights doctrine also needs to be considered because, of course, Judge, that is what this Court is being asked to do; to specify a new unenumerated right. And with apologies to my Friend, I'm going to produce another authority. The judgment of the Supreme Court in O'T -v- B (Same Handed). This case concerned a finding, after an initial Circuit Court hearing, a finding by the Supreme Court that a natural child was entitled to know the identity of his or her natural parent and that was an unenumerated right guaranteed by the Constitution. If I could just take the Court to the third page of the headnote at point 6 and:

"That in view of the caution to be exercised with regard to the duty of ascertaining and declaring what were the personal rights of a citizen, other than those specified in the Constitution, it was incumbent on a court declaring such a right to do so in clear and explicit terms."

I say that hasn't been done in this case to enable the Court to do so. I will just take the Court briefly to page 369 which is the decision of Mr. Justice Keane. Whilst this is essentially obiter I think it informs the decision of courts in the future ascertainment of unenumerated rights. Down at the bottom of page 369,and he is commenting on and interpreting, firstly, Ryan and then McGee. He says:

"There is no discussion in that judgment of the question as whether, given that the unenumerated rights clearly existed in the contemplation of the framers of the Constitution, it was intended by them that the duty of declaring what those rights were should be the function of the judiciary rather than the Oireachtas, although that fundamental issue is referred to in the judgment of Kenny J.. Nor was there any explicit endorsement of Kenny J.'s proposed criterion that they might flow from the Christian and democratic nature of the State. This might have been because the right under discussion was conceded, on behalf of the Attorney, to be such an unenumerated right, although not in the precise form of the right to bodily integrity. It would unduly prolong this judgment to consider in detail the problems that have subsequently been encountered in developing a coherent principle jurisprudence in this area. It is sufficient to say that, save where such an unenumerated right has been unequivocally established by precedent, as, for example, in the case of the right to travel and the right to privacy, some degree of judicial restraint is called for in identifying new rights of this nature."

And he goes on. I think that is the single most important element of his judgment, the necessity for judicial restraint.

My Friend referred to philosophical approaches. There is a discussion of that on page 372 but I don't think I need to open it, save to say that there is no known method of constitutional interpretation or enumeration of a right which has been advanced by Mr. Kenny or his clients to claim the environmental right they rely on, scientific consensus and an emerging, in the words of Mr. Kenny, jurisprudential consensus, predominantly international, and an emerging theological and philosophical consensus, in sole support of which they cite a recent papal encyclical.

There are, of course, various approaches to interpretation of the Constitution. We could spend days on it. It is unnecessary. The Applicants haven't grounded their right to an environment on any of the standard approaches: Literal; historical; harmonious; purposive. They have not looked to the text of the Constitution itself. Instead they have looked beyond it. And in looking beyond it the Applicants have advanced no authority to demonstrate that international consensus can be relied on as an interpretive advice for the finding of unenumerated rights in the Constitution.

MR. JUSTICE BARRETT: I fear you have just opened the gateway there to yet another judgment being handed up!

MR. TOLAND: I apologise, Judge, I didn't hear you.

MR. JUSTICE BARRETT: I fear you have just opened the

gateway there to yet another judgment being handed up!

MR. TOLAND: I may have. And I seek the right of rejoinder. Whilst it is a case, of course, that the case-law of the ECHR and the EU are persuasive and, of course, other jurisdictions are persuasive, the English system being, perhaps, one most familiar to us, in none of those systems is the right to environment a legally enforceable right. My Friends in their written submissions mention Article 37 of the EU Charter on Fundamental Rights and that, of course, is not a right, but merely a principle applicable to Union institutions, not an enforceable right open to citizens. So within the orders with which we are most familiar there is no international consensus.

And third, even if an international consensus could be placed before this Court, or should be recognised in  divining a right to the environment, there has been no evidence placed before this Court of such foreign law.

It is not simply a matter in submissions of asserting that a certain number of other countries, some of which are named, have a right to the environment. There are any number of ways in which a right to the environment can exist. Firstly, there is its scope. It may have various different scopes. Secondly, it may exist at various different legal orders. Thirdly, it exists within different legal systems, some of which – or most of which are unlike ours because ours actually permit legislation and administrative acts to be struck down on the basis of them. Fourthly, you need to in advancing foreign law produce that on evidence, you need to show how it sits within those legal orders and explain to the Court. And so it is not simply a matter of saying that a right to the environment exists as a concept without actually explaining its contours and how it does within those international systems.

