Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We are dealing with issues relating to burnt land. I welcome, from the Department of Agriculture, Food and the Marine, Mr. Paul Dillon, assistant secretary, Mr. Paul McKiernan, principal officer and Mr. Noel Dinneny, assistant principal officer. They were here with us in January. We asked them to come back to brief the committee on further developments with the issue of burnt land. We thank them for the update on this.

Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

I ask Mr. Dillon for his opening statement.

Mr. Paul Dillon:

I welcome the opportunity to address the committee on this matter. We attended a meeting of the joint committee in private session on 30 January, at which point we had a useful discussion on the issue and how it relates to some of the key financial supports operated by the Department of Agriculture, Food and the Marine. We also offered to come back to brief committee members in public session on any further developments on the issue of the burning of land, and I will outline today some of the main issues in that regard. As I outlined to members of the committee in January, the range of area-based schemes available to farmers, such as the basic payment scheme, BPS, greening and the areas of natural constraint, ANC, scheme, are vital supports which help to underpin the continued development of a competitive and sustainable agrifood sector in Ireland. These payments also provide a significant financial boost for individual farmers and the wider rural economy.

To ensure that these payments continue to issue in an efficient and effective manner, it is essential that the Department continues to implement a range of administrative verification checks to underpin the payment of €1.6 billion annually under these schemes. It is in this context that the issue of the burning of land is so important. The Department will continue to ensure that the verification checks required by EU regulations are fully in place and that we can continue to build on our strong record of delivering payments to farmers under these schemes.

When I updated the joint committee in January, I outlined the position regarding the ongoing investigation of cases of burnt land outside the permitted timeframes in 2017. At that stage, a number of cases had been identified and processed and the appeals process was under way. I am happy now to be able to update the committee on where this process now stands. In general terms, where the area on a given holding determined to have been burned exceeds 3% of the eligible area declared on that holding, an administrative penalty of 1.5 times the area burned is applied. In reviewing the appeals received to date, the Department has decided that, where an applicant has proven to the satisfaction of the Department that she or he was not in any way involved in the burning of the affected lands, this administrative penalty only is waived. The land remains ineligible, however, and thus no payment issues in respect of this land. This is the position which I outlined at our previous meeting. This is due to the fact that where land has been burned, it is not in a state suitable for agricultural activity such as grazing or cultivation and cannot then attract a payment under the basic payment scheme.

To date, 100 farmers have submitted appeals to the Department regarding burnt land. Sixty-nine of those appeals have been internally reviewed and accepted. In these cases, the administrative penalties have been reviewed but the burnt land in question is not payable for 2017. The farmers have been written to, notifying them of the outcome. The administrative penalty reimbursements due have issued to 51 of the 69 cases to date, with €67,321 being reimbursed. The remainder will be reimbursed as appropriate in the near future. The remaining 31 appeals are under review by the Department. Some farmers have been requested to submit additional information. Should any applicants wish to pursue these decisions further, they can lodge an appeal with the independent agriculture appeals office. It is also worth noting that, all other things being equal, the burnt land in question should be eligible for inclusion in 2018 BPS applications.

At our previous meeting, I also updated the committee on the communication initiatives the Department had put in place in 2017 regarding this issue. Given the importance of this issue and how it impacts on key scheme payments for farmers, I am in agreement with the committee’s view at the time that every effort should be made to ensure that farmers are aware of the rules and regulations in this area and, most important, of the impact that the burning of land outside of the permitted timeframes can have on their payments. As part of the annual cycle of applications for BPS, all farmers receive an application pack early in the year. This pack includes the terms and conditions for the BPS which set out, among other things, the main elements that farmers need to be aware of relating to land eligibility. As we discussed in January, the burning of land can impact on the eligibility of land for payments under schemes such as the BPS and thus this important document outlines the relevant rules in this regard. These terms and conditions are also available to all stakeholders on the Department’s website.

