Mr. Eddie Punch:

I will try to answer two questions in one go. Deputy Ó Cuív asked whether a farmer should have certainty about his application. The point that has been made here is that the Department is now in a position to say "this is your map at your application time - we deem X, Y and Z to be ineligible and the rest of it to be eligible".

The problem is that in 2013, farmers applied in good faith but were given no indication by the Department of their land parcels that were eligible or ineligible. Subsequently, in the autumn of 2013, different maps appeared, with new aerial photography, showing red lines. Suddenly it was possible for the Department to point out the parcels of land that were not eligible.

In response to the point made by Deputy Fitzmaurice, at one of the first meetings of the farmers charter, I raised this very issue that given the Department has the Bing technology in place and has considered every parcel of land in Ireland, surely it is reasonable that whatever designation the farmer is given by the Department at the time of application must stand for the rest of that year. It gets more complicated, however. The officials were appalled by the vista that farmers could have certainty. They said that land designation could change and that they could not allow a situation to arise where farmers would have certainty. I do not know if they fear an auditor from Brussels flying in during the month of September or October. I do not know what is at issue, but the proposal that Deputy Fitzmaurice put is the proposal we tried to have established in the farmers charter. The officials would not hear of it. It seems, therefore, that the farmers charter is not an adequate vehicle to solve this problem. Of course, the farmers charter will play second fiddle to the regulations.

I suppose that poses the question of whether we will have the same difficulty with a working group. If a working group is to be part of the solution, we need to have a Minister with teeth involved. That is an issue. It is stated clearly in the delegated Acts that the onus is on the member state to establish the fine detail. In the delegated Act it states where grass and other herbaceous material make up more than 50% of the area, they shall be deemed to be predominant. What does that mean? I hope it means that if over 50% of the land parcel is herbaceous material, the parcel is eligible. However, I heard officials suggest by way of a contrary view that if one does not meet the 50% criteria, the entire parcel of land is ineligible. This is a matter on which we must have clarity. Obviously as people will know, many of the LIPIS penalties are applied on a purely subjective assessment of what is eligible and one saw people receiving letters with maps with areas of ground marked with red lines that were deemed not to be wall to wall cereal saying that it was 100%, 85% or some other percentage ineligible. It was a guesstimate by the person driving the computer in Portlaoise. When the inspectors come out to look at the land parcel, they walk the ground and make an estimate. That is the extent of how scientific it is. An official from Teagasc might decide the eligible land is 40% of the parcel as there is some grass around the bushes and the trees. The official from the Department might take a different view and think it is only 20% eligible. The point is that it is all subjective. In any event, the real question is whether the system is fair when that level of subjectivity is being used to apply penalties on land that for many years was grand. If it was grand for many years, how come that it is suddenly not grand?

In defending the potential for retrospective penalties, I have heard officials say it did not get "un-grand" overnight, to use the vernacular.

In other words, if the eye in the sky photos from 2013 showed scrub, rock, bushes and so forth, they must have been there for a long time; ergowe will go back and apply retrospective penalties. On the question of whether we can have certainty that a decision made in May as to whether land is eligible will stick for the year, they contradict themselves when the say that land can change all the time and people cannot be allowed to have any certainty. Suddenly, scrub might emerge from nowhere in a few months. That is a thoroughly unsatisfactory situation.

The whole LPIS review process has been thoroughly unjust and we must find a solution to that. That is an ongoing battle. Committee members asked if we have brought this issue up with the Minister. We had a meeting with him about this 12 months ago and we told him about all of these problems. The answer he gave at that time was that it could not be discussed until we knew the final outcome of the penalty process from Brussels, that is, the €180 million fine hanging over the country. We met Commissioner Hogan in December to discuss this and he said that a decision was imminent. We thought it would be announced before or just after Christmas but we are now in April and still there is no clarity on that matter. I do not want to be negative and while a working group is important and should be established, we need to see a commitment at the highest political level to resolving the situation. Until we see that commitment, everything else pales. Hiding behind the €180 million fine is not acceptable. Indeed, it is unacceptable that the €180 million fine is still lingering. Why can that not be decided on? At the end of the day, whether the €180 million fine is reduced to €30 million is only a detail because the substantive issue still has to be solved.

Can we define what is eligible or ineligible? In the so-called ineligible areas, a circle can be drawn around an area as small as 0.01 hectares. My reading of the delegated Act is that there is no reason at all why a clump of trees in the corner of a field should lead to any deduction. However, that is a philosophical question to which I do not have the answer. In our view, if we have a bio-diverse common agricultural policy, a clump of trees in the corner or middle of a field or a small bit of protruding rock should not cause farmers to be penalised. The solution for the farmer is to bull doze it but that is surely not the objective of the CAP. Why should small clumps of rock, whin or scrub lead to penalties, albeit small percentage penalties, when at the same time cereal farmers, in order to be eligible for greening now have to have an ecological focus area of 5%? It is clear that cattle and sheep farmers are being treated differently to cereal farmers. Cereal farmers get 100% of their payment because they have wall to wall cereals. They are now being told to find an ecological focus area of 5%, while a 5% ecological focus area results in a penalty for cattle or sheep farmers. That cannot be right. All of these issues must be dealt with.

I do not think, even with the best will in the world, that this will be solved by the end of May. This must be part of an ongoing process of review and where farmers can benefit from reviews, they must be given such benefits. We need political will to do that.