Finally, and not to treat this in any further --because this issue has come up on many occasions before the Courts, but even if it were the case that – and leaving aside any question of an international consensus - the Court were to entertain the establishment of a right to the environment within our Constitution I say that that very firmly is a socio-economic right and one which these courts have on a number of occasions set a line firmly against.

I regret to say I have another authority for you, Judge, T.D. -v- The Minister for Education. No, sorry,

that's in the books. You will be pleased to know that, Judge. Book 3, Tab 50. Just without opening the case largely you will remember this, concerning the question about whether or not there is a right to education or what is called a general right for a citizen to receive or an obligation on the state to provide medical or social services as a constitutional obligation. If the Court opens to the judgment of Mr. Justice Murphy atpage 316 of the internal pagination.

"With the exception of Article 42 of the Constitution, under the heading "Education", there are no express provisions therein cognisable by the courts which impose an express obligation on the State to provide accommodation, medical treatment, welfare or any other form of socio-economic benefit for any of its citizens, however needy or deserving. It is true that the exploration of unenumerated constitutional rights....has established the existence of a

constitutional right of "bodily integrity". The examination of that right in later cases certainly establishes that the State has an obligation in respectof the health of persons detained in prisons. However,

these authorities do not suggest the existence of any general right in the citizen to receive, or an obligation on the State to provide medical and social services as a constitutional obligation. In G. V. An Bord Uchtála [1980] I.R. 32, Henchy J. Identified the right to bodily integrity at pp. 90 to 91 in the essentially negative terms following:

"As to a constitutional right to bodily integrity, such a right arises for judicial recognition or enforcement only in circumstances which require that, in order to assure the dignity and freedom of the individual within the constitutional framework, he or she should be held immune from a particular actual or threatened bodily injury or intrusion".

With the exception of the provisions dealing with education, the personal rights identified in the Constitution all lie in the civil and political rather than the economic sphere. These are indeed important rights which were won for citizens in different societies over a period of centuries often in the face of bitter opposition."

Moving down: "The absence of any express reference to accommodation, medical treatment or social welfare of any description as a constitutional right in the Constitution as enacted, is a matter of significance. The failure to correct that omission in any of the 24 referenda which have taken place since then would suggest a conscious decision to withhold from rights, which are now widely conferred by appropriate legislation, the status of constitutionality in the sense of being rights conferred or recognised by the Constitution."

He goes on to talk about the right to elevate social welfare. He does refer to the direct principles of social policy in the Indian Constitution, which some commentators have said comes from ours, but then moves to:

"The status of socio-economic rights in our Constitution and the detailed provisions in relation to education were explained by Professor Gerard Quinn:- "De Valera cleverly genuflected before socio-economic rights but made sure to insert them into a part of the Constitution that is unenforceable by the courts. One socio-economic right escaped into the hard text: Article 42 on the right to education. Its presence in the text has more to do with history than with logic."

And moving on: "There are, as I would see it, serious arguments against inferring the existence of positive socio-economic rights (apart from the anomalous rights relating to education) but there are impressive authorities to the contrary."

MR. JUSTICE BARRETT: And when you have no less a man that Pope Frances saying we live in an immense pile of filth you don't think that impinges on the right to bodily integrity, no?

MR. TOLAND: As a Presbyterian, I -- nevertheless I give him his due. Important philosophical commentators, important theologians are certainly those whom any State should take as part of the mix. But the question in ascertaining a socio-economic right, such as the right to the environment, is which body and which arm of the State should derive that right and should mark its contours. And what I was saying is that yes, absolutely you might be in favour personally of a right to the environment being enforced as it is in our current legislation, but that is separate entirely from whether this Court should recognise it as an enforceable right, one whose contours have not been defined in this case and one which would involve an adjudication by courts in future cases as to matters fundamentally about natural resources, both above and under the ground, and, therefore, substantially interfering with the balance of powers between our branches of government. And that trespasses directly upon distributed justice, which these courts have quite definitely set their minds against.