I am conscious that the terms and conditions of the BPS contain a large volume of important information for farmers. With this in mind, the Minister, Deputy Creed, issued a specific press release in March of this year explicitly to draw farmers' and advisers' attention to the closed season during which it is illegal to burn land. This communication set out very clearly that the illegal burning of land in the period between 1 March and 31 August could have a number of implications for farmers. It set out that farmers who burn land after 1 March should be aware that they risk prosecution; such land is not eligible for payment under the BPS; the inclusion of illegally burned land in the 2018 BPS application may also result in reduced payments and penalties in other area-based schemes such as the areas of natural constraint scheme; the illegal burning of land can also render the land of neighbours ineligible for payment; and the identification of lands that were burned during the closed season may result in such land being inspected by the Department. The purpose of this communication was to be as clear as possible about the rules surrounding the burning of land and to alert farmers to the impact it may have on their payments and so on. The press release was timed to coincide with the closed period for burning while also allowing farmers plenty of time to ensure that they reflected accurately their eligible land in their BPS applications.

The Minister also urged farmers and the wider public to be mindful of the damage that burning can cause and to take appropriate care. To reinforce this message and to ensure that the communication was received and understood by as many farmers as possible, the Department also issued a text message to farmers in March. The Department regularly uses text messages as a means of getting succinct messages directly to farmers on key issues. In this case, the text issued to remind farmers of the closed season and to draw their attention to the possible impact of burning on their payments. In addition we have also held discussions with farmer representative bodies to ensure further a clarity of message around this important issue.

On the current position, the Department keeps the situation in relation to the burning of land under review. While there have been some isolated reports of burning recently, I am glad to report that we have not witnessed any evidence of burning on the scale witnessed at this stage last year. I reiterate that farmers and the wider public should remain vigilant in this regard. This will be especially important as weather conditions change in the coming weeks. The Department will continue to investigate matters related to the illegal burning of land as they arise. I am confident, however, that the rules around burning and the impact on payments have been clearly communicated to all the major stakeholders. We also continue to prioritise the processing of scheme payments as a matter of the utmost priority in the Department to ensure that those vital financial supports are paid to farmers in the most efficient and effective manner possible. My colleagues and I are happy to discuss the matter in more detail and we will do our best to answer any queries.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Mr. Dillon. I apologise to the witnesses for keeping them waiting for so long. The first part of the meeting dragged on for longer than expected so I apologise for that. I call Senator Daly.

Paul Daly (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Some of my colleagues are probably moreau faitwith this situation as it is happening in their area more than my own. I know we discussed it in January. I am still grappling and coming to terms with the fact that, on appeal, the administrative penalty was dropped but the witnesses are still adamant that the land area in question does not qualify for any payment for the entire year. We are all aware that much of this burning happened through no fault of the farmer. It was not malicious. It was not that they were burning out of season. It was maliciously started in many cases and they had no control over it. If land is burned in April, that land will be grazing again in June. It seems very harsh, especially where farmers are victims of a crime where somebody else started the fire. They are losing the payment on that area of land for the entire year when it would return to grass for the greater part of the year that is left.

This is a major loss to farmers, and as I say, the elephant in the room is the fact that this was not something malicious that they did. It was totally out of their control. The fire was started by somebody else.

Martin Kenny (Sligo-Leitrim, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

As Senator Paul Daly said there, the big issue is that farmers feel very aggrieved. The land was burned - they did not burn it, and yet they are the ones we penalise. That is how they see it. While I acknowledge that the administrative penalty has been taken away, I object to the notion that because the land was burned it is not suitable for agricultural activity and they cannot get a payment. The very tiny proportion of people we are talking about feel highly aggrieved that this is happening to them and that they are the ones being punished for it. I just do not see how this land can be taken out of the picture when it is not the farmers' fault at all. If a farmer had something to do with it, fair enough, but when it is not their fault it is just so unfair. It flies in the face of everything we are trying to do to encourage farmers and help them survive. In most cases here, we are talking about farmers in the most marginal of land, that is, mountainous land. It is wrong that we are in a situation where we cannot pay out to farmers in this situation. There has to be some means of re-examining this to come up with some solution. There has to be a solution in this situation. Where the farmer is not responsible, he or she should not have to face this penalty.

