Allihies, County Cork, Ireland http://friendsoftheirishenvironment.net/

Circulation Copy

Ireland’s designation of Special Protection Areas (SPAs) for Hen harriers (Circus cyaneus) under Council Directive 79/409/EEC on the conservation of wild birds

Final Caroline Lewis, Andrew Jackson, Tony Lowes 26 February, 2009

1 Index

Introduction

1. Background 1.1. The European Legal Context 1.2. The Political Context 1.3. The anti-Natura 2000 Campaign

2. SPA Site Selection Process 2.1. Exclusion of three sites 2.2. Limiting geographical range 2.3. Reasons for exclusions

3. Habitat Protection 3.1. Habitat of the Hen harrier 3.2. Forestry quotas in the ‘Forestry Management Protocol’ 3.3. Conversion of rough grassland 3.4. Exclusion of improved grassland 3.5. Open Space

4. Species Action Plans

5. Conclusion

Appendix I: Maps Appendix II: Management Protocol Appendix III: Economic reasons for exclusion of three ocSPAs Appendix IV: Species Action Plans and Resources Allocated to Nature Conservation: Northern Ireland/the UK compared to the Republic of Ireland Appendix V: Wind farms within pSPA in County Cork: breach of Article 4(4) of the Birds Directive Appendix VI: Charts Showing Potential Habitat loss through proposed afforestation within SPAs References: References are given as endnotes, many of which contain hyperlinks to the referenced material. Double left click on reference number in document to take you to the endnote. To return double left click on the number in the endnote.

2 Introduction

To date, Ireland has failed to designate Special Protection Areas (SPAs) for the Hen harrier (Circus cyaneus) in breach of its obligations under Article 4(1) of the Birds Directive [79/409/EEC].

A desktop study was undertaken by Friends of the Irish Environment of the potential long term impact of Ireland’s prospective SPA designations on breeding Hen harrier populations. The study raised significant concerns in relation to the long-term survival of the Hen harrier in the six proposed SPAs (pSPAs) and three excluded original candidate SPAs (ocSPAs).

The main risks are due to the exclusion of nationally important areas containing >1% of the all-Ireland population and permitted land use changes from rough grassland to both forestry and improved grassland. The nine ocSPAs are already considered to be at carrying capacity due to extensive forestry, improvement of rough grassland and developments e.g. wind farms and quarries. Current fiscal measures were found to significantly favour afforestation over other land uses, particularly in marginal areas in both the pSPAs and excluded ocSPAs.

The decision not to designate three of the original nine ocSPAs and the decision to exclude improved grassland from the pSPAs represented a loss of 110,000 ha. from the 279,0001 ha. originally identified on scientific grounds for designation. Such areas were excluded from SPA designation for political and economic reasons, a clear breach of EC law (C-44/95; C-3/96).

Similarly, in respect of the six pSPAs and the three excluded ocSPAs (areas which “have not been classified as SPAs but should have been so classified” (C-374/98, at paragraph 47), the Irish government’s failure to take steps to avoid pollution or deterioration of habitats or significant disturbances affecting the Hen harrier in these areas through land use change represents a breach of the first sentence of Article 4(4) of the Birds Directive, which applies to such areas (C-374/98). Specific breaches are highlighted throughout this paper and in Appendix V.

Back to Index

3 1. Background

1.1 The European Legal Context Under the Birds Directive Ireland has a requirement to protect the Hen harrier. This directive recognises that:

‘habitat loss and degradation are the most serious threats to the conservation of wild birds.’2

There is great emphasis on the protection of habitats for endangered and migratory species (listed in Annex I), in particular through the establishment of a coherent network of Special Protection Areas (SPAs). Article 4(1) of the Directive requires Ireland to classify “the most suitable territories in number and size” as SPAs for Annex I species, including the Hen harrier. Under the terms of the Birds Directive, this classification process was due to have been completed by 1981.3

Three decisions of the European Court of Justice (ECJ) provide the legal backdrop to this review.

First is the Lappel Bank case (C-44/95), in which the UK government, supported by the French government, argued that in selecting SPAs and their boundaries, Member States should be allowed to take economic considerations into account (paragraphs 20 and 21 of the ECJ’s judgment). The ECJ disagreed, holding that, in selecting SPAs and defining their boundaries, Member States are not authorised to take account of:

(a) the economic requirements mentioned in Article 2 of the Birds Directive (paragraph 27 of the ECJ’s judgment); (b) economic requirements as constituting a general interest superior to that represented by the ecological objective of that directive (paragraph 31); (c) economic requirements which may constitute imperative reasons of overriding public interest of the kind referred to in Article 6(4) of the Habitats Directive (paragraph 42).