And finally, and without going further at all legally into the right to the environment, even if it is the case that the runway would cause an increase in the pace of climate change, which, as I have said, has not been established, and even if there is a constitutional right to the environment it is the planning permission and not the extension decision which is the cause of that increase. Section 42 does not trigger it. That concludes my submissions on the right to the environment.

 

 

Day 8, pages 126 - 137

Tuesday, October 17, 2017

 

THE HIGH COURT DUBLIN

Record No. 2017/344JR

BETWEEN:

HELENA MERRIMAN, MICHAEL REDMOND, ADRIENNE MCDONNELL, PETER COLGAN , ELIZABETH MCDONNELL , TREVOR REDMOND , PATRICIA DEIGHEN , MARGARET THOMAS , NOEL REILLY , HELEN GILLIGAN , JAMES SCULLY , FERGUS RICE , NOEL DEEGAN , VALERIAN SALAGEAN , SIDNEY RYAN , GREG FARRELL , SHEELAGH MORRIS , JIMMY  O'CONNELL , SILE HAND , DECLAN MCDONELL , ELIZABETH ROONEY & DESMOND O'CONNOR

and

FRIENDS OF THE IRISH ENVIRONMENT CLG APPLICANTS

and

FINGAL COUNTY COUNCIL RESPONDENT

and

DUBLIN AIRPORT AUTHORITY PLC

FIRST NOTICE PARTY

and

IRELAND AND THE ATTORNEY GENERAL

SECOND AND THIRD

NOTICE PARTIES

and

 

RYANAIR DAC FOURTH NOTICE PARTY

Minister Dennis Naughton. TD,

Department of Communications, Climate Action and Environment

This email address is being protected from spambots. You need JavaScript enabled to view it.

9 June, 2017

 

Re: Meeting of the Parties (MOP) to the Espoo Convention 13 June

 

Dear Minister,

 

We refer to the seventh session of the Meeting of the Parties (MOP) to the Espoo Convention on environmental impact assessment in a transboundary context, which will take place in Minsk from 13 to 16 June. There are a few issues we would like to draw your attention to.

 

As you know, subsequent to notifications from ourselves and from Bundestag member Sylvia Kotting-Uhl, the Espoo Convention Implementation Committee found that the UK violated international environmental law by failing to carry out a transboundary environmental impact assessment (EIA) in the case of Hinkley Point C. This must now be undertaken retrospectively. The Committee has recommended that the Parties request that the UK suspends work on the project until the transboundary EIA has been completed. Clearly this is vital, as otherwise a mockery would be made of the entire process. It is very important that the Meeting of the Parties adopts and endorse the Implementation Committee’s findings and recommendations in their entiretyAs you will be aware, Ireland failed to answer the Committee's direct question about transboundary impacts when it was investigating this matter. Therefore it is essential that you take a personal interest.

 

Ukraine has unexpectedly said that it is willing to carry out a transboundary EIA in connection with extending the lifetime of individual reactors. This development is a major opportunity to finally reach a binding arrangement for the Parties to the Espoo Convention which would require, in principle, a transboundary EIA to be undertaken in relation to lifetime extensions. We understand that Germany is pressing at EU level for an amendment of the EIA Directive and at international level for a clarification of the legal situation. Ukraine’s initiative must now be used to reopen negotiations regarding this objective and to build coalitions with countries which also fear the prospect of the long-term operation across Europe, of nuclear power plants which are already old and dilapidated today. Involvement in a transboundary EIA prior to lifetime extensions is a valuable instrument for governments and the public to raise concerns and discuss particularly severe problems. We would be grateful if you could clarify whether Ireland is supporting Germany in this regard.

 

We also wish to ask you to support Lithuania in Minsk regarding the lack of an EIA for the construction of a new nuclear power plant at Astravets, Belarus. Belarus is violating the Espoo Convention in several respects and Lithuania will be raising this subject in Minsk. We hope that you will press for compliance with the Convention and with the highest standards for the protection of public safety, health and the environment.

 

Thank you for your consideration of these points which we consider are consistent with your own concerns for nuclear safety and effective international environmental law. We are at your disposal to discuss further in advance of or during the MOP.

