Date of decision: 3 October 2022 Appellant: Mr. A.
Public Authority: Department of Agriculture, Food and the Marine [the Department]
Issue: Whether Department were justified in refusing the request under articles 8(a)(i) or 8(a)(iii) of the AIE Regulations, whether the request was manifestly unreasonable within the meaning of article 9(2)(a) of the AIE Regulations.
Summary of the Commissioner’s Decision: The Commissioner annulled the decision of the Department and directed that a fresh decision-making process be carried out in respect of the appellant’s request.
This appeal concerns the Integrated Forestry Information System (iFORIS), which is a system maintained by the Department to support the processing of forestry license and scheme applications and payments.
On 1 April 2021, the appellant requested “a copy of, or access to, all spatial datasets available on iFORIS used by DAFM in connection with assessing Forestry Application and Licenses.” The appellant stated in his request that he was seeking access to spatial data only, and not to any personal data where consent for disclosure has not been given by the individuals concerned.
The Department issued a decision on 29 April 2021. It refused the appellant’s request under articles 8(a)(i), 8(a)(iii) and 9(2)(a) of the AIE Regulations. The Department stated that the data in question would amount to terabytes in size, and it was not feasible for the Department to supply this amount of data. The decision found that the datasets sought contained confidential personal information and information that would indicate the location of protected species. The decision also stated that many of the datasets sought are publicly available elsewhere and should be sought from the “authoritative sources”.
The decision considered the weighing of the public interest served by disclosure against the interest served by refusal and concluded that the public interest was best served by withholding the information sought.
The Department says that it holds over 100 layers of data relevant to the appellant’s request which amounts to terabytes in size and as a result, the request is manifestly unreasonable. This Office’s investigator wrote to the Department seeking further information on the steps that would be involved in processing the appellant’s request such as an estimate of time length of time it would take to fulfil the request and the impact this would have on the functioning of the Department. The Department responded stating that it would take “potentially weeks of work” to prepare the material for release, but did not provide any further information to support this statement. The Department stated that it is simply not feasible for it to supply this amount of data, but have not set out why that might be the case.
What is the current advice on planting within aquatic set-backs?
Can you comment on situations where timing mitigations that should apply to the same site can conflict each other? e.g. requirement to fell in summer to minimise impacts on aquatic H&S vs requirement to fell in winter to avoid impacts on breeding birds ?
How do you determine if heath habitat is good enough to be Annex I? [Criteria for Annex Heath habitats can be found under the document Irish Wildlife Manuals, No. 79 from NPWS- Guidelines for a national survey and conservation assessment of upland vegetation and habitats in Ireland] [Annex 1 habitat also visible on https://airomaps.geohive.ie/ESM/ ]
NIS for NWS… Can you do one NIS for both the felling and the other operations or are you talking about two NISs ?
It would be useful to consider how undesignated sites of high biodiversity value are captured. I’ve seen several fen sites in Westmeath that have been afforested within the past 5 yr. How are FS inspectors and foresters in general being equipped to identify and avoid planting these sites?
Can you re-submit a FS AA screening report that was carried out for a TFL application in support of a new forest road application on the same property?
Large areas of wetland/peatland habitat in Co. Wicklow which has been identified as recognised wetland sites in the county are continuing to be planted with SS
Are there plans for FS Ecologists to do the AA Screening rather than having it done by FS Inspectors?
“There is enough evidence observed to warrant that the file is forwarded to the EIA section for their assessment. The location is tonashammer, it is north of castlepollard and west of dromone. Over 500 metres of hedgerow has been removed (not trimmed) and nothing is remaining only bare soil. The total area of the works is ca 6.5 ha and there are wetlands present. Part of the area overlaps or is adjacent to a pNHA”
Report from site visit conducted following a cross report of a possible breach of Environmental Impact Regulations (Agriculture) in relation to work being carried out on lands at Tonashammer, Co. Westmeath
As part of an AIE request, we are seeking to understand the process whereby DAFM Forest Service refer forestry applications to Inland Fisheries Ireland for feedback
This table outlines the number of forestry applications (nationally) assessed by IFI Environmental Officer for the period January – July 2022:
DAFM FS refer a significant volume of licence applications to IFI, so we took a look initially at just the referrals for the East River Basin District (ERBD), and then focused in on Wicklow, and on just the clearfell referrals.
Note email below to Eastern River Basin District (ERBD) on July 15th 2022 from the Department of Agriculture, Food and the Marine in relation to felling licence applications.