Selecting SPAs and their boundaries, the ECJ ruled, must be done only on the basis of the ornithological criteria set out in Article 4(1) and (2) of the Birds Directive (paragraph 26).4

4

Second, a decision against the Netherlands (C-3/96) in 1998 established that Member States’ margin of discretion in selecting SPAs, “does not concern the appropriateness of classifying as [SPAs] the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species in question” (paragraph 61 of the ECJ’s decision).

The third important case for present purposes is the ECJ’s decision in case C-374/98. The case related to a site in France - the Basses Corbières - which the Commission contended should have been classified as an SPA. The opening and working of limestone quarries on the site, the Commission argued, had resulted in deterioration in breach of Article 6 of the Habitats Directive. However, the ECJ reasoned differently, as follows: on a literal interpretation of Article 7 of the Habitats Directive, the Court held, only areas classified as SPAs fall under Article 6(2) to (4) of the Habitats Directive. Areas which have not been classified as SPAs but which should have been so classified, the Court held, continue to fall under the (old) stricter regime governed by the first sentence of Article 4(4) of the Birds Directive.5

Back to Index

1.2 The Political Context In addition to the above EC legal context, it is worthwhile putting Ireland’s implementation of the Habitats and Birds Directives in their national political context. We draw here on a recent article6 by Professor Brigid Laffan of University College Dublin and Dr Jane O’Mahony of the University of Kent.

They pointed out that:

“Traditionally, nature conservation issues in Ireland had been heavily politicized with farmers and landowners resisting previous moves by the state to curb any practice or development on the land that might damage biodiversity. This had been the case with attempts to set up a system of designation of Areas of Scientific Interest and their successors, National Heritage Areas, from the early 1980s onwards (see Tovey, 1993, p. 321; Tovey, 1994, 2001; Tovey & Share, 2003 for full accounts). This shift in the

5 policy paradigm occurred in a constitutional and legal environment that accorded considerable protection to landowners under the principle of natural justice underlined in an Irish Supreme Court Judgement in 1994 (Tovey, 1994). Those responsible for the transposition and application of the national implementing measures [for the Habitats Directive] were acutely aware of the Supreme Court judgement, which upheld the right of landowners to be granted the opportunity to object to designation. In this sense, the policy implications of the Habitats Directive had profound legal consequences and was extremely neuralgic for those seen to be most affected, namely farmers. In such circumstances, implementation of the directive was always going to be politically and legally tricky because of the strong cultural sensitivity about property rights in Ireland (Flynn, 2007, p. 113; Taylor, 2001, p. 84; Tovey, 1994). The potential for conflict between landowners (in particular farmers) and regulators was high.” [Laffan and O’Mahony, at p.182]

They continue:

“The minister responsible for the transposition phase [of the Habitats Directive] left office in June 1997 and was replaced by a minister, Síle de Valera, whose constituency was in a part of Ireland very much affected by site designation. The junior minister responsible for rural policy was her cousin, Eamon Ó Cuiv, who was also from the western half of the country. Both were grandchildren of one of the 1916 leaders, Eamon de Valera, who founded Fianna Fáil, the largest and most successful political party in Ireland. By temperament and political location, neither of these office holders was likely to risk alienating their constituencies in order to comply with a European law. They would invest considerable political energy in mediating between Brussels and the farmers and there is no doubt that their sympathies were entirely with the landowners.

Speaking in Boston in 2000, Síle de Valera (then a junior minister for Arts, Heritage, Gaeltacht and the Islands) told her listeners that

“we have found that directives and regulations agreed in Brussels can often seriously impinge on our identity, culture and traditions. Brussels, Birmingham, the Burren; the same European Union, different worlds.”7

6 Ó Cuiv, who was in a position of power in relation to the Habitats Directive, cited as the reason for his ‘No’ vote in the Nice referendum

‘an inflexible and unreasonable attitude towards implementation of certain policies. This struck me particularly in relation to the Habitats Directive, where the room for manoeuvre to allow people to continue with traditional activities was very limited and where the EU seems very reluctant to facilitate the full compensation of, for example, farmers, who had to de-stock because of the over-grazing of the hills. No doubt some of the public thought the inflexibility in implementing the directives, such as the Habitats Directive, came from Dúchas, but I can assure them it is not so.8

Ó Cuiv expressed these views in The Irish Times in June 2001, before the public campaign against the designations - described below - began.

