Seán Kyne (Fine Gael)
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I thank the Cathaoirleach's office for choosing this Commencement matter. I welcome the Minister of State, Deputy Madigan, to the Chamber although I must express my disappointment that there are three Ministers in the Department of Agriculture, Food and the Marine, none of whom are here this morning.

Keelderry commonage in east Galway has eight shareholders. An inspection in 2010 found 0% eligibility for farm payments. That is 0% in terms of forage. No control report for the inspection took place. One shareholder was notified of the results of both inspections, and following his request that the findings be reviewed, the eligible area was increased to 10%. The Agriculture Appeals Office upheld this decision. No other shareholder was notified of the inspection findings nor afforded the opportunity to appeal. As I said, no control report for either inspection was issued.

In response to a parliamentary question in 2021, the Minister, Deputy McConalogue, stated "every on-the-spot check for land eligibility and area based scheme requirements should be the subject of a control report as detailed in Article 41 of Commission Regulation (EU) No 809/2014". A further question was put to the European Parliament on 25 October 2020. The response stated "In addition, the beneficiary shall be given the opportunity to sign the report and add observations, even electronically, before the competent authority draws its conclusions for payment processing." The response went on to state "The absence of control report could indicate a breach of EU legislation."

Roll on to 2012, when a second shareholder had an inspection on his farm. The commonage was also inspected by different Department personnel on the same day. Again, no control report was issued for either inspection. The commonage eligibility was raised to approximately 12% at this inspection. He appealed the findings to the agricultural appeals officer, who said he could not accept the Department figure and found in favour of the shareholder in August 2015. The Department ignored the decision and appealed the findings to the director of the appeals board. In February and March 2013, other shareholders were notified of the findings of this inspection and were told that if they did not accept these figures, they would be penalised going forward. One shareholder was not notified of the findings at the time. The director of appeals upheld the decision of the appeals officer in September 2016 and the Department ignored this decision. Two shareholders issued proceedings for a judicial review in early 2017 and it was heard in 2018. A senior inspector gave a false sworn affidavit, which was the subject of the judicial review. The letter that was sent to other shareholders in 2013 outlining the findings of the 2012 inspection was never sent to one of the shareholders. During the appeal hearing, it was pointed out that there was an inconsistent approach taken at the Department with regard to other regional commonages in the Kildare area. After this appeal was made, the Department's staff attempted to reduce the eligibility of its surrounding commonages. It is clear that there was an action taken to justify the incorrect actions previously employed with regard to the Keelderry commonage. These changes to eligibility were withdraw by the Department when faced by the threat of a judicial review by the shareholders of these commonages, but it still persisted with the Keelderry findings.

In October 2013, a senior inspector prepared a report after inspecting the Keelderry commonage and without any shareholder being notified of an inspection or being afforded the opportunity to sign a control report. This report was used by the independent appeals board in January 2014 when carrying out an inspection ordered by the Minister for Agriculture, Food and the Marine. This report only became available to the shareholders in April 2016 following a court order. It had been withdrawn under previous freedom of information, FOI, requests.

What we have seen is a catalogue of issues, delays and procrastination with regard to the inspection of the Keelderry Commonage, and the shareholders are the people who were impacted. In March and July 2017, a Department official from another county inspected the-----

Victor Boyhan (Independent)
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When the Senator is ready.

Seán Kyne (Fine Gael)
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Just one moment. An official inspected the commonage and gave a 96% eligibility. Both gentlemen, two shareholders, were successful with their judicial reviews. The eligibility found by this inspector from outside of County Galway was the area granted and both received their outstanding payments. This is the crux of the issue. As a precedent was set, two of the shareholders were paid. It was assumed that the other shareholders would then automatically be paid-----

Victor Boyhan (Independent)
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I thank the Senator. I will have to wrap up on time.

Seán Kyne (Fine Gael)
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-----but they were not.

Victor Boyhan (Independent)
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I thank the Senator. The Minister has four minutes to respond.