From the licence application list provided the IFI local Environmental Office initially screened out applications in the Wicklow area and then further refined the felling applications to be commented on, based primarily on their proximity to a watercourse and the sensitivity of the watercourse and provided a response in respect of these applications.
There was a total of 79 applications in this tranche for the Wicklow area with a total of 45 responses submitted by IFI from the time of receipt on 15/07/2022 to 04/08/2022.
The responses are generic in their content however there is also individual elements specific to each river or clearfell application contained within each response.
IFI confirmed that the resources to do a deep dive into each application is not available and would probably involve site visits.
Note: DAFM FS allow a 4 week timeframe for response, but often batch large volumes for consultation on the same day. This is likely to overwhelm the available resources of the consultation body, in this case the IFI. Consultation bodies can apply for an extension.
With regard to applications for felling licences, pursuant to Section 17(5)(a) of the Forestry Act 2014, the Minister may consult any person whom he or she considers to be appropriate. To this end, the Minister issues felling licence referrals to a number of statutory authorities and other bodies of which Inland Fisheries Ireland is one. Inland Fisheries Ireland is now invited to submit comments and observations in respect of the felling licences referenced in the above table. The timeframe in which a response is expected is four weeks. Please note, if no response is received within this timeframe, “No Comment” will be noted in respect of the files listed above. Should you require an extension please notify the Dept as soon as possible.
While the Minister will have regard to any written submissions or observations received in respect of any such felling licence application so referred, he or she must be mindful that where he or she decides to grant a licence, in whole or part, with or without conditions, in attaching any such conditions to the licence, those conditions must be within the powers conferred upon him or her by statute, and will be guided in doing so by the following criteria for the imposition of conditions, namely that they are necessary, relevant to the project or activity for which a licence has been sought, enforceable, precise, and reasonable.
The Minister will also have due regard to other statutory obligations placed upon him or her, as well as taking account of the relevant policies or objectives of the Government as regards the development and promotion of forestry in a manner that maximises the economic, environmental and social value of forests within the principles of sustainable forest management.
Applications referred to you are available to view in the Forestry Licence Viewer. The FLV may be found here https://forestry-maps.apps.rhos.agriculture.gov.ie/ . The user will be able to see the site boundaries and can see other applications for forestry licences in the area (applications from 1st January, 2018). Looking at a specific application by keying in the reference number in the search box, the user can view the application documents, including maps.
The proposed clear felling refers to lands in the upper catchment of the Ballydonnell Brook_010 which has a current WFD status of Moderate and which must be improved to a minimum of good status.
The Ballydonnell Brook is a tributary of the River Liffey which flows into Poulaphouca Reservoir, the main drinking water supply source for the greater Dublin area.
The clear-felling is in an area of peaty soils, raises concerns about peat deposits entering watercourses resulting from forestry harvesting activities, posing a significant environmental threat to water quality.
Poor water quality will impact upon fish, benthic invertebrates and aquatic flora and these are the primary biological elements used in the classification of waters in the context of the WFD.
The proposed clear felling refers to lands in the catchment of the river Dargle_020 which has a current WFD status of Good and which must be maintained.
This Dargle river is an important salmonid system supporting populations of Atlantic salmon, Sea trout and Brown trout and is a designated in accordance with Salmonid River Regs (S.I. 293) affording the river extra protection in law.
It represents a valuable resource both in terms of local natural heritage (biological diversity value) and particularly from a native fisheries perspective.
The clear-felling raises concerns about suspended solids and nutrients entering watercourses resulting from forestry harvesting activities, posing a significant environmental threat to water quality.
Poor water quality will impact upon fish, benthic invertebrates, and aquatic flora and these are the primary biological elements used in the classification of waters in the context of the WFD.
Decision of Commissioner for Environmental Information
17 August 2022 Case: OCE-115109-S8Q5P5
Summary of Commissioner’s Decision: The Commissioner found that the request has not been dealt with in accordance with article 4(5) of the Directive because the Department has:
A) failed to give sufficient reasons under the AIE Regulations for refusing to release all records relating to the development of a procedure by the Forest Service for addressing any issues regarding the construction of potentially unsanctioned Forest Roads. B) failed to carry out the balancing test required by article 10(3)-(5) of the AIE Regulations and to give reasons for its conclusion, when attempting to rely on an exception in respect of its refusal to provide the information requested.