Eamon Scanlon (Sligo-Leitrim, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

My concern is with 30 farmers on Killery Mountain in Sligo and Leitrim. It is a part of the 50 km Sligo Walk. Some 5 km of the walk goes across that mountain. It is a very successful development, supported by the Sligo Leader programme with the permission of the landowners and the users of the mountain, who allow people to traverse the designated walkway. There was a caminothere in May 2018, during which 1,000 people registered and walked across that stretch of the mountain. Perhaps as many as 50 or 60 people walk this route every day, before, during and after May. There are 30 farmers there. In fairness to the people concerned, the Minister said that where there is burning people will be fined. The question, however, is who started this fire. Farmers are very much aware of the rules and regulations around payments and how they are drawn down. They will not do anything to jeopardise that, because they cannot afford to. They need every cent that they get to survive, especially in that particular area, where the land is very poor. These people are now technically being accused of starting a fire, which they did not. It could have been any one of the 60 people a day who walk that walk, who could have thrown a cigarette butt or a piece of glass. We must remember that the weather was very dry in May of last year. It was the best weather we had for the whole year, and a lot of people were using this walk. It is very unfair that these farmers are presumed guilty straight away and money is deducted from them. It is very wrong that this should happen. There is no proof of who started the fire, quite honestly, and I genuinely do not believe that any of those farmers did it. They know the rules and they have to live within them. None of them would jeopardise payments to anybody else. I feel very strongly about this. The decision here is very wrong, particularly when nobody knows.

I can understand this on closed and fenced mountain land, where there is not pedestrian traffic of this kind. In this case, the support of the local farmers allows a facility which is very beneficial to the community from a tourism point of view. It brought 1,000 people on one weekend for that particular event, and every hotel and bed in that region was full. Every guest house and every hotel bed was taken. That is the type of activity that takes place across that route, and I think it is terribly wrong that farmers are found guilty of starting a fire with no proof. Anybody could have started that fire and these people are being penalised in the wrong.

Danny Healy-Rae (Kerry, Independent)
Link to this: Individually | In context | Oireachtas source

I too am representing farmers in Kerry that have been penalised severely because their commonage was burned. I see that the Minister appealed to farmers and the wider public. How can the farmers who are being penalised be responsible for the wider public? As I understand the commonages that I am dealing with, the farmers did not set the fire. I am very sure about that. One man who has been penalised has a severe handicap. He cannot see. He has received no payment at all yet. He did not get any for Christmas, and he has not got any now. To me, that is repulsive. It is very wrong. In another instance, the man who has been penalised had just come through cancer and several trips to Cork on a bus for radium treatment. He did not set the fire. In fact, his brother rang the fire brigade and did everything possible to quench the fire himself, as did other farmers, who put their own lives in danger. I know they did, because I have been involved in trying to control fires at other times. That is the worst place you could be for your health. Afterwards, one can get pneumonia. Anything is possible after trying to stop a fire. It is very wrong.

One of these mountains is a location where people walk. The public goes to the top of these mountains and enjoys this wonderful amenity. I refer to the Paps Mountains in Rathmore. Some of these farmers have received some money but they have been told they will get no more and their green low-carbon agri-environment scheme, GLAS, payments are affected. This is not good for tourism or it will not be if this is to be the way. It seems that farmers are going to be penalised because of the wider public.

I do not know how the fire started but in one of the commonages it definitely came in from outside. The farmers saw the fire coming onto the land but could not stop it. For the farmers to be penalised for the fires that commonage is very high-handed action and I very much feel for them. It is totally wrong. It is like putting someone who did not commit a robbery in jail because he was related or had some connection to the person who did. That is not the way to do business.

I am asking the departmental officials to go back and look at these cases again. They know about the cases from Kerry as we have been making representations on their behalf. They should ensure that this never happens again. The farmers called the fire brigade and did what they could themselves to stop the fire. They did not start it. I am asking the Department to look at what it is doing before it does this to people who had to go without their payments for their Christmas dinner. To hell with ye, the Department seems to say; manage on your own. It will not give the payments to them. That is not fair. I raised this with the Minister the Dáil, as did Deputy Scanlon and others.

