Mr O’Connor is a substantial farmer who farms at Nenagh Co Tipperary. He made a written application for payment under the 2010 EU Single Farm Payment Scheme and Disadvantaged Area Scheme in May 2010.
The total area declared by Mr O’Connor for financial assistance under the Scheme was 220 hectares. He was subject to an unannounced inspection on portion of the lands in August and September 2010 followed by a cross compliance control test on his cattle herd.
In September 2010 he received a Notice of Non Compliance from the Department which stated that the commonage he had included in his application may be rejected. On the SPS payments a formal decision was issued to Mr O’Connor in November 2010 which found inadequate deductions were made for some small parcels and also rejected the commonage area in its entirety on the basis there was no farming activity on the land prior to the two inspections or previous as the vegetation was overgrown. It was further alleged that the six animals on the commonage had only been put there a few days prior to the inspection.
Mr O’Connor’s solicitor Aisling Meehan sought a review of the Department’s decisions and stated the inspections were carried out contrary to the Farmers’ Charter and Action Plan 09-11 and Mr O’Connor faced the possibility of losing SFP and DAS payments for 2010 totalling approximately €147,000.
The outcome of this review was the imposition of a substantial additional penalty for allegedly artificially enlarging the holding by including lands for the sole purpose of drawing down entitlements. No opportunity was given to Mr O’Connor or Meehan to address the Department on the imposition of this extra administrative fine.
Mr O’Connor sought various reviews and appeals under the Agriculture Appeals Act but was unsuccessful and issued High Court Judicial Review proceedings. In June of this year Mr Justice White found in favour of the bulk of Mr O’Connor’s case and found:
That the inspection leading to the SPS penalty was procedurally flawed.When the additional penalties were imposed on Mr O’Connor he had been denied proper procedures and was denied the opportunity to comment or make submissions.The Department Officials contravened the Commission Regulations as Mr O’Connor was not given an opportunity to sign any report on the unannounced inspections.Mr O’Connor was denied an opportunity to respond to the inspector’s finding on the exclusion of the Commonage and imposing an automatic penalty because the application exceeded the 20% rule.Mr Justice White did not hold back in his criticism of the Department for its failure to comply with its own terms and conditions for farm inspections and also the Farmer’s Charter.
He noted that while these are not binding the Department’s Officials actions had very little regard for fair procedures as the guidelines in the Terms and Conditions and the Farmer’s Charter were ignored completely. In addition the lack of respect for fair procedures was extended to the review when another penalty was imposed without Mr O’Connor being given an opportunity to make submissions. The Court also found the Appeals Officer failed to deal with the legal submissions made by Mr O’Connor’s legal team notwithstanding that he had powers to do so under the Agriculture Appeals Act and should have specifically addressed the legal issues in his decision. However, it is important to note the Court reiterated that if there is sufficient evidence before the Appeal Officer to decide the illegibility of land then the Courts will not seek to review this technical evidence.
The outcome of the case was that the Court held Mr O’Connor was entitled to his payments save for the sums claimed on the Commonage lands and the Department could not impose the extra administrative fine.
In light of this decision how can farmers best protect their interests during the course of a notified or unannounced inspection?
Read up on the Department’s own Terms and Conditions for Inspections and the Farmers Charter.The Department must provide you with a report on the day and you must be given an opportunity to sign it.Ask for the written reports following the unannounced inspections and reply with your observations.be aware that you have an opportunity to postpone elements of the inspection for 48 hours or for 14 days as appropriate.Department Officials must show proper identification.On review the Department must allow you an opportunity to make submissions regarding any proposed penalties that might be imposed before final decision is made.Given the potential sums involved if BPS is lost and additional penalties imposed and the number of legal issues that can arise, consult your solicitor if the Department notify you of potential penalties. You also have a further opportunity to amend any mistakes on lands being submitted for BPS by availing of the new online facility operated by the Department. This requires the farmer to make the application online and provides a pre-check facility which may reduce incidents of ineligible land and subsequent penalties.
Farmers who have had penalties imposed in recent times should consider the points raised in this judgement and possibly review their case and see if the imposition of these penalties can now be challenged.