Back to index

1.3 The anti-Natura 2000 Campaign Laffan and O’Mahony explain that:

“Farmers’ organizations emerged as key veto players in the implementation of the [Habitats] directive in Ireland, players whose voices the Irish government could not ignore if the directive was to be implemented.” [at p.186]

“Although agriculture as an industry has declined in importance in Ireland in recent years, farmers and their representative organizations still retain considerable political power (Adshead, 1996, p. 597). Compared with Irish environmental NGOs (Flynn, 2007; Taylor, 2001), the farmers’ groups possess considerable resources, both financial and political. Successive governments have been heavily influenced in both the agricultural and environmental sectors by the activities of the Irish farming lobby, most notably the two largest farming organizations, the Irish Farmers Association (IFA) and the Irish Creamery and Milk Suppliers Association (ICMSA). The IFA spends nearly half its income from farmers every year on its European lobbying efforts and exercises an influence on core executive policy makers far greater than its size would suggest (Murphy, 2005).” [at p.186]

7

These organisations have access to decision-makers and public representatives because their structure draws its strength from a universal rural committed membership base that includes all major political parties.9 This can produce large turnouts for public meetings and protests, historically a respected method of influencing political change in Ireland.

The campaign against designations began against SACs even before the Habitats Directive was transposed in 1997, fuelled particularly by imminent restrictions on ‘traditional’ turf cutting. It flared into the open in 2002 after the Government’s announcement of the first traunch of SPAs with a ‘keep out’ campaign against the Heritage Service (Dúchas), the predecessor of the current National Parks and Wildlife Service (NPWS), who were in the process of mapping the boundaries of the sites.10

This was followed in February and March of 2003 by protest meetings against the proposed Hen harrier designations, held in Ballina, County Mayo,11 and Templeglantine, County Limerick, respectively. A large crowd of between 600 and 800 attended the latter. Reporting on the meeting, the Irish Farmer’s Journal’s Mairead Lavery stated12 that:

“If the designation goes ahead, landowners interested in diversifying into forestry or wind farming may find it is no longer possible. Neither will they be allowed to spray rushes and they will have to get written permission from the Minister for the Environment for any development work on their land. In addition, the SPA designation will be shown as a burden on their deeds.”

She continued:

“Nicky Cotter of the Mid-Western Forestry Service told the meeting that already he is aware that the forest service has refused planting approval to some farmers following advice from Dúchas. He said the key problem is the approach taken by Dúchas on the issue:

"We know they (Dúchas officials) have to designate land, but they are going about it in the wrong way. They must look at more than science and must take into account social, economic and recreational issues'' [emphasis added].

8

The wording in bold urges the government to breach EC law, since such issues cannot legally be taken into account in selecting SPAs and their boundaries (C-44/95; C-3/96). The report goes on to note that,

“IFA president John Dillon urged all landowners to cease co-operating with Dúchas until a satisfactory agreement was reached on SAC and SPA designations. ‘Diversification into areas such as wind farming and forestry is essential for farmers,'’ he said. ‘Farmers are the species under serious threat, yet their survival seems to merit little consideration.’”

The protest meetings intensified the 2002 ban on all officials from Dúchas entering protected areas on farmers’ land.13 IFA Vice-President Brendan O’Mahony alleged in 2003 that Dúchas was “unthinkingly enforcing areas inside lines that faceless bureaucrats have drawn in Brussels.”14

In April 2003, a month after the protest meeting in County Limerick, Dúchas was disbanded by Cabinet decision. According to Irish Times columnist Michael Viney, Dúchas had become “hostage to the reckless populism of the IFA leadership”.15

The disbanding of Dúchas (which Viney eulogised as that “brave and enthusiastic notion to emerge from the Civil Service”) did not appease everyone. In May 2003 the body of a Hen harrier - shot dead with a rifle - was delivered to the offices of the Kerryman newspaper.16

Back to Index

9 2 SPA site selection process

In 2003 the National Parks & Wildlife Service (NPWS; previously Dúchas) had identified the nine most suitable areas in which to establish SPAs for Hen harriers in Ireland. The nine original candidate SPAs (ocSPAS) (see Map 3) were:

1 Slieve Aughty 2 Stacks to Mullaghareirks and Mount Eagle 3 Slieve Beagh 4 Slieve Felim to Silvermines 5 Slieve Blooms 6 Mullaghanish to Musheramore 7 Ballyhouras 8 Nagles 9 Kilworth (originally Kilworth & Knockmealdowns; the Knockmealdowns were included during the initial assessment for the ocSPA process, but were later excluded. Kilworth is situated at the western end of the Knockmealdown Mountain range see Map 5)

Back to Index

2.1 Exclusion of three sites Stakeholders expressed concern that designation might limit the extent and consequent profitability of farming and forestry activities in these areas.17 They claimed that there would be a blanket ban on afforestation over 425,000 acres. The woodland contractors estimating the cost of the designation in lost income at 16 million euro a pair.18

As a consequence the number of candidate sites was reduced from nine to six (see Map 4) and the extent of these six sites reduced to exclude significant areas of improved grassland, buildings and farmyards.19

The three excluded ocSPAs - the Ballyhouras, the Nagles and the Kilworths & Knockmealdowns - contain nationally important Hen harrier breeding areas, each

10 holding>1% of the all Ireland population. (One of the SPA selection criteria includes sites holding 1% or more of the all Ireland population of an Annex I species.)

The most recent Hen harrier breeding survey suggests that the:

• Ballyhouras’ breeding population is estimated to have increased from 7 pairs in the 1998-2000 survey to 17 - 19 pairs in the 2005 survey – 8.8% of the all-Ireland 2005 population and 12.5% of the Republic of Ireland (RoI) 2005 population. • Nagles’ breeding population increased from 3 - 5 to 9 confirmed territorial pairs at 4.2% of the all Ireland 2005 population. • Kilworths & Knockmealdowns contained 4 - 8 pairs in 1998-2000, and 3 to 5 territorial pairs were located in 2005, which is 2.3% of the all-Ireland population. (Note that this reduction is most likely to be a result of lower survey coverage in 2005 rather than a genuine decrease in Hen harrier numbers.)20

The importance of these three areas is highlighted when compared to the 2005 survey figures21 for three of the six pSPAs:

• Slieve Beagh with 4 pairs • Slieve Felim to Silvermines with 4 - 5 pairs • Mullaghanish to Musheramore with 5 pairs

Further, two of the excluded ocSPAs contain additional important species and habitats.

The Knockmealdowns were included in the national survey of Red Grouse, carried out by BirdWatch Ireland for the NPWS in 2007-2008 (cf. the ECJ’s decision in C-117/00 regarding Ireland’s failure to safeguard a sufficient diversity and area of habitats for the Red Grouse). Heath in the uplands of the Knockmealdowns corresponds to the EU Annex I habitat type.

Waterford County Council support Natural Heritage Area (NHA) status (a national site protection regime) for the Knockmealdown uplands. There are over 800 proposed NHAs around the country which have not yet reached statutory designation as current resources are devoted to meeting EU obligations.22 Thus, as a result of this site’s exclusion from the SPA designation process it has no specific protection.23

11 The Ballyhoura Mountains - one of the excluded ocSPAs - is a Site of Community Importance (SCI; referred to below as a candidate SAC (cSAC): [IE0002036]. The NPWS’s site synopsis states that:

‘The Ballyhoura Mountain range, including the largely afforested slopes outside the cSAC, are important for birds. Seven pairs of Hen Harrier and one pair of Peregrine are known to use the site. Both these species are listed on Annex I of the E.U. Birds Directive. The unplanted bog and heath within the site provides crucial foraging habitat and potential nesting sites for the very important Hen Harrier population. The heathland and surrounding afforested slopes are important for Hen harrier and Peregrine.24 [Emphasis added.]

In terms of overlap, significant areas of land in the ocSPA are not within the boundaries of the SCI. The exclusion of fragmented habitat to the east and south of the Slievefelim and Silvermine Mountains pSPA must also be questioned. The excluded habitat is known to be used for breeding and foraging (Caroline Lewis pers. obs.).

The Knockmealdowns were included during the initial assessment for the ocSPA process and it is difficult to understand why they were removed during the final assessment. They were surveyed together in the 2005 Hen harrier breeding survey and their populations were assessed as one unit (Barton et al 2006).