It is the wrong way to go about business just because the Green Party or some other group here says we should not burn any lands at all. It is wrong to take this high-handed action against good people. We should remember that these payments are merely compensation for failing to get adequate prices for the stock they are rearing. They are not Christmas gifts. It is not Santa Claus over in Europe sending over these moneys. Farmers are entitled to these payments because they are not being properly paid for the produce they produce. The Department needs to get its methods right and deviate from this action of penalising people 100% where the level of commonage is greater than the rest of the enclosed land they have. It leaves them with nothing. I am glad to have had this opportunity to raise my concerns on behalf of people on commonages and in inland parts of Kerry who have been penalised so heavily.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I thank the officials for attending today to address the issue and giving us an opportunity to ask a few questions. Reading what has been said, the first obvious question is as follows. The mountain was burned in April last year. By mid-summer it would have well grown back. In fact, within three or four weeks, it would have been getting quite green. In some cases, it will have grown back a great deal greener than it was before. The Department would pay on turlough land even if one got a very wet year with a lot of flooding when it might be very late in the year before the turlough dried out completely. My understanding is that the Department pays on those turloughs even in a wet year. I take it the reason for the disqualification has nothing to do with the fact that the land was burned. Perhaps the witnesses could clarify that. My understanding is that the disqualification was due to the fact that it was burned illegally. There is a difference. If it were a simple matter that it was burned and was not green for a very short time in the year, it would still be likely to be green in that year for as long as, oftentimes, many turloughs are.

That brings me to the second issue, which is that people were penalised because someone carried out an illegal act. If someone broke into one's house and did damage, one would not expect the State to double the damage by penalising one for something over which one had no control. In most of these cases, there is no evidence whatsoever that any of the farmers had any connection with the burning. In fact, as the officials opposite know, most of them were able to produce significant evidence from the only people who can decide whether to take a prosecution. All the evidence was that these people were not suspected of having had any hand, act or part in any illegality. What we have been doing, therefore, is penalising people for something they can prove they had nothing to do with.

I move to the next issue. On a lot of these commonages, one might have 300 ha with 250 legal owners. Of those, only 50 or 60 may have stock on the hill. The reality, however, is that their legal share in the commonage is very small. Therefore, the payments to a lot of these people are very small and they do not have huge resources to pay planners for appeals. Many of these farmers are in the older age bracket, but they have a legal right to continue to farm. The level of stress involved in getting affidavits from solicitors and obtaining independent evidence from law enforcement agencies to show they are not suspected of wrongdoing can be enormous and totally disproportionate to any alleged issue. The witnesses are saying that even if someone proves he or she had no connection with the fire, they will still penalise that person. The penalty is imposed not because the land could not be grazed but because someone did something illegal on it.

I was very surprised at the Department. It presumed everyone was guilty. In the case of anyone whose land was burned and who claimed for it, the Department not only imposed a deduction of the amount of land that was burned, it also imposed a penalty of 1.5 times the land involved. That is what happened last autumn according to what is before us here. Is that 1.5 times penalty irrespective of the percentage of the land one holds? In other words, if the land is more than 20% of one's total landholding, does the administrative penalty increase or is one disqualified from the scheme on the basis that one had an over-claim of over 20%? The Department might say that if 20% of a farm burned, it would be a hell of a lot of land but that is not so. If I have 100 ha of land, 20% of that is 20 ha and that is a lot of land to have burned as an individual. However, if I have 5 ha of land, as with some of the cases which were sent to the Department, and 1 ha of my share is burned, I have a 20% over-declaration.

I note to the Chairman that, coming from Kildare, one might laugh at 5 ha farmers. However, there are a lot of much smaller farmers in Poland. There are huge numbers of very small farms, as well as some enormous farms in Poland. As such, we are not an outlier in having very small farms. In reality, most people who farm in Kildare were born there. Most people who farm in Connemara were born there. They did not choose to be born there. It was an accident of birth. They will have other ways to make a bit of their living which would be strange in Kildare, namely, some seaweed harvesting and fishing. They make out fairly well in their own way by adding up all the bits of income along with a job. Each part of that income adds to the total household income. If that farmer only had the job, he or she might be on the subsistence side but a bit of farming, seaweed harvesting and fishing added in changes things. The other big industry in our neck of the woods is teaching Irish to those who do not have it. When one adds it all up and looks at the houses people have, one realises that these are the most creative people on earth. Given the hand they were given to play in terms of land, they have made the best of things. We should also recognise, however, that this €2,000 or €3,000 is the icing on the cake that makes the difference between pure subsistence and some comfort.