 

Sincerely yours,

 

Tony Lowes

 

Directors

The Planning Authority,

Kildare County Council,

Naas, County Kildare,

1 February 2017

 

 

Re: 161320

Applicant: Bord na Mona

Proposal: 3,380m2 horticultural facility and ancillary structures

 

Dear Sir or Madam;

 

We refer to the application form by the developer and note that they state that no Environmental Impact Statement is required’. [Page 6]

 

We note the decision of An Bord Pleanala upheld by the High Court in relation to Edenderry Power Plant whereby the source of the fuel was required to be considered as part of the application for the continuation of the plant [PL 19.245295].

 

Notwithstanding this judgment against the current applicant, the Environmental Impact Assessment Report is concerned only with the processing facility and offers no assessment of the extraction of peat necessary for this planning application although it is admitted in the ‘Characteristics of the proposed development’ (Appendix E, 3.2) that the material for the proposal will be sourced from ‘Moulds Bog/Bog of Allen’.

 

This EIA Report states that the materials would be extracted in the absence of the proposed development. ‘Market demand is the driver for the extraction of these materials, not the proposed development.’ It is difficult to see that the extraction on the scale proposed would happen if this facility was not constructed.


 

However, the question; ‘Would any contribution of the above factors be considered likely to have significant effects on the environment?’ meets the reply ‘It is not considered that the combination of the above factors could result in significant effects on the environment.’

 

Similarly, the claim that the peat would be extracted anyway is advanced again under Appropriate Assessment, which confirm the extraction of 215,000m3 per year from a resource of 6,612,327.6m3.

 

Further, the Summary of Potential Environmental Impacts of the Development of a Horticultural processing facility Allen Bog in the Screening for Appropriate Assessment [3.3.3]. does not address the impact of the extraction of peat and its conclusion considers only the impact of the construction of the processing facility.

 

Bord na Mona prepared and submitted an EIS and AA in relation to the extraction of peat for the Edenderry power plant in June 2016, a ’fall back’ application in view of the likelihood of the High Court striking down the original application that contained no such assessments. This duly took place.

 

We would suggest to the Planning authority that in view of the planning history of the Edenderry Power Plant, the Local Authority has no choice but to refuse this application until the extraction of the peat required to supply this facility is addressed.

 

We attach the €20 participation fee.

 

Yours, etc.,

  

 

Tony Lowes

Aquaculture Licences Appeals Board [AP2/12/2015]

Oral Hearing Shot Head licence Marine Harvest Ireland [TO5/555]

14 February 2017

 

Presentation by Friends of the Irish Environment

 

We make this presentation under protest on the grounds outlined by Save Bantry Bay and An Taisce – mainly but not limited to the failure of the 1997 Aquaculture legislation to incorporate changes in the law relating to participation and to the appropriate assessment of environmental impact. We reserve our tight to challenge this Board’s procedures.

 

 

We are here to ‘seek to establish clarity’ on three specific points of environmental impact which have been considered by the Licencing Authority and found acceptable. This is an appeal against that decision because no clarity can be provided through the current licencing system.

  

The Department of Maine's Engineering Division (which inspects production facilities and recommends actions to ensure licence compliance), the Department's aquaculture and foreshore management division (which issues and enforces licences), the Marine Institute (which provides research and analysis), and the Sea Fisheries Protection Authority (which addresses the contamination of the final product) - all  feed into the licensing process.

 

The scientific work of The Marine Institute and the SFPA underpins Department policies on sea fisheries and aquaculture. It must be strictly evidence-based.

 

Their work includes:

*            scientific assessment of salmon farm licences,

*            regulation of fish movements by aquaculture operators,

*            operation of the State's sea lice monitoring programme,

*            responsibilities under the Residues Directive for food safety

*            categorisation of suitable waters for certain aquaculture activities.

 

But their operations are each controlled by the Marine side of the Department, dependent on them for staffing and resources. Placing the governance and resourcing of these agencies under the control of the Department's Marine side with its aquaculture development priorities, rather than one of the many non-fisheries Divisions, undermines the independence of the advisory and regulatory duties of these agencies and the intention of the Oireachtas in establishing these bodies as independent agencies. The conflict of interest exists, a priori. The necessary and appropriate checks and balances incumbent on the Department in the exercise of its functions is impossible.