Josepha Madigan (Dublin Rathdown, Fine Gael)
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I thank the Senator for his comprehensive delineation of what happened with regard to this particular issue. Keelderry commonage is an area of land owned and claimed by nine applicants under the single payments scheme, basic payment scheme and other area-based schemes which form part of the overall Common Agricultural Policy, CAP, schemes. There are four separate land parcels which were claimed as rough grazing and permanent grassland.

In 2010, one of the nine applicants was selected for inspection. His application included shares in the Keelderry commonage. The inspection findings indicated a reduction in the number of eligible hectares available to all those claiming Keelderry commonage, resulting in a reduced payment under the single payment scheme.

In 2012, as the Senator mentioned, another applicant under the basic payment scheme who also happened to be a shareholder in Keelderry commonage was selected for inspection. This inspection included all lands as declared by the applicant, including the share in Keelderry commonage. In brief, it was found that the applicant, in this instance, was not conducting any agricultural activity on the commonage. Following an appeal to the Agriculture Appeals Office, this decision was overturned and the applicant’s share of the eligible area of the commonage was re-instated. After the issue was raised in the Oireachtas and at the European Parliament petitions committee, in January 2014, the independent Agriculture Appeals Office carried out a review of the decision of the Department regarding the eligibility of the land. This review included a site inspection. All shareholders were notified of this visit and were given a copy of the report of that review in April 2014. The Agriculture Appeals Office confirmed that the land was mainly ineligible and upheld the results of the Department’s inspection of 2011.

A number of the shareholders instigated court proceedings against the Department in relation to the payments under the various schemes, essentially contesting the outcome of the Keelderry commonage inspections.All of these court cases have either been settled or withdrawn by the applicants. The legal basis and the definition of an eligible hectare changed in 2015 as the scheme changed from the single payment scheme to the basic payment scheme.

Following legal advice, the Department conducted an inspection of the lands in mid to late 2017. The inspection found that more than 90% of the area was eligible under the basic payment scheme rules. The result was applied to all shareholder applications from 2015 onwards. None of the original shareholders sought a review of the inspection results. Subsequently, the basic payment scheme applications of the Keelderry claimants from 2015 onwards were recalculated, considering these findings, and any moneys outstanding were reimbursed.

The Department is satisfied, from my understanding, that there are no further moneys owed to the applicants under those circumstances. The Senator can appreciate that I am bringing this response to him on behalf of the Department of Agriculture, Food and the Marine. If he has any further contributions to make I will, of course, bring them back to the Minister.

Seán Kyne (Fine Gael)
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I appreciate that the Minister of State is not a line Minister in the Department. The correspondence from the Department states that the inspection found that the whole of the 90% of the area was eligible under the revised basic payment scheme rules and the results were applied to all shareholder applications from 2015 onwards.

Unfortunately, this only came about because of the judicial review taken by two of the shareholders. As I said, as a precedent was set it was expected that all other shareholders of Keelderry commonage would receive their outstanding money. However, the cycle started all over again. Money was withheld and there were no responses to queries. The other shareholders are owed a significant amount of money. I absolutely refute the claim that the Department is satisfied that no moneys are owed to applicants.

There is considerable money owed to applicants and shareholders of the Keelderry commonage. This was brought to the attention of the Minister, Deputy McConalogue, who gave an initial response to one of the shareholders and did not subsequently respond to a comprehensive report on the moneys that were being withheld. I ask the Minister to go back to the Department and Minister and inform them that the shareholders of Keelderry are deserving of their payments. They are lawfully due these payments and it is not good enough that just because two shareholders had the means to take a judicial review and were successful that the other shareholders are being denied their due entitlements. This goes back to 2010. It is a long-running saga. It had to be settled in the courts and the Department now needs to pay all of the remaining shareholders.

Josepha Madigan (Dublin Rathdown, Fine Gael)
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I appreciate what the Senator has said. Obviously, I am bound by what the Department of Agriculture, Food and the Marine has instructed me to communicate to him today. That is quite clear. The Department is satisfied that there are no further moneys due to the applicants. I have heard that the Senator is of the view that the shareholders are entitled to moneys and the reasons for that. I will certainly bring that back to the Minister and Department.