Oct 212011
 

 ICMSA

 

Submission

 

On Draft European Communities

(Environmental Impact Assessment)

(Agriculture) Regulations 2011;

A Guide for Farmers

 

 

 

And

 

Guidance for Planning Authorities on Drainage and Reclamation of Wetlands

Consultation Draft

 

 

 

 

 

October 2011

________________________________________________________________

ICMSA Views and Comments on

Draft European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011; A Guide for Farmers

 

Part 2; Activities Covered

 

3. Restructuring of Rural Land Holdings

 

(b)        Re-contouring (within farm-holding)

ICMSA believe that the screening process in assessing the impact on the environment should take account of the depth of the re-contouring. Many farmers carry out low depth/infill re-contouring on large areas but with no impact on the environment.

 

There is a self evident necessity that the current wording needs to be expanded, clarified and qualified to exclude the “levelling of land” from any requirement for screening and/or consent. Furthermore, there is need to set down objective parameters so as to provide an objective assessment for screening or consent decisions and a challenge to one or both of same in the context of an appeal.

 

The SI contains no definition of re-contouring either in Regulation 2 (Interpretation), Regulation 3 (Application) or in the Schedules. In addition, the draft Guide while it contains a reference in 3.(b), the example of re-contouring of land is limited to the levelling off of hills or the infilling of hollows and is devoid of detail. Thus, it is our considered view that the SI itself and the Guide must qualify re-contouring provisions by way of exempting an activity which changes the level of the current surface by not more than 1 metre on average and/or where the volume of material moved is not greater than 5,000 m³ per hectare.

 

 

 

4. Commencing to Use Uncultivated Land or Semi-Natural Areas for Intensive Agriculture

 

The Guide must provide a clear definition of Intensive Agriculture. ICMSA believe that the definition of uncultivated land proposed in the draft Guide is too wide because there are large tracts of land which are used for farming throughout the country that are not perennial ryegrass dominated grasslands.

 

This particular section of the Guide is unclear and indeed confusing and ICMSA believe that it is essential that there is a clear and more importantly reasonable definition of what is uncultivated land and semi-natural areas and then in addition what is the activity on these two types of land that is sought to restrict or prohibit. The activity is stated to be ‘commencing to use uncultivated land and semi-natural areas for intensive agriculture’ and ‘increase the agricultural productivity’ of the said lands. Is this activity the same but with two phrases to cover the same activity or are they two separate activities. We do not accept the definition of uncultivated land delineated by the 15 year rule (which incidentally goes back in time of up to 15 years prior to coming into effect of the SI). Uncultivated land is land that was never cultivated. In addition, while related but separately, cultivation could include mowing grass or cutting rhododendron or invading briars.

Finally, we do not accept as it being reasonable, necessary or required by the ruling of the European Court of Justice against Ireland in this case that the use of uncultivated land in and of itself is prohibited but only in the context of the impact of intensively working these lands which have never heretofore been so worked, it is whether or not they significantly negatively impact on habitats. If this is the case not alone has the Minister no obligation to bring this in but it is settled law that the Minister has no power under the EC Act to do anything other than that which is necessitated by EU law.

 

 

 

5. Land Drainage Works on Lands Used for Agriculture

 

5.1              ICMSA contend that field drainage systems require not alone routine maintenance but also partial or total replacement and this work in relation to field drainage must not be included in     the thresholds now in place. ICMSA believes that it is absolutely essential that mere replacement, in total or in part, of an existing drainage system must be excluded from the current thresholds as it does not represent new drainage and therefore will not have any further impact on the environment.

 

ICMSA believe that the Department must clearly outline how they propose to ascertain the area of land which will be affected by any new drainage system.

 

 

 

Part 3; Application for Screening

 

6.1              Significant Effect on the Environment

ICMSA is particularly concerned that the provision of the Regulations are exceedingly wide ranging and in effect puts every farmer on notice when they want to carry out any work on their farm, as any activity must be assessed on the basis of the criteria set out in Annex 3 of the Regulations. ICMSA believes it is essential that clarification is provided on what constitutes a ‘significant effect on the environment’. ICMSA contends that if the proposed activity is under the threshold and is not in a designated area then the farmer should not be subject to any further restriction or designation.

 

 

6.4              Thresholds

Clarification is required on the application of the five year period from a farmer’s perspective and how it will impact on farm development plans.

 

 

7.1              Screening Application

The current Guide does not provide any indication of how long a screening decision could take and ICMSA believes that the Department must provide a definite time-frame from the date of application for screening to notification of a decision to the farmer. ICMSA proposes that the following should be provided for;

 

“DAFF must issue a decision on the screening application, and the main reasons and considerations on which its decision is based, to the farmer within 4 weeks of the receipt of the request. If further information is requested and received, DAFF must issue the screening decision within 3 weeks of the date of receipt of the further information”

 

ICMSA is concerned with the following section in the S.I. No. 456 of 2011, which state as follows:

Part 3; Screening

7.(3) The Minister may consult with any consultation body or make such enquiries as the Minister considers necessary for the purposes of deciding on the application

 

 

ICMSA is extremely concerned with the involvement of a third party in the screening process and specifically we are concerned by the possible involvement of An Taisce. ICMSA believes that this will inevitable lead to relatively minor farm activity now being subjected to unnecessary scrutiny by outside parties. This process will inevitably lead to needless delays and costs to farming activities.