In addition, in the answer to a written Oireachtas question tabled in 2001, the Minister stated that:

‘Numerically the most important hill ranges are the Mullaghareirks-Stack's where there are 29 to 36 pairs, the Slieve Aughties which has 11 to 18 pairs, the Slieve Blooms which have ten to 11 pairs, Slievefelim-Silvermines which has seven pairs, Ballyhouras which also has seven pairs, and the Kilworth and Knockmealdowns which have five and seven pairs.’25

Given the ECJ’s decisions in the Lappel Bank case (C-44/95) and C-3/96, the exclusion from the SPA designation process of the three ocSPAs mentioned above on political and economic grounds (Appendix III) represents a clear breach of EC law.

Back to Index

12 2.2 Limiting Geographic range The Hen harrier’s range is already substantially reduced, in particular by its extinction in the Wicklow Hills which formed their easterly stronghold.

The three excluded ocSPAs are relatively close together and form the Hen harrier’s most south easterly stronghold (See Maps 3 & 4). This is particularly so if the Knockmealdown mountains are included in the Kilworth ocSPA, which was originally the case (see below).

Because these three sites comprise the most south easterly stronghold of the Hen harrier’s geographical range, their exclusion thus fails to protect the full range of the Hen harrier’s natural geographic land area in Ireland - which as a consequence may be further reduced. (See Maps 1 & 2)

The importance of protecting a species geographic range is clear from Article 4(1) of the Birds Directive, which provides that:

“The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution [emphasis added].”

Back to Index

2.3 Reason for Exclusion The reason the NPWS give for their exclusion of these three ocSPAs was the high level of forestry in the sites, resulting in an insufficient area of preferred habitat. The NPWS question the ability of the sites to retain five or more pairs of Hen harriers into the future unless provision is made for ‘additional habitat measures.’26 However, if this were the reason for excluding the sites, it raises question as to why these three sites were included as ocSPAs in the first place.

In fact, we would suggest that political and economic considerations were the reason for the exclusions.

13 An analysis of relevant economic factors in respect of the excluded ocSPAs highlights the very high level of return in such areas through the afforestation premium compared to other agricultural land uses such as payment for livestock units or compensation for SPA designation (see Appendix III). This creates a financial incentive in favour of afforestation over other land uses.

Additionally, Appendix III highlights the fact that the excluded south eastern geographical range of the Hen harrier is unique in falling within the 50 kilometre radius of the economic transport distance to the country’s largest manufactured board mills. These mills are owned, as is the bulk of Ireland’s commercial forestry, by Coillte Teoranta, the State Forestry Board.

Back to Index

14 3 Habitat protection

3.1 Habitat of the Hen harrier Hen harriers are ground-nesters. They typically lay their eggs and rear their chicks in stands of mature heather and may also nest in newly afforested areas where suitable ground habitat can be found.

However, for foraging, they rely on more open vegetation. They feed on grouse, voles, pipits and other small passerines which they take from shorter heather or grassy mosaics. Most birds move away from the uplands during the winter, moving down to the coast where they feed and roost on the salt marshes and neighbouring habitats27.

Within Ireland’s pSPAs and excluded ocSPAs this preferred Hen harrier habitat is fragmented, mainly through exotic (non-native) conifer plantations and to a lesser extent land improvement, development, wind farms and quarrying.

The NPWS Recommendations raise the key importance of habitat which can provide foraging areas for the species:

• ‘In Ireland it is extensive foraging habitat that limits breeding population size. Thus protection and management of the remaining areas of unplanted foraging habitat is seen as a priority for the species’ conservation.’ • Hen harrier populations in all nine ocSPAs are currently ‘limited by the carrying capacity of the breeding range’ ; • ’Extensive foraging habitat requirements limit breeding population size’ making protection of unplanted foraging habitat a conservation priority; • ‘The best measure of a site’s likely future ability to support Hen harriers, once new plantings mature, is the remaining area of heath/bog and rough grassland for foraging. 28

All six NPWS Hen harrier pSPA site synopses state that:

‘The main threat to the long-term survival of Hen Harriers within the site is further afforestation, which would reduce and fragment the area of foraging habitat, resulting in possible reductions in breeding density and productivity’.29

15

A 2006 report on the distribution of Hen harriers in Ireland in relation to land use cover, particularly forest cover, states that:

‘The proportion of land in the IAs [ocSPAs] that is unsuitable for Hen Harriers (i.e. mature forest and improved grassland) will increase from about 30% (at the time of the Hen harrier survey in 2002) to about 50% by 2015’. It points out that ‘Our estimate of suitable habitat cover in 2015 does not take account of any of the afforestation that will have occurred between 1999 and 2015’.30

Between 1999 and 200731 a further 102,796 hectares was afforested, the majority on marginal farmland - including land within the ocSPAs.