To summarise, is the reason for the deduction because it was an illegal act or because the land was burned and the forage was unavailable? How does the Department answer the turlough analogy in circumstances where the effects of the burning lasted only a short time? Why did the Department penalise people first when it was obvious that none of these people had been questioned or summonsed for an illegal act and the presumption of innocence therefore applied to them? Did the administrative fine increase where the over-declaration was above 20%? Did it increase even further if it was over 50%, which could happen in respect of a very small hectarage of hillside and did in a lot of these cases?

We want to exploit all of our resources in the west of Ireland. What we might lack in agricultural land, we certainly have in recreation land.

Farmers allow it to be accessed for free. There are very few things in this world free anymore. If I went to Leitir Móir, Máimín, Leitir Mealláin, Creag O'Duibh and Glean Eidhneach and headed up the mountain, most people would welcome me with open arms because it is an important source of wealth generation in the area, even though individual farmers do not gain from it. The likelihood is that it was not farmers who started the fires. I do not know who did, but it could have been young people or they could have started spontaneously or lit by strangers. The obvious danger that would stop a really super and growing industry - the recreation industry into which we have all put so much time - is that farmers would react by saying they would not risk their payments, as someone could go up the hill and might be careless in using a match or having a picnic and leaving a bottle behind which would be enough to light up the hill. We have to look at the big picture and say if that were to happen, the very successful work which has been ongoing since 2003 to rebuild the hill walking industry would be set at naught again. I hope the Department will reverse its view on this issue and tell the European Union that it has to cop on and provide for a reasonable application of the rules. We have an Irish Commissioner for agriculture who understands conditions in this country and I am sure it is not beyond him to ensure the rules will be applied in a realistic way, not in a way that has a lot of negative effects on communities, the economy and individuals.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I return to Mr. Dillon. There has been a theme across most contributions, while a number of specific questions have been asked.

Mr. Paul Dillon:

I will address as many of the questions as I can and ask my colleagues to address some of them.

Deputy Éamon Ó Cuív asked if it was the case that because the land had been burned illegally it was deemed to be ineligible. The answer is yes. One condition mentioned in the terms and conditions of the scheme - it is also mentioned in the eligibility booklet - is that if it is burned outside the burning season, it will be deemed to be ineligible. The farmer in question was making a declaration after the burning had happened. The declaration was made on or around 15 May.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is correct, but who included it in the booklet?

Mr. Paul Dillon:

The Department did.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Why?

Mr. Paul Dillon:

It is included in both EU and national rules and regulations. There is also national legislation dealing with the matter. We are required to protect the environment and the landscape for all of the reasons to which the Deputy referred. I do not know if hill walkers would want to come to a place if it was burned every year.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The wording was along the lines of that if a farmer burned his or her land or caused it to be burned illegally, he or she should suffer the penalty. However, the Department is interpreting the wording to mean that if someone comes along from anywhere and burns my land, I am the one who will suffer.

Mr. Paul Dillon:

I highlight the distinction between land that is and is not eligible. When we decide on the penalty that is to be applied, there is the standard application of the eligibility rules. The Deputy mentioned other European farmers, small farmers and so on. The rule is applied in the very same way to all farmers, big or small. The penalty is calculated on the basis that the land is deemed to be ineligible. It is deemed to be ineligible because at the time of the application the farmer declared land that had been burned. He or she had been warned not to declare land if it had been burned. When we carry out an investigation, we find which land has been burned and which has not. Every application is looked at individually. There are other reasons also. For instance, if a farmer has more land than he or she needs to cover his or her entitlements, that will affect the amount of money paid, for example, where he or she has more than enough land to claim if he or she is receiving an area of natural constraint, ANC, payment. Every case is looked at individually to calculate the penalties to be applied. My colleague will explain how the reductions are applied. The Deputy asked if it was the case that over a certain amount the penalties went up to 100%. Mr. Dinneny will explain how they are calculated.

Mr. Noel Dinneny:

The penalties vary, depending on the overall percentage of the area claimed for. If it is less than 3%, for instance, no penalty is applied on top of the deduction. If it is above 3%, the figure is 1.5. If it is above 3% and one loses a hectare, the penalty would be a further 1.5.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is only if the percentage is between 3% and 20% of the total farm. If one has less than 5 ha, one will lose it for the whole year. Is that correct?