 

It is not a question of the scientific and technical competence of the agencies involved but rather who controls them. The current governance perpetuates a real and perceived conflict of interest and an inadequate separation of functions within the Department.

 

For example, we have examined the Marine Fish Farm Inspection Reports which confirm overstocking at Marine Harvests sites in the south west continue unabated from at least 2012 to date, in spite of the Marine Engineering Division’s explicitly annual inspections and reports requesting support in enforcing this and many other breached licencing conditions. In response to this major non-conformity to the Aquaculture Stewardship Council standards the company made no apology to the certifying body or commitment to meet the stocking requirements, simply stating ‘the current limit of 500 tons per annum would require harvest at 1.25 kg which is not a saleable size.’

Publicly, the Department has misled the Oireachtas, with the Minister for Agriculture informing Deputy Daly in a written Parliamentary reply on June 15, 2015 that ‘My Department has identified the issue of possible overstocking, although not widespread, as a key operational priority over the next twelve months for the Monitoring and Compliance Unit of my Department’s Aquaculture Licensing Division.’

 

In fact exactly twelve months later the Department’s Aquaculture Licensing Division recommended that Marine Harvest’s Lough Alton smoult hatchery have its licence rescinded for overstocking on the basis of Marine Engineering Division Fin Fish Inspection Reports. The company freely admitted the overstocking to the Department, citing ‘legitimate and thoroughly justifiable business reason’. Lough Alton supplies 70% of Marine Harvest’s smoults for all its production sites in Ireland and limiting production to the licenced amount here would curtail overstocking at all their sites.

 

In spite of being advised that Lough Alton was ‘an important case with potentially significant implications for the company and also for the Department’s licensing regime’, the Assistant Secretary General advised against the recommendations to rescind the licence for over-stocking, advising that such a Ministerial decision would have a ‘disproportionate’ commercial impact.

 

The Secretary General, upon asking if there was an assessment of the impact of the overstocking on the environment, was told by the Assistant Secretary General that not only was there ‘no assessment of the impact on the environment’, but that the Department was ‘not sure we are equipped to carry out such an assessment’.

 

In fact the extensive and thoroughly researched  Report submitted to the Assistant Secretary General by the Aquaculture and Foreshore Division recorded that Donegal County Council informed the Department that Lough Alton site has been ‘been consistently [emphasis in original] In breach of their [discharge] licence conditions’ and ‘persistent’ requests for an action plan to address the breaches had been met with a refusal by the company who ‘cited economic reasons for not implementing the of treatment facilities which their current production rates would demand in order to achieve compliance’.

 

Compliance with Condition 1 of the Department’s Aquaculture Licence required compliance to Donegal County Council’s Discharge Licence.

 

The Assistant Secretary had in front of him emails from the Executive Scientist at Donegal Council’s Central Laboratories’ who actually pleaded to the Department on 4 May, 2016:

 

‘If there is any mechanism within your aquaculture licence to limit production capacity, which will positively act on compliance, we would welcome such a development.’

 

The Assistant Secretary was also silent about Marine Harvest’s  statement to Donegal County Council that there were ‘economic reasons’ for the company’s non-compliance.’

 

Last week the same Assistant Secretary General appeared before the Oireachtas Committee on Agriculture. Deputy Thomas Pringle expressed these concerns about a conflict of interest in the licencing system on our behalf. Dismissing these concerns, inter allia citing other Departments with similar ‘host’ duties, the Assistant Secretary General concluded that ‘The regulatory and development are not separate arms…’ ‘They are heavily interlinked and we do not see them as two completely separate issues.’

 

That is the problem.

 

This Appeals Board cannot rely on a licensing system in performing its statutory duty when the evident conflict of interest leads to an authority amending licences without assessment  even when faced with stark evidence of existing discharge exceedances provided to them by another statutory body with licencing authority for the same operation.

 

Nor is an applicant who openly informs a licencing authority that he has no intention of meeting his licencing conditions a fit person to hold a licence.