Back to Index

3.2 Forestry quotas in the ‘Forestry Management Protocol’ Pre-thicket first rotation and to a lesser extent pre-thicket second rotation forestry have been shown to provide temporary short-term breeding and foraging areas for Hen harriers. However they do not provide permanent suitable habitat.

Even in terms of the temporary suitable habitat provided by forestry, it is not the forestry per se that attracts breeding Hen harriers but the exclusion of livestock that allows for mature heather growth and long grass cover found within the forest area at certain stages of the forest’s development – their preferred nesting habitat.

This is illustrated by fieldwork during which it was possible to determine:

‘the habitat in the immediate vicinity of 18 nests within all classes of forestry. Heather was the most frequently recorded habitat, recorded in 77.8% (14 nests) of all known nests in forestry.’32 and ‘The ground vegetation of young plantation forests can be more suitable for Hen harrier nesting and foraging than that of surrounding open habitats, where heather and long grass cover can be limited by heavy grazing or burning (Madders 2003).’33

16 The real impacts of conifer plantation forestry on the Hen harrier are well recorded. Published concerns include:

• ‘due to forest maturation, the area of the ocSPAs in this category [<30% suitable habitat] would increase greatly by 2015, suggesting that the carrying capacity of these areas could be reduced’.34 • Even without further afforestation, ‘maturation of recent planting will result in an estimated 30% decline in the carrying capacity by 2015’ 35 • ‘Even if pre-thicket first and second rotation forests areas valuable to Hen harriers as the pre-planting open habitats they replace, afforestation will still result in a net loss of habitat to Hen harriers (Bibby and Etheridge 1993)’.36 • ‘It follows that, once a stable plantation age structure has been reached, the proportion of suitable foraging habitat on planted ground will always be substantially less than on a comparable area of unplanted heath & bog or rough grassland’. 37

The adverse impact of habitat changes is illustrated in a number of Irish examples.

In the Slieve Blooms (pSPA):

‘Numbers in the Slieve Blooms would therefore appear to have suffered a genuine decline, and there is evidence to suggest that this is possibly due to habitat changes. For example, in one of the 10 km squares which had two confirmed pairs in 1998-2000 “conifers have grown up in much of the good areas”, and “half of the remaining suitable habitat has been taken over by a quarry” (A. Copland, pers. comm.). This square had no sightings of Hen harrier in 2005’.38

Since the Slieve Blooms is a pSPA, to which the first sentence of Article 4(4) of the Birds Directive applies (by virtue of the ECJ’s decision in case C-374/98), this would appear to amount to a clear breach of EC law on the part of the Irish government.

In the Wicklow Hills – a former stronghold (see Maps 1 & 2) –

‘Hen harriers have disappeared, despite wide availability of young second rotation forests’.39 ‘Breeding birds are often still associated with the early

17 growth stages of conifer plantations, but Harriers have not recolonised the large areas of second-rotation forestry in County Wicklow and it is unclear if restock will continue to support breeding Harriers in the same way that new plantings have’. 40

In the UK it was recently noted that it had been

‘speculated that Hen harrier, for example, might return to big coupes on the upper edges of the forest, but it hasn’t happened’ 41

Conifer plantations are densely shading and due to their relatively long rotations (35 – 45 years) reduce seed banks of native flora. It has been found, for example, that the long term impact of forestry leads to a reduction in heather regeneration. Heather seed remains viable for approximately 40 years but there are ‘significant, exponential declines’ in the mean density of viable heather seeds with plantation age.’42 This may reduce the regeneration of suitable habitat following clearfell, even if the site is not replanted.