Mr. Noel Dinneny:

No, one will not. There is provision for an area between 3% and 10% of the total farm. We introduced what was called the yellow card. In that instance, where the percentage is between 3% and 10%, the penalty is reduced from 1.5 to 0.75. It is a variation. However, generally the figure is 1.5. That is the standard penalty in an over-claim; it does not apply only to the burning of land, it could also relate to scrub or various other reasons.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

If 20% of my land is burned-----

Mr. Noel Dinneny:

Then the penalty will be 30%.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

If the figure was 50%?

Mr. Noel Dinneny:

We would be beyond 100%. If 50 of 90 ha are burned, at a figure of 1.5 on top, it would exceed the total amount of land.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The problem is that it is skewed. If I have 5 ha, 3% is 0.15 ha. My neighbour could have the corner of a field of that size.

Mr. Noel Dinneny:

That issue has been raised before. It could be argued that they were disproportionate for those with a lesser amount of land, but that is an issue broader than burning.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

From the outside, it seems that the bigger issue is penalising somebody for something for which he or she is not responsible. He or she may not have been responsible for starting the fire. There is no proof as to who started it, but the person who owns the land and is trying to qualify for a payment is deemed to be ineligible because of an act which may have been committed by somebody else. How do we get around that issue?

Mr. Paul Dillon:

I will ask my colleague Mr. McKiernan to speak about the burden of proof.

Mr. Paul McKiernan:

I will speak briefly as I think we sent this material to the committee after the last meeting. Deputy Charlie McConalogue had asked for the burden of proof to be outlined. The relevant articles are Articles 77 and 97 of EU Regulation No. 1306/2013. Article 97 relates to cross-compliance, while Article 77 refers to eligibility checks. We took a lot of advice on this issue from our legal services. They gave us very comprehensive advice. Members will also be aware that we are subject to continuous audit, particularly by the Commission. It can impose very harsh and draconian penalties on Ireland if it deems that it has been remiss. The regulation was examined by our legal services which gave us the following advice.

There was scope for an administrative penalty where the burden of proof was lesser. We would have had those discussions if we could have reasonably believed the applicant was not responsible for it and then we could have waived the administrative penalty. We are bound by the regulations, however, and as the Deputy said there are domestic regulations also.

Eamon Scanlon (Sligo-Leitrim, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Surely proof must come into the equation given that people's livelihood is being affected, with no evidence whatsoever as far as I can see, in particular in the case I mentioned because of the use that is being made of the mountain in question due to the local community and farmers allowing people to walk in the area. That makes a difference from a tourism point of view. Perhaps those landowners should consider their position and close off the land given how farmers are being treated. There is no proof whatsoever of anybody starting a fire. I accept the point that has been made that issues arise and penalties are in place, but in all honesty farmers generally obey the rules because they know they have to do so. Up to 60 people a day are walking across commonage on a mountain. This is supported by the Sligo Leader programme through the provision of timber walkways across bogs and other facilities, on which a lot of money was spent, and because of farmers agreeing to allow it to happen. Anybody could have thrown away a cigarette butt or a bottle. We had the best weather at that time in 2017. As an indication of how popular walking in the area is, 1,000 people registered to walk on that camino over the May bank holiday weekend in 2017. In fairness to the farmers, they are doing everything they can to support their local area, but because of what has happened they are being deprived of a substantial amount of money without there being any proof whatsoever of any of them having started a fire. In all honesty, what has happened is not fair or right.

Éamon Ó Cuív (Galway West, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

The situation is extraordinary in that we spent years negotiating for access to the hills in Sligo. Deputy Scanlon knows about it. The main area that got burnt in Connemara for which people were penalised is a very small commonage with an enormous number of shareholders. The Department said the fines should have been deducted from the payment. I do not believe that should have happened because the shareholders had nothing to do with burning it. This has very little to do with the fact that the land was not available for a month or two and more to do with the fact that somebody carried out an illegal activity.