 

ICMSA proposes that where the Minister advice or a submission from a consultation body, or bodies, that all such information shall be made available to the applicant before any decision is taken by the Minister (other than a decision that consent is not required), and that the applicant will be given reasonable and adequate time to respond.

 

The Guide needs to clearly outline the internal review mechanism available to applicants in relation to screening decisions.

 

 

Part 4; Application for Consent

 

8. Application for Consent

Scoping Opinion must be provided free of charge by DAFF. ICMSA believes that the cost of an Environmental Impact Assessment must be funded by the State as it equates to an actual re-designation of agricultural land. Similarly, in the event of a Natura Impact Statement being required ICMSA believes that it is essential the State pays for this process.

 

In relation to consent ICMSA proposes that where the Minister consults with a consultation body and/or receives observations from a consultation body or a third party that all such information shall be made available to the applicant before any decision is taken by the Minister (other than a decision that development may proceed), and that the applicant will be given reasonable and adequate time to respond.

 

ICMSA believes that under no circumstances should DAFF publish details of an application for consent on the DAFF website for public consultation. There are a number of consultation bodies detailed in the Regulations and while ICMSA do not agree with the inclusion of all these bodies it is essential that routine farm work is not subjected to any further involvement from the public.

 

Part 5; Other Matters

 

11. Review (Statutory)

ICMSA believe the current review process as outlined in the draft Guide is totally inadequate and discriminatory. The only ‘appeal’ provided for in both the SI and the Guide is a statutory review to the High Court for consent decisions. ICMSA believes that this appeals mechanism as proposed is grossly and constitutionally flawed and will result in unnecessary costs for farmers.

 

ICMSA propose that DAFF must put in place a full appeals system both for the screening and consent phase of the process provided for by the Agricultural Appeals Office, and this must be provided for under a specific and comprehensive measure contained in an SI.  Statutory review proceedings are not a substitute for a full and comprehensive appeals system. The justification for this is based on a long string of judgements and to mirror what is available under the planning process.

 

The screening process is largely similar if not identical to the ‘declaration’ process under the planning regime and this is appealable to An Bord Pleanála. Of course a planning decision similar to a consent decision (either refusal or a grant of consent with conditions) must also be subject to appeal. It is also a fact that an application in the normal planning process can seek a review to either or both the planning authority or An Bord Pleanála as a separate and distinct process to the appeal process. We find it incredible – to say the least – that this Regulation, which carries with it criminal sanction on indictment has no appeal mechanism other than a review. References to a related SI governing forestry cannot be a justification for this statutory flaw in the legislation.

 

Forcing a farmer to carry out an EIA in itself is a costly exercise and a farmer faced with an unreasonable decision of the Department in this regard has to choose between either engaging an expert to carry out the assessment or seeking to review the Minister’s actions in the High Court. This, to put it plainly, is not reasonable or justified. The appeal must provide in addition to an appeal generally to the screening and consent process an appeal attached to a consent decision, appeal against a prohibition notice and reinstatement notice, in effect any decision of the Minister in the process.

           

 

 

Other Issues;

 

  • ICMSA questions the relevance of the inclusion of the following in SI No. 456 of 201; Regulation 13 (5)(b)(ii) is likely to have an adverse impact on human health,

 

 

 

 

 

 

 

 

_________________________________________________________________________

ICMSA Views and Comments on

Guidelines for Planning Authorities on Drainage and Reclamation of Wetlands

Consultation Draft

 

Planning and Development (Amendment) (No. 2) Regulations 2011

 

 

ICMSA believes that the current definition of wetlands as provided for in the Regulations is extremely vague and that further clarification is required on the definition and description of ‘wetlands’ for example what exactly are ‘biogeochemical functions’.  Also, the Regulations refer to a ‘significant adverse effect on the environment’ but there is no definition of what constitutes a ‘significant adverse effect’ provided for in either the Regulations or the guidelines.

 

ICMSA contend and notes the agreement of the Department of the Environment that ‘periodic’ means a period of inundation or saturation in every year, thus, if the land does not suffer such inundation or saturation in every year they are not ‘wetlands’ for the present provisions. The issue then turns to the minimum period within every year that is required. This period of time within every year cannot be such as to be measured in days or scale of inundation (saturation by definition being full or not). The length of time is what is required to reasonably support the biogeochemical functions and will be specific to the site. Thus, if there is no biogeochemical function that is of environmental concern by definition the land in question is not wetlands for the purposes of the Regulations.

 

The interpretation of the word for ‘farm holding’ cannot be an economic or Single Payment Scheme but rather that parcel of land in question which may be a holding in its own right or part of a holding for Scheme purposes.

 

ICMSA are extremely concerned with the wider implications of these Regulations for drainage and reclamation on a farm with no ‘wetlands’ or on a part of the farm that is not ‘wetlands’. Because of the perceived impact on ‘wetlands’ on that farm or another farm these could be subjected to planning regulations.

 

ICMSA believes that clarification is required in the case of proposed works that do not exceed the threshold then who will decide if the activity will have a significant effect on the environment.

 

 

Appendix 4

‘Drainage ditches’ must be removed from the list of areas that fall under the classification Freshwater Wetlands.

 

 

Appeals

ICMSA propose that no fee shall apply where an owner occupier seeking a declaration from the planning authority or is applying to appeal a decision as a result of a declaration/referral to An Bord Pleanála.