09/10/2014 Senator Daly Speaks on the Forestry Bill 2013

Senator Daly: I am sure the Minister of State is aware that there has been only one instance of a licence not being granted. If, however, somebody is going to commit his or her land to forestry for life, he or she will want to have some certainty in respect of the matter. As I understand it, the grounds on which a licence may not be granted relate to the protection of the environment; the ensuring of good forestry practice; the preservation of amenities; public health or safety; protection from flooding; and preservation of water quality. These are pretty much all-encompassing in the context of forestry. If a licence is not granted on the basis of the reasons to which I refer, I understand that compensation will not be paid. Perhaps the Minister of State will clarify the position. In light of the fact that there has only been one occasion on which a licence has not been granted – the Minister of State may be aware of other instances – I do not understand why this section is being included in order to cover something which is unlikely to happen. I am of the opinion that the inclusion of the section will create doubt among members of the farming community, particularly if it is the case that someone might object to an area of forestry being cut down because he or she believes it to be an amenity. If a felling licence is refused in such circumstances, the land of the farmer involved will be covered in trees which he may have been hoping to use to fund his pension or develop his farm. He will be stuck with an area of forestry which he cannot fell and in respect of which he cannot maximise the return from his investment. The farmer in question will end up losing money and will not be compensated.

Minister Tom Hayes: On Committee Stage in the Dáil there was lengthy discussion in respect of the need for the Bill to provide for payment of compensation in circumstances where an application for a felling licence is refused. In light of the concerns expressed, I sought the advice of the Office of the Attorney General. The advice I received was to the effect that there would be a risk of a finding that the provisions of the Bill permitting refusals of licences would be unconstitutional if they failed to provide for compensation. Section 32, for which I received Government approval, gives effect to this legal advice to provide for compensation where it is legally necessary to do so. While the outright refusal of an application for an approval or a licence is infrequent, there are, and will continue to be, instances where an approval or a licence may be refused by the Minister, usually for reasons of environmental protection.

It is intended that compensation will be provided through regulations to be made by the Minister for Agriculture, Food and the Marine and the consent of the Minister for Public Expenditure and Reform will be required in this regard. The proposed amendment limits the circumstances in which compensation will be payable. In the case of refusal of a felling licence or a forest road licence, compensation will be limited to the depreciation in the value of the trees that is attributable to the deterioration in the quality of the timber as a consequence of the refusal. This is similar to provisions included in Northern Ireland and UK legislation. Restrictions on the payment of compensation are also listed, including where a licence is refused for environmental reasons. Licences will not be refused without good reason and my Department will endeavour to work with landowners in order to explore all possible options before considering outright refusal. I hope this clarifies the position

Senator Daly: I thank the Minister of State. He referred to regulations outlining the grounds on which compensation will either be paid or not paid. However, the legislation specifically refers to the grounds on which an official may refuse an application for a licence. As stated earlier, these are the protection of the environment; the ensuring of good forestry practice – which is open to interpretation; the preservation of amenities – An Taisce could decide that an area of forestry is an amenity and should be preserved and could be successful in lobbying accordingly; public health or safety – this has often been used as an excuse for many organisations to do very little; protection from flooding; and preservation of water quality. In the context of the latter and as the Minister of State is aware, soil is often disturbed when trees are being cut down and this can have an effect on watercourses and an impact on water quality. In that context, we are all aware of the ongoing debate with regard to water basins. Every forestry is located close to a stream or some other watercourse, so there is going to be an impact.

The Minister of State indicated that the Attorney General has stated that compensation could be paid. I may be wrong but section 32(6) appears to run contrary to that and indicates that compensation will not be paid if a licence is refused on the basis of the grounds listed. I cannot identify the circumstances in which compensation might be paid because there is little scope for an application to be refused on grounds other than those contained in the subsection. If a licence is refused and even though the Attorney General has indicated otherwise, it would appear that the farmer involved will not be able to seek compensation. I am just trying to save people from being obliged to make trips to the High Court. If section 32(6) could be removed and replaced with a provision which states that the matter will be dealt with by means of regulation, that would be something. When the regulations are drafted, it will not be possible to cater for circumstances where compensation should be paid because the matter will already have been dealt with in primary legislation

Minister Tom Hayes: The amendment presented on Report Stage in the Dáil was drafted, reviewed and approved by the Office of the Attorney General and had regard to an examination of existing legislation on the Statute Book and commentary in the High Court in respect of a recent case. We are proceeding on the basis of the legal advice we received.

Senator Daly: The legal advice appears to indicate that compensation might be payable. However, the grounds set out in the Bill are quite specific and pretty much all-encompassing and seem to indicate that the Government will not pay compensation in respect of the refusal of felling licences. I understand that a licence has only ever been refused on one occasion. Perhaps the Minister of State’s officials will clarify the position and indicate whether we are legislating in respect of something that would be very limited in the context of actual application.

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