 

We would respectfully point out that ALAB is constricted under the legislation only to licence aquaculture ‘if satisfied that it is in the public interest to do so’. We would urge the Board to consider the evidence we have outlined today and uphold this appeal in the public interest.

 

 

 ENDS

AIL QUESTION 

  
  NO.   216, 217, 218, 219 & 220
  
  
 

To ask the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs the action that was taken in response to the report prepared by the National Parks and Wildlife Service on 2 December 2015 in response to parliamentary question number 634 of 1 December 2016 which reported that, under a licence granted for thinning for firewood (details suppled), up to 30 oak trees between 60 to 80 years old, with the occasional older tree had been felled in spite of a detailed condition in this licence requiring the retention of these specific oak trees.. 

- Clare Daly. 
 

* For WRITTEN answer on Thursday, 10th November, 2016. 
  
[GFL 16107] 
  
Ref No: 34351/16 
 

 

To ask the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs if she had informed the Minister for Agriculture, Food and the Marine's Forest Service of parliamentary question number 634 of 1 December 2016 regarding felling in an ancient woodland (details supplied) in County Longford and the report provided to her NPWS confirming the felling of mature oak trees specifically protected in the licence to determine if a licence had been issued and to coordinate a response with the authority responsible for licensing the felling of trees. 

- Clare Daly. 
 

* For WRITTEN answer on Thursday, 10th November, 2016. 
  
[Castleforbes Estate] 
  
Ref No: 34352/16 
  
To ask the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs the action she will take over the felling of the oak trees specifically prohibited under licence (details supplied), in view of the fact that the same operators are continuing to operate under two current licences for operations in this woodland. 

- Clare Daly. 
 

* For WRITTEN answer on Thursday, 10th November, 2016. 
  
[GFL 161097] [GFL 178854 & GFL 18440] 
  
Ref No: 34353/16 
  
To ask the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs the reason after requiring a condition that no felling would take place during the restricted bird nesting season from March to September in the first licence issued for forestry operations in a heritage woodland (details supplied) in County Longford, a subsequent licence was never provided to the ranger for comment and was returned to the Forest Service without any recommendation.. 

- Clare Daly.  

*    For WRITTEN answer on Thursday, 10th November, 2016. 
[GFL 16107] [GFL 178854] 
Ref No:   34354/16 
To ask the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs the details of any meetings she has held with the owner of a heritage woodland (details supplied) in County Longford; and the actions that were taken because of such meetings. 

- Clare Daly.  

*    For WRITTEN answer on Thursday, 10th November, 2016. 
Lady Georgina Forbes, Castleforbes 
Ref No:   34355/16 
 

R E P L Y 

  
 

Minister for the Arts, Heritage, Regional, Rural and Gaeltacht Affairs (Heather Humphreys, T.D.): 




I propose to take Questions Nos 216, 217, 218, 219 and 220 together. 
I am advised that the forestry activities referred to by the Deputy have been carried out under license from the Forest Service, which comes under the remit of my colleague, the Minister for Agriculture, Food and the Marine. While my Department was consulted by the Forest Service as the woodland concerned is situated adjacent to, and partially within, a Special Area of Conservation, it is a matter for the Forest Service to determine if there were any breaches of licence conditions and, if so, whether any action needs to be taken in relation to such breaches under the provisions of the Forestry Acts. 
Consultation by the Forest Service with my Department’s National Parks and Wildlife Service in connection with tree felling applications may be considered at various levels within the regional management structure but no inference should be drawn by an absence of specific comment, as the responsibility lies with the Forest Service to make its own decision. 
There has been no meeting between officials of my Department and the owner of the woodland concerned.

 

 

Minister for Agriculture

If the Minister was aware of the felling of up to 30 mature oak trees in 2015 in a heritage woodland which had been specifically detailed for protection in the licence [GFL 16107] issued by his Forest Service?

 

If the Minister was aware of the felling of a 100 year old sequoia tree this spring in a heritage woodland in County Longford when his Forest Service  had been assured by the licenced operator [Scottish Woodlands] that no sequoia trees would be felled?

 

If the Minister could explain why a felling licence for an ancient broadleaf woodland was issued without the standard consultation with the National Parks and Wildlife Service [GFL 18440] when two other licences in this location [GFL 16107 & GFL 178854] were so referred?