Hen harriers select areas with greater than 60% suitable habitat and strongly avoid areas with less than 40% suitable habitat.43 Forestry is not a permanently suitable habitat.44 The suitability of clear felled areas in the long term has not been proven.45 In the United Kingdom Hen harriers avoid 3rd & subsequent forestry rotations.46 In fact, due to uncertainties in relation to the long-term suitability of forestry for breeding Hen harriers the United Kingdom excluded conifer forestry from their SPAs.47

In sum, the Management Protocol for Forestry does not give adequate protection to the Hen harrier’s preferred habitat within the pSPAs. The potential effects of the current Management Protocol are clearly indicated in a series of charts set out in Appendix VI.

These charts show the level of forestry already in ocSPAs is significant and that the current Management Protocol would allow the forest area, including open space within the forest, to increase up to 58% of the SPAs’ total areas, leaving the Hen harrier little, if any, margin before they will ‘strongly avoid’ the areas.

Back to Index

18 3.3 Conversion of Rough Grassland. Rough grassland has been included in the pSPAs whereas improved grassland is excluded as it was considered to be unsuitable breeding habitat. Nevertheless, and illogically, the Management Protocol allows for the conversion of rough grassland into improved grassland within the pSPAs.

The Management Protocol states that within the SPAs (presently pSPAs) for Hen harriers:

‘no restrictions proposed to the intensification of grassland management and reseeding of fields of rough grass on the premise that intensification and reversion to rushy pasture are a part of a management dynamic in such areas. Fields which are intensified post designation need to be retained in an SPA to avoid continued afforestation.’48

The importance of rough grassland is emphasised by research in Scotland which found that:

‘male hunting was significantly related to the amount of unmanaged grass habitat with a litter layer. Female hunting was related negatively to vegetation height, and to the prevalence of both Heather (Calluna vulgaris) and managed grass. Dramatic changes in land use on Orkney have occurred over the last 40 years, with increases in the amount of intensive pasture and decreases in the amount of rough grazing. These changes, coupled with a doubling in sheep (Ovis aries) densities over the last 20 years, are likely to have reduced the amount of unmanaged grass. These changes will have been detrimental to hunting male Harriers by reducing the amount of food they can supply to the females prior to egg laying and during the incubation period.’49

Allowing the conversion of rough grassland to improved grassland will permit the further deterioration of the Hen harrier’s habitat.

Back to index

19 3.4 Exclusion of improved grassland. In hill areas improved grassland forms an integral part of the mosaic of habitats. It is economically the most valuable to the hill farmer. Although improved grassland is not normally used for nesting by the Hen harrier, it is used extensively for foraging (Amar, A et al 2004).50 This was further evidenced in Ireland during the 2005 survey, where:

‘several Hen Harriers were observed hunting along field boundaries in improved grassland sometimes 5km or more from their nest sites (Nagle et al., 2005)’.51

The exclusion of improved grassland from the pSPAs is a threat to the Hen harrier’s foraging habitat as there will be little if any restrictions on or regulation of land use changes. In particular there are no restrictions on afforestation which, unlike grassland reversion, results in a net loss of permanent foraging habitat.52

This exclusion has resulted in numerous small gaps or holes within the defined boundaries of the pSPAs that are evident on the maps. [See Map 6]

Within the pSPAs for Hen harriers there are no restrictions imposed on the intensification of grassland management, including the draining, ploughing and reseeding of fields of rough grass. The justification is that both ‘intensification and reversion of rushy pasture are part of a management dynamic in such areas’. Any ‘management dynamic’ must come within the scope of the Management Plan for the relevant site. The exclusion of improved grassland from pSPAs coupled with allowing rough grassland to be converted into improved grassland within the pSPAs is illogical, and in breach of EC law.

It is essential that Ireland include improved grassland within the pSPA (and excluded ocSPA) boundaries and in the Management Plans recognise the habitat’s importance. It is difficult to see how to ensure adequate foraging habitat for the Hen harrier unless this issue is addressed.

Back to Index

20 3.4 Open Space Within pSPAs “open space” is included as a separate habitat category in Ireland. Under Ireland’s afforestation programme 5 -10% of the forest can be left as open space as part of the biodiversity area. Open space includes:

‘ridelines and firebreaks, forest roads, turning bays, landing bays and their associated margins, together with buffer zones adjoining aquatic zones, exclusion zones adjoining archaeological features and areas left unplanted for landscape purposes’.53

These habitat types are not the preferred habitat of the Hen harrier. Open space does not contribute to the habitat type that is presently limiting the breeding population size of the Hen harrier in Ireland. The limiting factor is extensive foraging habitat54 not firebreaks scraped clear of vegetation, graded roads, and small fragmented open spaces within forest areas that rapidly become unsuitable.

