The issue for resolution in this appeal is a net one: whether Raheenleagh Power DAC (“RPD”) is a public authority within the meaning of the European Communities (Access to Information on the Environment) Regulations 2007-2008 (“the AIE Regulations”)
Right to Know CLG (“RTK”) is a company limited by guarantee whose objects are to improve, promote and advocate for increased rights of public access to information. It was incorporated on 24 July 2015. On 22 February 2017 RTK sought access to environmental information held by Coillte Teoranta (“Coillte”) in relation to a wind farm located at Raheenleagh Forest in County Wicklow. Coillte granted part of the request and refused access to some of the environmental information sought on the basis that it was not held for or on behalf of Coillte. The information was held by RPD
Concerns identified by farming representative organisations
The following are the main points raised by the various farming representative organisations at the Consultative Committee:
Farmland in hen harrier areas tends to be relatively unproductive and there is a significant challenge in achieving an adequate income for farm families. Although specific restrictions on activities (ARCs) are few, farming activities are seen to be significantly curtailed by these designations.
It is seen as critical to farming in hen harrier areas that farming and forestry are allowed to co-exist. Farming representative organisations want restrictions on forestry removed. The premia under the Afforestation Grant & Premium Scheme are potentially a substantial and important income stream for farmers and operate on a 15-year contract basis which provides much greater security than a typical 5-year contract life for agri-environment schemes.
The application of rules on eligibility for the Single/ Basic Payment has been seen as penalising farmers who have or are managing their land in a way that is suitable for hen harriers, and complete clarity is required. It was frequently asserted that farmers who allow vegetation, such as heather and rushes, to grow to a height that is optimal for Hen Harrier are liable to penalties under the eligibility rules. There have been reports, including by NPWS to DAFM, that farmers have cleared important habitats on their farm (e.g. scrub, boggy areas, nest and roost sites) to maximise GLAS payments, as the existing habitats were deemed ineligible for Pillar 1 payments and thus GLAS payments also.
The basic value of land for farming in the uplands including SPAs is generally low. However, land value increases if it is eligible under the Afforestation Grant & Premium Scheme. If there is an automatic bar on the Scheme due to an SPA designation, not only are the grant and premiums not available, but the land is worth several times less and is likely to be difficult to sell. This impacts on potential income and also on the value of farms as collateral for bank loans. Farming organisations want to see the DAHG farm plan scheme re-introduced and DAFM agri-environment payments increased.
There is great concern that further restrictions might be placed on areas outside existing SPAs which surveys have shown are important for hen harrier.
Concerns were also expressed about the additional burden in relation to planning permissions and related matters and, more generally, that opportunities for farmers outside but close to SPAs are greater than those available to neighbouring farmers whose land is designated.
The challenge therefore is how best to achieve the long term survival of farmed habitats that suit the hen harrier while providing a reasonable level of income for farmers and recognising that farmers in general want to farm well, and many are keen to improve agricultural efficiency and output where possible. The uncertainty about eligibility of lands for the Single / Basic Payment Scheme is a driver for habitat loss or disimprovement.
Concerns identified by Forest Sector organisations
The forest sector is of the view that the current forestry-related protection measures being enforced within SPAs in Ireland, including the cessation of afforestation and restrictions on forest operations, may not be delivering hen harrier conservation solutions and seeks alternative approaches. The sector notes that successful conservation of the hen harrier in Ireland requires effective and meaningful consultation of all affected parties to ensure their buy-in to the process. The latter view is widely shared by members of the Consultative Committee.
The Forest Sector called for annual surveys of breeding hen harrier in SPAs, rather than the current 5-year cycle. If feasible this could reduce the “red zones” in which management operations are more strictly controlled.
The forest sector also opposes any restrictions on forestry in the non-designated areas that are important to hen harrier.
Concerns identified by eNGOs
The eNGOs consider that more SPAs for hen harrier should have been designated in the first instance, and assert that, as per EU case law in c-374/98 Basses Corbières, the 3 areas of concern should have been protected under Article 4(4) of the Birds Directive as if designated.
They argue that hen harrier SPAs are not performing, that some breeding populations are now unviable and are concerned that there are as yet no conservation objectives for hen harrier SPAs. They consider that populations outside of SPAs are equally under threat.
The eNGOs identify forestry as the main threat to the hen harrier in Ireland, and that there is too much forest in the SPA network, with no transparency on afforestation decisions. They support a review of the “red zone” procedure, but subject to seven conditions set out in their submission.
In their submissions, the discrepancy between the length of Forestry incentives and the typical period of Rural Development Plan infrastructural Investment schemes is listed as a critical issue, and that the RDP could and should provide for longer contracts. There should be local engagement to develop locally-relevant incentives for restorative land management.
