The Regulatory Review as part of Project Woodland, published in June 2022, contained the following Recommendations;
“The EIA Directive provides that Member States may, through their national laws, disapply the EIA Directive to projects which respond to a civil emergency if the Member State decides that applying the EIA Directive would have an adverse effect on the environment. The Irish High Court has held that this provision applies only to projects responding to an unforeseen emergency, not to projects intended to avoid foreseeable emergencies 71. The Habitats Directive and Birds Directive make no provision for projects responding to emergencies 72. The Water Framework Directive provides a very limited derogation in response to extreme force majeure events.
It is recommended that DAFM consult with the forestry sector and other key stakeholders and prescribed bodies on standard emergency response procedures, which will guide foresters planning for and responding to foreseeable emergencies such as storms, fire, disease etc. Standards may be subject to prior SEA screening and AA screening/AA, as required, prior to adoption. An afforestation licence application would be accompanied by a proposed emergency response plan, prepared in accordance with the standards. Once assessed and approved, it would be up-dated periodically (e.g. 3-5 years) or as frequently as required to take account of changes to the forest and the receiving environment and the different emergency risks which may emerge as the forest matures. The proposed emergency response plan would be part of the project that is assessed before the afforestation licence is granted.
It is recommended that, pursuant to recommendation 14, the Forest Regulations may be amended to expressly exempt from the requirement for a licence any emergency works which are carried out substantially in accordance with an approved emergency response plan. DAFM should be given prior notice before the commencement of emergency works, and DAFM should reserve the right to step in and require a licence application to be made where it considers that there are likely significant effects which must be appropriately assessed before the works are carried out.
It is recommended that the standard conditions to be attached to an afforestation licence should include an obligation to give DAFM prior notice of any proposed emergency works, and that such works shall be carried out substantially in compliance with the emergency response plan as assessed and approved by DAFM.”
Save Leitrim submitted an AIE request to DAFM after Storm Darragh;
We wish to receive under the AIE Regulations, in electronic format; With reference to recommendations 17, 18 and 19 of the Project Woodland Regulatory Review (June 2022) (see below) Information related to the development of standard emergency response procedures. To include, but not restricted to, any consultations, actual or proposed, with a) the forestry sector b) other key stakeholders c) prescribed bodies To clarify, this could include any information related to consideration or discussion on the introduction of such procedures and changes to Regulation. There is a very strong public interest case to be made for this information.
Note: Two and a half years after the publication of the Report DAFM cannot find any information which would suggest that there has been any consideration of Recommendations 17, 18 and 19 of the Regulatory Review. In failing to implement the Recommendations DAFM have left Ireland exposed in terms of compliance with European Law for the major clear-up operations that are ongoing in plantations across affected areas.
As part of Ireland’s Bovine Tuberculosis (TB) eradication programme, if a beef finishing herd meets the necessary criteria, it is allowed to avail of a special status, known as a Controlled Finishing Unit (CFU).
A CFU herd is a specialised finisher of beef that does not deliberately engage in the active breeding of animals. It is a non-breeding herd which disposes of all cattle on the holding direct for slaughter and poses a minimal risk of infecting cattle on adjacent holdings.
To be considered eligible for CFU status, the holding must fulfill at least one of the following three criteria:
The cattle are permanently housed (never on pasture) or;
There are no contiguous holdings with cattle or;
The boundaries are walled, double fenced or equivalent so as to prevent any direct contact with cattle on contiguous holdings.
When a herd meets the criteria to be regarded as a CFU under the bovine TB Eradication Programme, the herd is restricted under the TB Regulations and a special official supervisory and testing protocol is established.
Such herds are not exempt from testing, reactor removal or disinfection requirements. Restricted CFU herds (feedlots) are TB tested at least once a year.
According to DAFM, the CFU status arrangement allows the delivery of an effective level of disease risk management while controlling the risk of further disease spread in compliance with animal health legislation, and enabling business continuity in this particular type of enterprise through the inward movement of cattle.
Cattle from CFU herds (feedlots) restricted under the TB Eradication programme are only permitted to move to an EU approved slaughter plant and may not be exported.
