The law underpinning the Government’s large-scale bog rewetting project across midland and western counties is “totally inadequate” and must be urgently amended, a leading agricultural barrister has warned.

In fresh correspondence seen by this publication, the Department of Environment has confirmed that all works under the Peatlands Climate Action Scheme (PCAS), which aims to rewet 33,000ha of semi-state-owned bogs, is being carried out by Bord na Móna under the Turf Development Act of 1946.

Now Ciaran Dolan, Limerick-based barrister, agricultural consultant and former ICMSA general secretary, has raised serious questions about this legal arrangement, arguing that “it does not provide proper assurances and protection to adjacent landowners that may be adversely affected by the project”.

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He also claims the existing Act “quenches” common law rights regarding water and drainage.

He is urging Government to enact new legislation to provide “a clear and definite statutory basis” for the rehabilitation of peatlands to protect the property rights of adjoining landowners and others that may be impacted by the process.

Concern

It comes as several farmers neighbouring some 82 bogs identified for rewetting under the scheme remain deeply concerned about the potential long-term implications for the value and viability of their holdings.

Speaking to the Irish Farmers Journal, Dolan said: “When the Oireachtas enacted the Turf Development Act in 1946, it surely was not foreseen that it may be the legal basis for activities which are the direct opposite to what was envisaged in terms of turf production and the purpose of the act.

“Farmers and landowners are left with 77-year-old legislation intended for a totally different purpose to protect rights with regard to interference with their land, particularly drainage.

“Given the scale and permanency of the land-use change and time horizons involved, up to and beyond 50 years, the legal protection of adjoining landowners’ property rights should be based on a new statutory.

“33,000ha of Bord na Móna peatlands amounts to an area almost 40% of the size of Co Louth.

“And even if the Department and Bord na Móna are correct that they have the necessary statutory basis under the act, the provisions of the act are totally inadequate to deal with the legitimate rights and concerns of adjoining landowners and others that may be adversely affected by changes in the level of the water table and drainage in a locality due to rewetting,” Dolan insisted.

Common law

He said common law on watercourses provides that a person cannot interfere with the flow of water in a natural stream, or artificial watercourse that has been in existence for a long time.

“If a watercourse is of a permanent nature and constructed for lasting purposes, riparian rights may be acquired just as [those] attaching to a natural stream.

“However, the 1946 Act allows Bord na Móna to terminate or restrict water rights, or other rights over any land. These are far-reaching powers that could and will be used to carry out the rewetting project.

“Whether a landowner has established a right to obtain an outflow for the drainage of a land by the use of a watercourse put in place by Bord na Móna will depend on the specific circumstances of the site. But this is another legal issue that requires clarity to protect the landowner.”

Bord na Móna previously confirmed that, up to the end of 2022, rehabilitation works had been completed or were on-going on some 35 separate bogs as part of the PCAS – one of the largest peatlands climate action schemes in Europe.

The majority of these rehabilitation works have been conducted in counties Offaly (47%), Galway (24%), Longford (12%) and Roscommon (8%).