Let us suppose the shareholders had decided to reduce the commonage and follow the Department's instruction. If the total payments were approximately €1,000, how much would it have cost for one year to pay somebody to walk the hill and measure it so that it was known what deduction to make? Let us take the average planner in Galway or Athenry coming out to Connemara to measure it all up carefully. It would probably have cost 30% of the total payments the farmers would have got. That is outrageous and unfair.

I do not believe there was not a legal way out of this. When I was in the Department of Agriculture, Food and the Marine, I always admired that when something needed to be done, a clause, a way and a means would always be found. The departmental officials who are present are very fair-minded people. They tell us that it is the law. I have heard about EU auditors forever and, as the man says, they do not frighten me. Unless there is big cheating, I presume even a European auditor would not fine Ireland for paying farmers for something they did not do. I presume the Commissioner would not allow that kind of bad publicity to fall on his head.

If this situation cannot be corrected retrospectively, I am sure the Department can get the Commissioner to change his mind now and say that where land was burnt, it was not caused by the landowner and there is no suspicion on him or her, he or she gets paid. Is it possible to get the Commissioner to change that rule going forward so that this crazy anomaly is addressed? I am not the expert on this but if it has to be changed in Europe, let us tell the Commissioner, Mr. Hogan, who understands this scene better than most because he had responsibility for hillwalking before he hillwalked to Brussels. He understands its importance to the economy, because that is where the real problem will arise.

Paul Daly (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Deputy Ó Cuív has touched on the issue I want to raise. Did the Department put on the EU jersey as opposed to putting on the green jersey? Mr. McKiernan said he got legal advice. Was any approach made to Europe? We got extensions before for spreading slurry under exceptional circumstances. Was such a request made given the circumstances that the farmers had not burnt the land themselves and that the fires were started maliciously by outsiders? Was the question even asked of Europe or did the Department just put on the EU jersey instead of putting on the green one?

Martin Kenny (Sligo-Leitrim, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

The nub of the issue is that the farmer is not the guilty party. Everyone accepts that, yet the farmer is being punished. There is a clear injustice in that which everyone accepts. Is the interpretation of the regulation the problem? Is it being interpreted very strictly? We have all come across situations where EU regulations are interpreted in Ireland differently from how they are interpreted, for example, in France, Italy or Spain. The slight variation may make the difference. If it is a question of interpretation we should be able to work out a solution. Everyone accepts the farmer is not the guilty party, but it seems there is a fear that if the land is burnt and the farmer is let away with it, next year or the year after a lot more land will be burnt and farmers will say they did not do it. Is there a concern that if the door is left slightly ajar, there will be more fires? Honestly, I do not think there will be. I do not think there are any farmers who want to burn land outside of the legal provision to do so in limited circumstances.

I do not understand why there is such a very strict interpretation of this rule. From talking to people in Brussels, it is my experience that they understand there must be exceptions to the rules. They live in the real world. They understand that there will be times when things happen, and in such situations it is more than appropriate to look after the interests of the farmer who is doing a public good by allowing people onto the mountain. Most of the payments are payments for a public good rather than for productive farming because in general they are not productive areas for farming.

The interpretation of the rule is one point. Is it being interpreted too strictly? If the officials feel that is the only way they can interpret it, let us see what we need to do to change it. If that is the conclusion they come to, we need to seek to make the change straight away. I am inclined to take the view that a solution must be found in the meantime for those farmers who have been denied their money in respect of this situation. In fairness to them, they are doing a public good and that is the same in most places, and they are not the guilty party.

There is an injustice in it. Anyone who comes from Brussels who looks at this would accept that point. I do not believe there is much distance to be moved other than to get people to accept that justice has to overcome rules. Rules can be set aside when there is an issue of common justice and this is simply an issue of common justice.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Mr. Dillon, this is the question for you and your colleagues. Are you interpreting the rules over-strenuously compared to Brussels?

Mr. Paul Dillon:

We were careful to get detailed advice on this particular eligibility issue before we took this course of action. The advice we got was strong in terms of how we should interpret the regulations. They are EU regulations on declaring land eligibility. We got strong advice to the effect that this was the proper way to interpret it. We explained this already but maybe we need to explain it again. The distinction is in the difference in the burden of proof for eligibility and other types of penalties. We were satisfied with the advice we got before we took this course of action.