 

If the Minister can explain why as a result of complaints received felling was suspended in an ancient woodland in County Longford on24 March of this year, permitted to continue on 12 April, and then halted again on 12 May 2016?

 

QUESTION NOS:  635,636,637,638

DÁIL QUESTIONS addressed to the Minister for Agriculture, Food and the Marine (Deputy Michael Creed)
by Deputy Clare Daly,Clare Daly,Clare Daly,Clare Daly
for WRITTEN ANSWER on 15/11/2016  


 
 
* To ask the Minister for Agriculture; Food and the Marine if his attention has been drawn to the felling of up to 30 mature oak trees in 2015 in a heritage woodland which had been specifically detailed for protection in a licence (details supplied) issued by forest service.

- Clare Daly T.D.


For WRITTEN answer on Tuesday, 15 November, 2016.

* To ask the Minister for Agriculture; Food and the Marine if his attention has been drawn to the felling of a 100 year old sequoia tree this spring in a heritage woodland in County Longford when the forest service had been assured by the licenced operator (details supplied) that no sequoia trees would be felled.

- Clare Daly T.D.


For WRITTEN answer on Tuesday, 15 November, 2016.

* To ask the Minister for Agriculture; Food and the Marine the reason a felling licence for an ancient broadleaf woodland was issued without the standard consultation with the National Parks and Wildlife Service (details supplied) when two other licences in this location were so referred.; and if he will make a statement on the matter.

- Clare Daly T.D.


For WRITTEN answer on Tuesday, 15 November, 2016.

* To ask the Minister for Agriculture; Food and the Marine the reason as a result of complaints received, felling was suspended in an ancient woodland in County Longford on 24 March 2016, permitted to continue on 12 April 2016, and then halted again on 12 May 2016; and if he will make a statement on the matter.

- Clare Daly T.D.


For WRITTEN answer on Tuesday, 15 November, 2016.

  
REPLY.
Between 17th April 2014 and 23rd September 2015, three felling licence applications were submitted to my Department and approved in respect of the lands in question. These were as follows:

The first licence was for the thinning of 27.76 hectares and clearfell of a further 7.43ha

The second was  for the thinning of 66.32 hectares

The third licence was for the thinning of 14.34 hectares

The applications were processed by the administrative and inspectorate staff  in my Department.  In relation to the first two licaneces, as the area proposed for felling intersected with a Special Area of Conservation (SAC) and Special Protection Area (SPA), the views of the National Parks and Wildlife Service (NPWS) were sought.

The area covered by the third licence lies outside of the SAC and SPA and involved thinning.  In these situations, referral to NPWS is at the discretion of the Forest Service, and it was deemed unnecessary in this case.

In March 2016, concerns about the felling were raised with the Department and at the request of the Forest Service operations ceased on site for the areas relating to the second and third licence.  At that time, felling within the first licence area had been completed.  Following discussions with the contractor and further site assessments by the Forest Service, NPWS and an ornithologist engaged by the operator, the Forest Service was satisfied that the operations were appropriate and that the licenses issued were in keeping with agreed procedures.  The request to cease operations was lifted on 12th April, conditional upon stated requirements.  A speedy resumption and completion of the felling work was sought in order to have the work completed before possible nesting began.  On 11th May, work on the site ceased and was scheduled to resume at the end of the Summer.

A basis for lifting the request to cease operations on the 12th April was the commitment of the contractor to retain sequoia onsite within the area of the second licence (unless overriding health and safety concerns arose).  There was no condition on the original general felling licence that required the retention of that specific species.

In recent days, the Department received a report that sequoia trees had been felled on site. The Forest Service inspected the site on the 9th November and noted that three sequoia stumps were observed in one of the two areas within which these trees are present, as previously indicated by the contractor.  In the opinion of the Forest Service Inspector the three sequoia appeared to have been felled in spring or very early summer and it appeared that the felled sequoia were quite likely to have been dominated by larger sequoias, as there continues to be a closed canopy following the removal of the trees.  Following this inspection, the contractor was contacted and he explained that three small sequoias were felled for the following reasons;

  • They were suppressed by the dominant sequoia overhead and therefore had little or no living crown remaining;
  • They were either dead or dying;
  • They represented a health and safety risk.


