Under the Forestry Regulations the following are “consultation bodies”;
(a) where relevant, a Minister of the Government,(b) the Environmental Protection Agency,(c) the National Parks and Wildlife Service of the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs,(d) Inland Fisheries Ireland,(e) the relevant local authority (as defined under section 2 (as amended by the Local Government Reform Act 2014 (No. 1 of 2014) of the Local Government Act 2001 (No. 37 of 2001)),(f) the National Roads Authority,(g) An Taisce — The National Trust for Ireland,(h) any other person having a statutory function or a specialist skill or expertise in or knowledge of a particular relevance that the Minister considers appropriate having regard to the matters referred to in the application;
(h) is rarely exercised (eg referrals to Irish Water where drinking water could be affected)
Q: have there been any direct referrals to eNGO’s that are involved in relevant survey works, such as Birdwatch Ireland, Irish Raptor Study Group, Golden Eagle Trust, etc who may have more up to date information than the NPWS. A case in point is where a Hen Harrier nest location has been identified within the last week with three successful fledglings (as part of the ongoing National Survey). This is not, as yet, on any official record accessible by the Forest Service. There are around a dozen projects still in the licencing process or licenced but unexercised that are within the 1.2km “Red Zone” buffer but have no protection provisions for the Hen Harrier as it is not flagged on the FS system.
FS has a referral protocol. Most of this protocol has been developed unilaterally by DAFM – i.e. the prescribed consultation body does not get a say in which applications are referred to it.
The Forestry Regulations give total discretion to the Minister as to when to consult.
Notice to consultation body
9. (1) Where the Minister receives an application under Regulations 5, 6 or 7 and it appears to him or her that the proposed development— …………………………
There is significant individual discretion left with Forestry Inspectors to make referrals.
The response from Inspectors at appeal when questioned as to why referral was not made to a particular body is that it wasn’t ‘mandatory’ – this ignores the fact that all referral is discretionary under the Forestry Regulations.
Referrals are made on the basis of a protocol, not required under statute.
What is more significant is how often the FS disregards the recommendations of the Consultation bodies. There is an AIE in at the moment which requests referrals and responses between FS and NPWS. This AIE may give some insight into the process, and if/where NPWS recommendations are taken onboard.
There are multiple examples of NPWS, IFI and County Councils objecting (in their referral response) to afforestation or re-forestation of sites.
Example: In the case of Leitrim County Council this is where the Council considers the works to be in contravention of the County Development Plan. Forest Service proceeds with the application and gives no reasoning in its decision making process for not following the recommendation of the consultation body.
Volunteers are doing some important work on local authority consultation responses (going back around 20 years) where the FS has been ignoring the Council recommendations.
NPWS have been routinely recommending leaving 25% Open Space at re-stock on licences within the Slieve Blooms SPA to support the conservation objectives of the Natura Site (Hen Harrier). Forest Service response (at appeal to the FAC) is that this would involve deforestation and is contrary to the obligation to replant.
Note: The obligation to replant can be waived on over-riding environmental grounds.
Consultation bodies are the bearers of inconvenient truths to the FS.
This situation highlights the (legally problematic) potential conflict of interest between DAFMs promotional role for forestry (replete with planting targets) and its its licencing function. Is there an inherent bias towards approvals to meet targets?