New figures obtained by Agriland from the Department of Agriculture, Food and the Marine (DAFM) show that as of November 2022, there are currently 374 Controlled Finishing Units (CFUs) or ‘feedlots’ in Ireland.
DAFM data also indicated that as of November 3, 2022, there were approximately 121,000 animals in CFUs. It can be therefore estimated that the average CFU has a herd size of 324 cattle.
The data comes as DAFM figures indicate that in the first nine months of this year, 308,500 cattle from CFUs were slaughtered at EU approved plants.
Deputy Matt Carthy asked the Minister for Agriculture, Food and the Marine if he will commission a social, economic and environmental impact assessment of factory-controlled feedlots.
The wildlife control aspect of the eradication programme incurred a cost of €7.7 million in 2023, up 20% on 2022, when around €6.4 million was spent in this area.
The programme includes a badger culling programme where they are implicated in a disease breakdown
The 2019 Programme for Government included a commitment to extend the badger vaccination programme nationwide and end badger culling as soon as possible, consistent with the best scientific and veterinary advice.
A new Irish bovine tuberculosis (bTB) eradication strategy was launched in 2021. Large scale vaccination of badgers has been rolled out under the new strategy, with over 20,000 km2 covered by the vaccination programme and 6,586 badgers captured in vaccination areas in 2021.
By 2021, over 20,000 km2 in Ireland was designated a badger vaccination area; this is more than half of the total area on which the DAFM wildlife unit operates. In these areas, vaccination is the default, although culling may still be carried out where required for epidemiological reasons. In 2021, the DAFM wildlife unit captured 6,586 badgers in vaccination areas, of which 3,958 were then vaccinated (badgers captured which are found to have been previously vaccinated are not re-vaccinated), and captured 5,868 in culling areas
Areas where badger vaccination was carried out in Ireland in 2021. Yellow areas are where culling is carried out; green areas are where vaccination is carried out. A tile is an area of 2 km by 3 km which is the operational management unit for badger culling and vaccination in Ireland
I refer to your request under the European Communities (Access to Information on the Environment) Regulations 2007 to 2018 (S.I. No. 133 of 2007, S.I. No. 662 of 2011, S.I. 615 of 2014 and S.I. No. 309 of 2018) (hereafter referred to as the AIE Regulations), for access to the following records in relation to peat extraction on the Bord na Móna landbank for the timeframe 2023 – 2024 YTD.
For the purposes of this AIE please include records related to the following sites:
Glenlough Bog
Kilaun Bog and/or Erin Peat
Derryounce Bog
Codd 2 / Sheridan Bog
Clynan Bog
By email dated 22nd October 2024, you provided clarification that the request relates to third party extraction only, applies to sites regardless of authorisation or rights and applies to the named bogs.
Decision Maker
By acknowledgement letter dated 22nd October 2024, you were advised that Ms. Ciara O’Loughlin, Legal Services Manager, would be the officer handling your request. However, due to annual leave, I have now been appointed in her place to make a decision in respect of your request.
The following records were identified as coming within the scope of your request:
Firstly, as a preliminary point you should note that the only bogs of the five you specified in your request, upon which Bord na Móna is aware of peat extraction having taken place in 2023/2024 by third parties, are Derryounce Bog and Codd 2/Sheridan Bog. In such circumstances, only information in respect of these two bogs is within the scope of your request. However, neither Codd 2/Sheridan Bog nor the section of Derryounce Bog upon which such extraction apparently occurred are in the occupation or control of Bord na Móna plc. or any of its subsidiaries.
Record 1) is only partially within the scope of your request, with a considerable amount of information outside of scope. In respect of the information that is within scope with regard to Derryounce Bog and Codd 2/Sheridan Bog, exemptions under Article 8(a)(i) (adverse effect on the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law; Article 8(a)(iii)(adverse effect on the protection of the environment to which that information relates) and Article 9(1)(b)(adverse effect on the course of justice (including criminal inquiries and disciplinary inquiries)), are applicable.
Article 8(a)(i)
Record 1) contains the identities of third parties, which constitute personal information in accordance with GDPR/the Data Protection Act 2018. These individuals have not consented to the disclosure of their identities by Bord na Móna plc. and disclosure is likely to have an adverse effect on the confidentiality of such personal information.