On agriculture, the eNGOS consider the GLAS prescriptions for hen harrier should be revised. The capped GLAS payments are not a sufficient incentive for farmers and the cap should be removed. Because of eligibility issues, destruction of Hen Harrier habitat is continuing. Pillar I and II issues on eligibility should be resolved. There also needs to be an agri-environment scheme for wintering hen harrier.
Guidance on birds and wind energy development is needed, along with wind energy development impact assessment guidelines.
Finally, they argue for education of farmers and local communities for positive change.
I refer to your request on for a review of the decision made by this Department on 15th August 2022 not partially release the records to which you requested access 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. No. 615 of 2014 and S.I. 309 of 2018) (hereafter referred to as the AIE Regulations).
A list of all unexpired and unexercised forestry licences (whole or part) (all schemes); a) within the six SPA’s designated for the protection of the Hen Harrier b) which contain mitigation to protect Hen Harrier during the breeding period
I was assigned to review your request. I made a decision on your review request on 12th September 2022. My decision on review is an entirely new and separate decision on your request and is explained below. I must inform you that I have not found any grounds to reverse the decision made by the initial decision-maker and accordingly I affirm her decision to refuse access to the records requested under Article 9(2)(a).
The Department does not collate information on unexercised forestry licences. In order for the Department to collate this information, the Department’s forestry inspectorate would need to visit every site for which an application has been made within those areas and provide a report on each site in question. This information would then have to be collated and cross-checked to create the list of sites which you refer to in your request.
Your request therefore would, in my opinion, place an unreasonable demand on the Department’s resources and would disrupt the Department’s ability to perform its core licencing functions.
In arriving at a decision on your request, I confirm that I have had regard to the provisions of Article 10 of the Regulations.
In line with Article 10(3), my deliberations have included weighing the public interest served by disclosure against the interest served by refusal.
The factors in favour of release of this information are to contribute to the already open nature of the forestry licencing process.
The factors in favour of withholding this information are those set out above.
There is no public interest in diverting the Division’s resources to compile the list that is being requested here. All the licences in question have undergone the full licencing process and were legal approved.
I have decided therefore that, on balance, the public interest in this case is best served by withholding this information.
Under Article 12 of the AIE Regulations you may appeal this decision, by writing to the Commissioner for Environmental Information at the address given below:
Office of the Commissioner for Environmental Information 6 Earlsfort Terrace Dublin 2 D02 W773 Phone: +353-1-639 5689 It is also possible to appeal on the website of the Commissioner http://www.ocei.gov.ie.
Indicators of eutrophication: nutrients (eg. nitrogen and phosphorus), and various biological effect variables (eg. chlorophyll a, Secchi disc transparency, phytoplankton, zoobenthos).
Indicators of acidification (eg. pH, alkalinity, conductivity, sulphate, nitrate, aluminium, phytoplankton and diatom sampling)
Specific major ions (eg. chloride, sulphate, sodium, potassium, calcium and magnesium) as essential factors in determining the suitability of water for most uses (eg. public water supply, livestock watering and crop irrigation)
Metals (eg. cadmium, mercury, copper and zinc)
Organic micropollutants such as pesticides and the numerous chemical substances used in industrial processes (eg. PCB, HCH, PAH).
Indicators of radioactivity (eg. total alpha and beta activity, 137Cs, 90Sr)
Microbiological indicator organism (eg. total coliforms, faecal coliforms and faecal streptococci bacteria)
Biological indicators of the environmental state of the ecosystem (eg. phytoplankton, zooplankton, zoobenthos, fish, macrophytes and birds and animals related to surface waters).
In 2019, the Department received over 10,500 referrals as a Statutory consultee under all headings.
Development Applications Tracking System
This is both database and a case management system. NPWS have a company, who scans everything into a database, and cases are sent out to the various parts of NPWS to deal with.
NPWS get a lot of Forestry applications (about 1,600 /1700 a year) and they take up a lot of time – planting, felling licenses, aerial fertilization, forest roads
Complexity has increased, not just ecological, but legal / and procedural: ECJ Judgements, ABP rulings, Court decisions, changes to biodiversity legislation, changes to other legal codes (e.g. planning, waste, agriculture, foreshore) at Irish and EU (and indeed international levels), communications/complaints/ guidance from the European Commission, and guidance on Habitats Directive Assessments and Ecological Assessment.
NPWS Regional Ecologists work is taken up almost entirely with development applications
Authors: David Styles & Colm Duffy (University of Limerick)
2021 research by University of Limerick (AIE 2021 048 DECC)
Table 1 – clearly shows how afforestation and organic soil re-wetting are inter-related. The more organic soil rewetting the less afforestation required and vice versa to achieve climate neutrality
Table 1 also compares commercial-mix afforestation with conservation-mix afforestation in terms of achieving climate neutrality in the AFOLU sector by 2050 with not less than 251,250 hectares of organic soil rewetted by 2050.
