Hot topic - illegal burning on land could send you to prison
Farmers could be hit hard and in their pocket for illegal and out of season burning on their land
Published 11/05/2016 | 02:30
In recent days we've seen the fire brigade units and water tankers sent in to battle a serious gorse fire blazing on Three Rock Mountain in the Dublin Mountains, while smoke from fires on Mount Leinster could be seen for miles around.
It comes on the back of stark warnings from the Agriculture Department to farmers and other landowners that the burning of gorse or vegetation on land is illegal at certain times of the year.
Farmers can be hit hard in the pocket as vegetation on land which is found to have been burned outside of the legal season can be considered ineligible for payment under Department schemes, including Basic Payment Scheme, GLAS and other area based schemes.
Although controversial, restrictions on hedge-cutting and burning came into effect on March 1 and will last until August 31 2016.
In the proposed Heritage Bill 2016, the periods for hedge-cutting and burning of hill vegetation were to be extended by one month on a trial basis to make land management more practical. However, these provisions were never passed.
The law governing the area is set out in Section 40 of the Wildlife Act 1976 which restricts the burning or destruction of vegetation growing on uncultivated land or in hedges or ditches during the nesting and breeding season for birds and wildlife from March 1 to August 31.
There are a number of obvious risks with burning, for example damage to homes, farm lands and setting fire to nearby valuable plantations of forestry. Potentially it can also endanger lives, with the added pressure on our already stretched emergency services make burning an activity to be approached with extreme caution.
The Health and Safety Authority (HSA) warn that planned burning of gorse or vegetation should only be carried out by appropriate personnel with training, knowledge and experience in managing safe and controlled operations.
They require that burning only be carried out in accordance with a written burning plan, that takes into account the Prescribed Burning Code of Practice.
It calls for annual burning to take place within the context of a long-term rotational burning plan developed by the landowner for the area in question.
In the case of gorse or whins, they are flammable all year round and burn quickly with intense heat. Older crops of gorse with high bushes are notoriously difficult to control in wildfire situations and it may not always be possible to safely treat these using fire.
In addition to the safety issues, there are also a number of legal implications of burning which should be kept in mind in relation to forestry.
If you don't stick to the rules it could prove very costly as you could be held responsible for the loss of the neighbouring plantation.
For example, under Section 39 of the Wildlife Act, 1976, if you intend burning within one mile of a forest which you do not own, you must notify your local Garda Station and the forest owner, who has the right to object by counter-notice, at least seven days in advance, in writing.
A forestry plantation owner that fears burning will be an issue in their area should make their fears known to the local gardai in advance of the burning season.
If your plantation is damaged or destroyed, you should report this loss as soon as possible to the gardai and the Forest Service.
It is also important to seek insurance cover if you are concerned about a risk to your forestry.
Also, within designated areas of special areas of conservation and protection, and national heritage areas, the National Parks and Wildlife Service must be notified and 'Notifiable Action Authorisation' obtained.
There are severe penalties in place for those who cause damage to habitats as a result of burning, which extend to large fines and potential imprisonment.
The Air Pollution Act sets out certain restrictions around smoke and pollution which would affect those in proximity of the fires.
The amount of burning will be directly related to the level of pollution and so this should be kept in mind to avoid any repercussions under this legislation.
The issue of insurance is very relevant for farmers and land owners who engage in controlled burning. You should ensure that you have suitable and adequate insurance cover for the task and discuss your intentions with your insurance provider.
Employer's Liability insurance should be checked to see that it covers prescribed burning activity, especially if employees or sub-contractors are likely to be involved. Illegal burning activity may invalidate insurance and leave the landowner or operatives open to personal liability claims.
As well as insurance, all employers have a duty of care towards employees and their health, safety and welfare while in a place of work.
The Safety, Health and Welfare at Work Act 2005 and Regulations 2007, place a heavy emphasis on hazard/risk assessment as a core element of health and safety management in places of work.
Heavy penalties exist where employers are found to have breached this duty of care through action or negligence, and employees are harmed or injured as a consequence.
In the cases of fires started deliberately, where they cannot be associated with controlled burning such an action would be described as arson.
The rigors of criminal law would apply including potentially lengthy imprisonment and severe financial penalties.
Although many consider controlled burning to be an art as well as a science, planning and compliance with all of the necessary formalities could help prevent a potentially disastrous outcome as well as protecting the residents and land owners in proximity.
Theresa Murphy is a barrister based in Ardrahan, Co Galway