Article 8(a)(iii)
Record 1) also contains confidential information regarding the investigations/actions Bord na Móna is taking on foot of apparent peat extraction in Derryounce and Codd 2/Sheridan Bogs. The record also contains maps which would enable the location of such alleged extraction activities to be identified.
Knowledge of Bord na Móna actions/investigations on foot of apparent peat extraction on these bogs, together with the specific location/(s) of such extraction activities, would be of interest to persons engaged in such activities and/or persons who may be contemplating engaging in such activities. Such knowledge could influence decisions by such persons as to whether or not to cease/ not engage in such activities or to persist/ commence same. In addition, knowledge of specific location/(s) on which peat extraction is apparently taking place could prompt persons seeking to engage in such activities to seek out such locations, with a view to themselves engaging in unauthorised peat extraction activities in the vicinity.
Any peat extraction on boglands, particularly if on an industrial level, has the potential to damage such lands possibly irreparably or to a degree that will require considerable remediation. Therefore, in such circumstances I believe the exemption in Article 8(a)(iii) is applicable – adverse effect on the protection of the environment to which the information relates.
Article 9(1)(b)
Unauthorised extraction of peat is the subject of current investigations by the EPA and could potentially be the subject of criminal prosecutions and/or civil injunctive proceedings in due course. Further, such unauthorised extraction may in the future be the subject of enforcement action brought by the relevant local authority/(ies).
Disclosure of the information contained within Record 1) may prejudice ongoing investigation/(s) into alleged unauthorised activities and in turn any future criminal prosecution and/or civil proceedings instituted and may hinder the detection and identification of persons engaged in such activities, by alerting such persons to information in the possession of Bord na Móna, which may assist such persons in evading detection. Therefore, I am of the view that disclosure of the information would adversely affect the course of justice in accordance with Article 9(1)(b).
Record 2)
I have decided that you should be granted access to Record 2) in full.
Public Interest
I have considered the public interest in accordance with Articles 10(3) and (4) of the AIE Regulations. The interests in favour of disclosure include the public interest in making environmental information publicly available, in facilitating members of the public in exercising their rights of access under the AIE Regulations and in enabling members of the public to be informed in respect of peat harvesting by third parties on bogs within the State.
However, the public interest in ensuring the right of access to environmental information is not unlimited and the AIE Directive and in turn the AIE Regulations, recognise that there are situations where environmental information should not be disclosed in the public interest. There is a public interest in the protection of personal information and in its disclosure only in accordance with the provisions of the Data Protection Act 2018/GDPR. Further, there is also a public interest in the safeguarding and protection of the environment. Where disclosure of information could potentially lead to an increase in and/or persistence of activities which may be unauthorised and/or unlawful and which have the potential to damage and harm that environment, the public interest against disclosure must outweigh that in favour. Additionally, there is a public interest in ensuring that investigations into apparent unauthorised and/or unlawful activities are not prejudiced or impeded by disclosure of information.
Weighing up the competing public interests, I am of the view that the public interest is best served by refusal of Record 1).
Right of Review
Under Article 11 of the AIE Regulations you have a right to request an internal review of this decision. An internal review involves a complete reconsideration of the matter by a member of the staff of Bord na Móna plc, unconnected with the original decision, of the same or higher rank than the original decision-maker, who may affirm, vary or annul the original decision.
If you wish to request an internal review, you can do so in writing to InformationOfficer@bnm.ie, referring to this decision and quoting the AIE reference number. This request must be made within one month of the date of receipt of this decision. The decision of an internal review will be communicated to you within one month of receipt of your request for an internal review.
You can contact InformationOfficer@bnm.ie if you require any assistance in relation to your request.
With regard to the appellant’s position that it is “inconceivable” no relevant information exists or is held by the Department concerning the decision to introduce the legislation at issue, I certainly consider it highly unlikely that no such information exists or is held by the Department. However, in the absence of any information as to any searches the Department undertook to identify relevant information, I am unable to make a finding on the matter.
“Under the AIE Regs to request all correspondence related to AIEs on turf cutting and/or Turbary Rights for the Years 2021-2024 YTD. Please include original AIE requests, decisions, internal reviews and decisions on appeal.”
