New legislation will come into force from early 2022 that will ensure Department officials accept the view of the independent panel at the second stage of an appeal against a DAERA decision.

The change was outlined in a public consultation completed in August 2021, which followed on from a statement made by Agriculture Minister Edwin Poots last November when he indicated that he would not be going against the view of the independent panel.

Under the current law, the final decision ultimately rests with the Department, and it can choose not to accept the view of the panel, and therefore stick to its original determination made at the first stage of the appeal. There are 114 cases since 2005 where the recommendation of the panel was not followed by DAERA.

However, Minister Poots has long believed this to be wrong, and since March 2021 he has been taking final decisions in those cases heard by an independent panel as an interim measure until new legislation is enacted. The tenure of the pool of people who currently sit on the independent panel will run out in January 2022.

In correspondence sent to the Stormont Agriculture committee, DAERA confirmed that there will be no Department officials on the independent panel, and a new pool of members “with relevant experience” will be recruited by next February.

A DAERA document published this week also clarifies that the Department will allow an applicant to provide new evidence to the independent panel to support their case. Under the current regime, new evidence can only be provided in exceptional circumstances.


However, while the independent panel will make final decisions, it comes with a caveat that the Department could decide not to accept the panel’s decision if it believes “an error of law has been made”.

In other words, DAERA will determine if the decision of the panel is within the regulations.

Ultimately all decisions taken as part of the DAERA appeals process are still subject to challenge in the High Court by way of a Judicial Review.

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