The afforestation required by 2050 differs by only 1% ( i.e. 15% forestry cover for commercial-mix afforestation compared with 16% forestry cover for conservation-mix afforestation) depending on the type of afforestation.
“With a view to strengthening public access to information and transparency, timely environmental information with regard to the implementation of this Directive should also be accessible in electronic format. Member States should therefore establish at least a central portal or points of access, at the appropriate administrative level, that allow the public to access that information easily and effectively.”
The FLV was introduced by DAFM in January 2021.
The Forestry (Miscellaneous Provisions) Act (2020) amends the Forestry Act (2014) to provide for the following in respect of licence applications;
“the publication, on a website maintained by or on behalf of the Minister, of documents and information furnished to the Minister for the purposes of an application for a licence,”
The ‘About’ tab states:
The Forestry Licence Viewer (FLV) is an interactive mapping application which displays recent forestry licence information at a Parcel level and a Licence level.
The application presents details for Afforestation, Forest Roads, Private Tree Felling and Thinning, Coillte Clear Felling and Coillte Thinning licence types divided into different licence layers, which can be turned on or off using the Layers section of the website.
New applications for forestry licences received from 11th January, 2021 will have documentation displayed in the FLV.
Application documentation will be visible when the application is advertised and open for public consultation. Submissions will be available to view when they are received and processed. Decisions made on applications received from 11th January, 2021 may be viewed in the FLV as they become available, along with any assessments and supporting documentation used to arrive at the decision.
The Help tab merely gives details of Grant and Premium Categories and Biodiversity & Exclusion requirements of the Afforestation scheme.
There is no Help or explanation of the sites functions.
The Viewer does not explain the scope of what it shows and what it does not show. Importantly, there is no statement on the site to indicate that the Viewer is an incomplete record.
There is no linkage between the FLV and the Department’s Public Consultation web page. It would make sense for a link to be created on published application and decisions and the FLV.
There is no visual distinction on the map layers of the Status of a particular licence to indicate the following:
-Application open for consultation -Application under assessment -Licence approved, but open to appeal -Licence approved, but under appeal to the FAC -Licence remitted to DAFM by the FAC for re-assessment
-Licence approved and active – works yet to commence
-Licence approved and active – works ongoing -Licence approved and active – works commenced
-Extension to a previously approved licence due to expire
On the tab for a particular licence the status of a licence is only given in terms of the following; -Decision Pending Approved -Refused -Under appeal to the FAC
The tab does not indicate whether the particular application is open for consultation or subject to appeal. Where licences are within these categories no deadline dates are indicated.
The Viewer does not show ALL active licences
Licences issued before the FLV was introduced which are still active (i.e. works have not been completed) are not shown.
Felling licences, in particular, can be awarded for a period of 10 years. All active licences should be included on the Viewer.
Extension periods to existing licences are not indicated on the viewer, even if the extension has been awarded recently.
The Viewer provides a number of base map options but short of this no other spatial data options are available in order to contextualise the licences – other layer options should include Designated Sites (European and National), Watercourses and waterbodies, Townland boundaries, National Monuments, national soils data.
There are multiple functionality issues with the Viewer Search function. This is extremely poor and should be considered defective.
A particular licence can be located if the user knows the exact reference number. However, if the user does not know the licence reference the search function only permits for a search using an Address
There are no other criteria by which a search can be made – for example by size of application, type of application, by date, by status, etc.
As regards the Address search function, this is extremely poor too. A search for a common Townland name will show a list of Townland names followed by ‘(locality)’ but no actual locality in terms of Electoral Division or County. The user would be required to go through the list until hitting on the right one. The list is limited to 6 options which is completely unsatisfactory as there are common Townland names of which there are cases well in excess of this number.
There is no facility which gives suggestions or options for similar names as is the case with comparative sites (Historic Environment Viewer, Land Direct, GeoHive).
It should be remembered that many Townland names in Ireland have alternative spellings. With the FLV unless the user types exactly the name that is in the system there is no match.
There is no guidance for the user in using the search function.
The viewer has a built in restriction whereby multiple layers cannot be viewed at a scale greater than 2km.
Why the Viewer would have such a restriction designed in to the product needs to be explained. Comparative GIS based websites (e.g. GeoHive) have no such restriction. This restriction should be considered in the context of EIA screening which uses figures of 3km and 5km in terms of cumulative impact assessment and the Habitats Directive where a 15km buffer is used in relation to Natura 2000 sites.
When open, the layers tab obscures the Zoom tab so it is not possible to adjust the Zoom without first closing the layers tab. This is a small matter but illustrates the poor design of the product.
