Friday 30 September 2016

Fencing in restricted areas a thorny issue for farmers

Theresa Murphy

Published 22/06/2016 | 02:30

There has been anger amongst sheep farmers over environmentalists objecting to their fencing.
There has been anger amongst sheep farmers over environmentalists objecting to their fencing.
Wesley Morrison from Louisburgh.

Sheep farmers are up in arms as their efforts to fence their land is blocked by environmentalists vowing to 'keep Ireland open'.

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Wesley Morrison (pictured below) from Louisburgh in west Mayo is one farmer who has found himself on the front line in this conflict. He inherited land from his granduncle in 2010 and proceeded to fence a 534m border in 2011.

As the land was part of a Special Area of Conservation (SAC), he first asked Mayo County Council and the National Parks and Wildlife Service (NPWS) whether he could proceed, and received the green light to go ahead.

During the job he took every precaution, including using mats for all machinery, and installing a stile for access, as requested by the council. On completion, a neighbouring farmer took a legal action, but this was settled in February 2013. However, later that year the same neighbour queried the status of the fence with the council, following which the council issued a 'section 5 declaration' confirming that the fence was exempt for planning permission.

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This was appealed by the neighbour to Bord Pleanala, who turned over the council's decision that planning permission was not required. At this point, Mr Morrison reapplied to the council for planning retention, and despite an assessment concluding that it wouldn't have any adverse effects on the environment, the council refused the application for planning permission.

Mr Morrison now had to appeal this decision to Bord Pleanala at which point An Taisce, Keep Ireland Open and the neighbouring landowner countered with objections.

The planning authority ruled against the young farmer and in February he received an enforcement notice from Mayo council threatening fines of up to €12m and imprisonment if convicted for failing to remove the fence.

Disheartened with his efforts to make a living from the home farm, Mr Morrison emigrated.

But the Louisburgh man is not a lone case. Seanie Boyle, Donegal INHFA (hill farmers) chairperson claimed there is a huge chunk of Donegal designated. "I know of a landowner that returned back home to farm a marginal hill the in Glenties area that he had bought and started improvement works on. He was told by the NPWS that he could not continue because it was an SAC, despite the fact that he wasn't told about the restrictions before he bought lands," said Mr Boyle.

Arthur Walsh. who farms in the Inagh valley in Galway, also has planning problems. "I got planning permission to fence the land but An Taisce have referred this matter to Bord Pleanala and now I'm waiting on this the outcome from this appeal. Without a fence, my animals can stray on to a busy road. On top of all this, the bills for this whole process will be over €5,000," he said.

An Taisce stated that "there are major issues of peat soil erosion in upland areas in western seaboard counties being exacerbated by fencing with a range of locations showing erosion of vegetation leading to peat soil erosion on one side. The issue needs to be resolved by integrated grazing management and measures to reverse soil erosion where it is occurring".

The INHFA responded that the preservation of the habitats is dependent on the lands being maintained through good agricultural and environmental practices, which will "inevitably" include fencing of the lands.

TAMS II simply reinforces the current situation, by requiring a letter of exemption or planning permission for all fencing on open and designated lands that are adjacent to the shoreline or uplands.

Roscommon Galway East TD Michael Fitzmaurice is calling for a review of Bord Pleanala's appointments, claiming that a bigger rural perspective is needed on the board.

He also called for the NPWS to urgently review the regulations which are preventing farmers from working their land.

This article is intended as a general guide and you should seek professional advice for individual circumstances.

Theresa Murphy is a barrister at law based in Galway

Outside designated areas, what fences  are exempt?

Any fence that is not a hoarding, sheet metal fence, or over 1.2m  high, or higher than the structure being replaced (up to 2m) is exempt from the requirement of planning permission.

If the action which you are proposing is considered 'a notifiable action', you must make an application to the Department of Agriculture. In NHAs, SACs and SPAs, certain activities can only be carried out with the permission of the Minister. These are called Notifiable Actions and vary depending on the type of habitat. There are 39 notifiable actions including changing the type of farming activity on lands or erecting a fence where there is no pre-existing fence.

More recent regulations now state that all developments requiring an EIA will also need planning permission. An EIA attempts to predict the environmental impact of a proposed development. This is necessary for every application for planning permission for development on designated lands and is estimated to cost up to €4,000 for a 500m fence.

The costs will be higher if the issue goes to Bord Pleanala, without any guarantee of success. If their decision goes against a farmer, the final option is to appeal to the High Court. Landowners should be aware that there is a short window within which legal proceedings must be started and it can be expensive.

Falling foul of planning regulations can have serious consequences including fines and up to two years' imprisonment.

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