The Forest Service has not received any complaint regarding the felling of oak on this site.  Any information regarding possible illegal felling should be forwarded to the Felling Licence Section, Johnstown Castle Estate, Wexford.

 

 

 

 

QUESTION NO:  219

DÁIL QUESTION addressed to the Minister for Agriculture, Food and the Marine (Deputy Michael Creed)
by Deputy Clare Daly
for WRITTEN ANSWER on 24/11/2016  


 
 To ask the Minister for Agriculture; Food and the Marine further to parliamentary question number 636 of 15 November 2016, if he will clarify the records over reports of the felling of sequoias in an ancient woodland in County Longford (details supplied); and the steps he will take to ensure that the contractor and other contractors cannot ignore commitments made to the Forest Service. (Details Supplied) as the files show that he omitted part of the written ‘basis for lifting the request to cease operations on the 12th April’, failing to fully quote the grounds for felling the sequoias in question which he gave as ‘(unless overriding health and safety concerns arose)’ which in his Service’s letter to the contractor reads ‘(unless overriding Health and Safety concerns arise, in which case contract the Forest Service)’, and that no such contact was made, as he confirms by saying his Forest Service was unaware of any felling of sequoias until it received a report ‘in recent days’;
  
REPLY.


Following concerns raised in March 2016, the Department requested that operations would cease onsite, pending investigation. Operations subsequently recommenced based on an e-mail from the Department to the Contractor on 12th April 2016. This included an instruction regarding the retention of sequoia onsite, unless overriding health and safety concerns arose, in which case, the Department was to be contacted. 

The Department was not subsequently contacted by the Contractor regarding the felling of sequoia trees.

A report from the Friends of the Irish Environment, dated 9th November 2016, was received by the Department, stating that sequoia were felled on 13th May 2016. An inspection by the Department on the 9th November 2016 found the stumps of three sequoia trees, which appeared to have been felled in spring or very early summer. 

Following contact from the Department, the Contractor stated  that these three sequoia were felled for the following reasons: 

  • they were suppressed by the dominant sequoia overhead and therefore had little or no living crown remaining;
  • they were either dead or dying;     
  • they represented a health and safety risk.


The instruction regarding the retention of sequoia does not form part of the conditions of any of the issued felling licences. However, the matter concerning the breach of this instruction is being raised with the Contractor. 

QUESTION NO:  220

DÁIL QUESTION addressed to the Minister for Agriculture, Food and the Marine (Deputy Michael Creed)
by Deputy Clare Daly
for WRITTEN ANSWER on 24/11/2016  


 
 To ask the Minister for Agriculture; Food and the Marine further to parliamentary question number 636 of 15 November 2016, if he will clarify his reply, on which he based his statement that the Forest Service has not received any complaint regarding the felling of oak on this site (details supplied); and if he will make a statement on the matter. (Details Supplied) as he was informed of the felling by an environmental organisation (Friends of the Irish Environment) on 16th May, 2016, his Private Secretary acknowledging this report on the 18th of May [Ref:2016/55571P], stating that he had forwarded the report ‘for the attention of the relevant Department officials’; providing documentation detailing the felling of approximately 30 oaks of between 60 and 80 years old of veneer quality timber, trees that had been specifically identified for protection under the Instructions issued with the licence [GFL16107] but which were felled in September 2014 in spite of the Instructions stating that ‘mature specimens of oak were to be found along the perimeters of these plots and therefore ‘to leave all Oak Holly and Roan standing’, and the contractor’s written statement [NPWS to Scottish Woodlands 11 December 2014] that the ‘resultant timber would be extracted by forwarded to the roadside where it would be sold as firewood’ these trees were felled and shipped to specialist hardwood sawmill [photograph of stacked oak labelled with sawmill destination ‘Clonmore’ provided]
  
REPLY.


I received a letter from Friends of the Irish Environment on 16th May 2016.  This letter was brought to the attention of the relevant Department officials and I issued a reply to this letter on 18 May 2016.  I can confirm that at the time the Department staff did not view this letter as a report of Alleged Illegal Felling.  This matter, of oak trees felled, is now being investigated.