The licence details pop-up has no facility for expanding. Where there are multiple documents available for a project it is not possible to see them all at the same time.
There is no facility to download individual or all of the records for a particular application in a single click; each individual file needs to be opened and then downloaded separately. This is very inefficient.
There is no tab for Recent Decisions – i.e. application that are open for appeal
The Recent Applications tab shows a list of the most recent projects added to the Viewer.
As of the 18th April the most recent applications listed are for the 9th April. DAFM has published applications on the 12th, 14th and 16th April which are not included on this list. These more recent applications do not appear on the Viewer. The delay between formal notice being made and the records being available on the Viewer can represent a significant proportion of the consultation period. This is unacceptable.
The ‘About’ tab says that ‘New applications for forestry licences received from 11th January, 2021 will have documentation displayed in the FLV’. However, not all applications which are published for consultation after this date have documents appended. If the application was received prior to 11th January 2021 then documents will not be published despite the project being open for public consultation.
There is a two-tier system in operation whereby if the application which is open for public consultation was received prior to 11th January 2021 direct access to documents is not available. If the application was received after this date then all of the documentation will be made available through the Viewer.
Where documents are provided a full Site Details Report is not provided with applications; this is only provided when a decision has been made. An iNet preapproval submission document is provided but this does not contain all the details that would appear in Site Details Report.
The Address search option is seriously deficient. It appears to select six matches to any characters typed in to the input box irrespective of the number of addresses which may be a match. Where a name with multiple matches is detected, the six matches will indicate the name with ‘locality’ in brackets without any further indication of the general locality – for example County. The user then needs to step through them one by one in the hope of finding the address that they are looking for. There have been issues with layers not working properly. Recently the Forest Roads layer was showing only a fraction of projects. A search for a known project reference would show the application but it was hidden on the basic layer.
As a product the FLV is significantly inferior to other Government map-based products in terms of its scope and functionality – EPA, OPW Flood Maps, GeoHive, etc.
The FLV is a means of providing information to the public on forest licences. In the context of the EIA Directive and the Aarhus Convention it should be pointed out that the FS is operating different mechanisms in terms of the provision of information in this regard. Where applications have been made after 11th January 2021 all records are made available without charge through the FLV. For applications made prior to this the FS will charge the public (SI 417/2020) for the provision of records or alternatively will provide the records in response to a request under the AIE Regulations (usually without charge).
However, given the importance of timeframes, particular in respect of decisions which are subject to appeal, the AIE route is unsatisfactory as the Department invariably delays the provision of records until the appeal deadline is very close or has passed even where the AIE Request has specified a timeframe for the provision of the records within the appeal window.
There are thousands of applications still in the system where the public will not have guaranteed access to records within relevant timeframes (including documents which should already be legally made available (e.g. AA documents under Regulation 42 (18) of the Birds and Natural Habitats Directive)) without having to pay.
• The FLV should clearly detail the scope of the Viewer
• All active licences should be included on the Viewer
• Details of applications and decisions should be included on the Viewer on the same date that they are published on the consultation pages of DAFM’s website
• There should be linkage between the publication information and the FLV
• All applications and decisions that are subject to public consultation / appeal should have all documentation provided.
• The symbology of map layers should include status – pending, approved, open for consultation, open to appeal, extension, etc
• Addition spatial data layers should be included – Designated Sites (European & National), mapped European Annex I habitat, Water Courses and Waterbodies, Soil Types, Townland boundaries, Monuments, etc.
• The search facility should be extended to cover project status
• Downloading options for project documents needs to be improved
• The restriction on multiple layers at greater than 2km resolution should be removed
• Additional tabs should be provided for Recent Decisions, Licences under appeal and Extensions to previously issued licences.
• DAFM should provide an updated spreadsheet of the consolidated list of applications and decisions for each year.
• SI417/2020 should be revoked
AIE Request has been submitted to DAFM for details of the technical specification provided to the developers of this product and other associated information.
Plant slaughters/processing on average 750,000 chickens per week
The Western Brand facility currently discharges treated effluent, under an EPA licence, to a marsh area to the south east of the installation (Irish Grid Reference 145536 E, 279753 N).
In order to reduce risk to groundwater resources, the EPA has requested that the site cease discharging to groundwater and seek an alternative surface water discharge point.
Western Brand are proposing to construct a new treated effluent rising main pipeline from their existing WWTP discharge pump sump to a proposed outfall at the River Glore [Mayo] (also named Gweestion or Mannin River).
This decision gives an insight into why DAFM does not routinely include the AA & EIA Screening Reports on the FLV
“It also said that releasing the two reports may create a precedent that necessitates a large increase in documents to be added to the Department’s portal and that the resultant administrative burden would be very large.It added that these two documents are not routinely put on the Department’s information portal, the FLV.”