Since area based schemes were first introduced in 2005 the Department has had a two stage review of decisions process in place for applicants who believe that officials have made a wrong decision in their individual case.

It should be noted that there is no requirement in EU law for DAERA to have this in place – it is something that all parts of the UK have done as part of promoting good governance.

To be fair to the Department, the vast majority of farmers are treated fairly, and never have any need to seek a review. But in a small number of cases, there are examples where farmers feel very aggrieved by the length of time the review process takes, and ultimately the final decision made.

That is most acute when an independent panel at Stage 2 makes a recommendation in favour of the applicant, only for a senior DAERA official to decide to stick to their original decision.

Only option

At the end of any review process, the only option left is a judicial review of the case in the High Court. That could easily cost an individual farmer £100,000. But there is no guarantee of a win, and even if you do, no guarantee that all your costs will be paid. Most people walk away at this point.

However, there are now two cases where an applicant has successfully challenged by way of a judicial review after DAERA did not accept the view of the independent panel. The first, the UFU funded Ian Marshall case was over cross compliance penalties relating to a pollution incident.

Looking ahead it is very difficult to see how DAERA can justify any future decision to go against this independent panel

The second, the Barnwell Farms case highlighted over the last two weeks, related to an active farmer ruling.

The upshot of the Barnwell Farms case was a statement made by Minister Edwin Poots last Tuesday when he said that on his watch, the decision made by the panel will be final.

Looking ahead it is very difficult to see how DAERA can justify any future decision to go against this independent panel. Whether similar historic cases now come forward remains to be seen.

But hopefully this is now the last case of its type. The only winners in a judicial review are the legal profession. It isn’t farmers, DAERA or the UFU, and most certainly isn’t the public purse.

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