Deputies raised the question of whether it could be changed at EU level. In theory, of course it can be changed. We are in the middle of the consultation process on how the new Common Agricultural Policy is to be implemented and what level of obligation we are going to place on farmers. All of these things are up for discussion under the new CAP.

Senator Daly asked a specific question. Did we specifically go to the Commission and ask before we did this? No, we did not, but we got advice on the interpretation of the rules and how we should apply them. As I have said, the interpretation we got was clear. The burden of proof for eligibility rules is far higher than for other rules. That was why we acted the way we did. Mr. McKiernan may wish to say a little more.

Eamon Scanlon (Sligo-Leitrim, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

Does that not leave us in a fine state, where innocent people have to be fined under this?

Mr. Paul McKiernan:

I do not believe the rules say that.

Eamon Scanlon (Sligo-Leitrim, Fianna Fail)
Link to this: Individually | In context | Oireachtas source

That is what is happening, whether we like it or not.

Mr. Paul McKiernan:

Let us go back to the press release from May of last year. The Department set it out clearly in that press release. We appealed to the applicant to amend the application if it included ineligible land that was burnt outside the legal period. Few farmers took up that option. We met farming organisations, including those with commonage interests, and explained all of this in detail before the deadline. If an applicant continues to put in what is ineligible land, it will be subject to the interpretation of the regulation and how the penalties are calculated.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I am thinking out loud, so correct me if I am off completely. Would one way of getting around this be if we had a later application date for commonage land? For example, the point was made that some of this land would be greened up again by the time June comes, or July at the latest. The application date is 15 May. If that date was extended for two months, for example, for commonage areas, would that be a possible way of getting around the issue?

Mr. Paul Dillon:

You have to remember that the legal burning season ends on 1 March. If a farmer wishes to carry out controlled burning legally, he or she must do it before 1 March. Almost all farmers will make their basic payment scheme application after 1 March. The applicant is required to state on the application whether the land is eligible or not eligible. The terms and conditions of the scheme clearly state that if land is burned after 1 March it is not eligible. The Department expects the farmer to know when making an application whether the land was burned. That is why the legal advice we have is so strong in terms of eligibility and the burden of proof. It has to do with declaration of eligible land.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

We have a vote in the Dáil at the moment. I am watching the screen. How do we get around this issue? Is there a simple way around it? Obviously there is no simple way around it. I presume if there was, it would have been found before now.

Mr. Paul Dillon:

Yes. Every case is looked at individually in terms of how the penalty is applied. Then, as we explained, in the event we are satisfied that the applicant was not involved, we remove the administrative penalty. Then, it is simply a question of subtracting the burned land from the overall application. There is no top-up penalty or administrative penalty. That is the first point.

The second point is that all these people, if they are still dissatisfied, have the right of appeal to the agriculture appeals office and the Ombudsman.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Have many cases gone to the appeals office?

Mr. Paul Dillon:

Not that we are aware of.

Mr. Noel Dinneny:

We have a number of queries in.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

It is a slow process.

Mr. Noel Dinneny:

We have to supply the documentation to the appeals office.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

The appeals process is slow. Is that correct?

Mr. Paul Dillon:

It can be, yes.

Mr. Noel Dinneny:

Essentially, it is the same issue that people are appealing on.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

Absolutely. Can you sum up, Mr. Dillon? Obviously, there are dates to be taken on board.

Mr. Paul Dillon:

It is important to remember that the applicant is making a declaration on or around 15 May in respect of the land he or she is buying on for payment and is declaring that the land is eligible. The warning is clear: if the land has been burned after 1 March, outside the burning season, the applicant should not declare it as eligible.

The second point is that we always look at all these cases individually in terms of calculating the amounts of money involved. There will be a new CAP and that will determine how eligibility and the rules will be applied. That is something we can factor into the discussions and consultation with regard to how this is to be treated in future. However, our advice is strongly in line with what we have now. If the person has declared land and the person should have known that it was burned, then the burden of proof rests with that person. It is a totally different way of approaching it.

Pat Deering (Carlow-Kilkenny, Fine Gael)
Link to this: Individually | In context | Oireachtas source

There are no other questions. I imagine we will hear more about this in due course, although I hope not for the remainder of this year because there are consequences. There is no further business. I am sorry for rushing things on.