Read more
'Flawed' inspection saves farmer €100,000 penalty in High Court
Mr O’Connor is a substantial farmer who farms at Nenagh Co Tipperary. He made a written application for payment under the 2010 EU Single Farm Payment Scheme and Disadvantaged Area Scheme in May 2010.
The total area declared by Mr O’Connor for financial assistance under the Scheme was 220 hectares. He was subject to an unannounced inspection on portion of the lands in August and September 2010 followed by a cross compliance control test on his cattle herd.
In September 2010 he received a Notice of Non Compliance from the Department which stated that the commonage he had included in his application may be rejected. On the SPS payments a formal decision was issued to Mr O’Connor in November 2010 which found inadequate deductions were made for some small parcels and also rejected the commonage area in its entirety on the basis there was no farming activity on the land prior to the two inspections or previous as the vegetation was overgrown. It was further alleged that the six animals on the commonage had only been put there a few days prior to the inspection.
Mr O’Connor’s solicitor Aisling Meehan sought a review of the Department’s decisions and stated the inspections were carried out contrary to the Farmers’ Charter and Action Plan 09-11 and Mr O’Connor faced the possibility of losing SFP and DAS payments for 2010 totalling approximately €147,000.
The outcome of this review was the imposition of a substantial additional penalty for allegedly artificially enlarging the holding by including lands for the sole purpose of drawing down entitlements. No opportunity was given to Mr O’Connor or Meehan to address the Department on the imposition of this extra administrative fine.
Mr O’Connor sought various reviews and appeals under the Agriculture Appeals Act but was unsuccessful and issued High Court Judicial Review proceedings. In June of this year Mr Justice White found in favour of the bulk of Mr O’Connor’s case and found:
That the inspection leading to the SPS penalty was procedurally flawed.When the additional penalties were imposed on Mr O’Connor he had been denied proper procedures and was denied the opportunity to comment or make submissions.The Department Officials contravened the Commission Regulations as Mr O’Connor was not given an opportunity to sign any report on the unannounced inspections.Mr O’Connor was denied an opportunity to respond to the inspector’s finding on the exclusion of the Commonage and imposing an automatic penalty because the application exceeded the 20% rule.Mr Justice White did not hold back in his criticism of the Department for its failure to comply with its own terms and conditions for farm inspections and also the Farmer’s Charter.
He noted that while these are not binding the Department’s Officials actions had very little regard for fair procedures as the guidelines in the Terms and Conditions and the Farmer’s Charter were ignored completely. In addition the lack of respect for fair procedures was extended to the review when another penalty was imposed without Mr O’Connor being given an opportunity to make submissions. The Court also found the Appeals Officer failed to deal with the legal submissions made by Mr O’Connor’s legal team notwithstanding that he had powers to do so under the Agriculture Appeals Act and should have specifically addressed the legal issues in his decision. However, it is important to note the Court reiterated that if there is sufficient evidence before the Appeal Officer to decide the illegibility of land then the Courts will not seek to review this technical evidence.
The outcome of the case was that the Court held Mr O’Connor was entitled to his payments save for the sums claimed on the Commonage lands and the Department could not impose the extra administrative fine.
In light of this decision how can farmers best protect their interests during the course of a notified or unannounced inspection?
Read up on the Department’s own Terms and Conditions for Inspections and the Farmers Charter.The Department must provide you with a report on the day and you must be given an opportunity to sign it.Ask for the written reports following the unannounced inspections and reply with your observations.be aware that you have an opportunity to postpone elements of the inspection for 48 hours or for 14 days as appropriate.Department Officials must show proper identification.On review the Department must allow you an opportunity to make submissions regarding any proposed penalties that might be imposed before final decision is made.Given the potential sums involved if BPS is lost and additional penalties imposed and the number of legal issues that can arise, consult your solicitor if the Department notify you of potential penalties. You also have a further opportunity to amend any mistakes on lands being submitted for BPS by availing of the new online facility operated by the Department. This requires the farmer to make the application online and provides a pre-check facility which may reduce incidents of ineligible land and subsequent penalties.
Farmers who have had penalties imposed in recent times should consider the points raised in this judgement and possibly review their case and see if the imposition of these penalties can now be challenged.
Read more
'Flawed' inspection saves farmer €100,000 penalty in High Court
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