Concerns were raised during the discussion phase of the designation process that:

‘without management they [open areas] are going to become unsuitable habitat at much the same time as plantation reaches thicket stage and ‘some 2nd rotation forestry is rapidly colonised by tall herb vegetation and scrub and is not very suitable from an earlier stage. It is difficult to see how unplanted areas can be prevented from becoming rank, particularly given their likely piecemeal and extensive distribution’.55 [Emphasis added].

Ireland’s Forestry Acts require replanting of any forestry that has been felled56. However, only the initial afforestation is grant aided. Second or subsequent rotation forestry is not grant aided and the environmental requirements, including that of 15% biodiversity and Open Space which are a condition of the original funding, no longer apply.57 Therefore the Open Space that is included as a preferred Hen harrier habitat under the SPA criteria is not permanent and may be lost on replanting.

Back to Index

21 4 Species Action Plans

There is no Species Action Plan (SAP) for the Hen harrier in or outside the pSPAs. Rather than develop a SAP as Northern Ireland and many areas of Great Britain have done, Ireland has adopted a piecemeal approach. Separate guidelines are developed for developments such as forestry and wind farms. This does not allow for the assessment of cumulative impacts - required under Article 6(3) of the Habitats Directive, which will apply once Ireland’s Hen harrier SPAs are finally designated.

For example, no allowance is made for activities like one-off housing developments, which the NPWS has instructed should not be refused development consent on the grounds of these designations if there are no other grounds for refusal. Oonagh Buckley, at the time Director of the NPWS, wrote to Clare County Manager, Alec Fleming, stating that

“where the Hen Harrier is the sole conservation interest in the SPA, the SPA designation should not be cited as grounds for refusing permission for development of single rural houses within the SPA.” 58

Ms Buckley said scientific advice advised the Minister that development of single rural dwellings does not represent a threat to the bird.

It is unclear how - if at all - this policy takes account of cumulative effects, which seems an important consideration given that the land in the pSPAs is divided amongst around 5,500 landowners.59 Indeed it is hard to see how such a presumption in favour of (cumulative) development fits in with the protection afforded by the first sentence of Article 4(4) of the Birds Directive (C-374/98). Further, Article 6(2) to (4) of the Habitats Directive will apply to the SPAs once designation has been completed and Article 6(3) expressly requires cumulative effects to be taken into account.

The terms of reference of the Working Group on the Hen harrier established in 2006 were:

“to consider and advise on ways in which forestry in the proposed SPA and adjoining areas can be planned and managed so as to maximise the compatibility of present and future forests with the foraging requirements of hen

22 harriers and the maintenance of breeding hen harrier populations in these areas.”

At the first meeting, the terms of reference were changed by the NPWS at the request of the stakeholders to remove the words “and adjoining”.60

The removal of these words does not remove the legal obligation. Article 4(4) of the Birds Directive - which provides for a stricter protection regime than Article 6(2) to (4) of the Habitats Directive (see paragraph 50 of C-374/98) - applies to protect Ireland’s ocSPAs (C-374/98), such that Ireland must:

“take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article.”

Article 6(3) of the Habitats Directive, which will apply once Ireland has designated its SPAs for the Hen harrier, extends to cover activities that are not actually in an SAC or SPA but in respect of which significant effects cannot be excluded (C-127/02) – e.g. activities in areas adjoining SACs or SPAs. And since Article 4(4) of the Birds Directive is stricter than the regime in Article 6(2) to (4) of the Habitats Directive, it is clear that activities in areas adjoining the ocSPAs are captured by Article 4(4).

In order to fully protect the Hen harrier a Species Action Plan that assesses the cumulative effect of land uses within and adjacent to Hen harrier SPAs, consolidating and revising existing Guidelines, must be prepared and implemented.

Back to Index

23 6. Conclusion In breach of EC law, Ireland has yet to establish a network of SPAs for the Hen harrier.

Further, the Management Protocol permits continued afforestation (at best temporary suitable habitat) on permanently suitable habitat in its pSPAs and excluded ocSPAs. This is in breach of the first sentence of Article 4(4) of the Birds Directive which continues to apply to such sites as a result of the ECJ’s decision in C-374/98. In allowing afforestation to continue in this way, Ireland has not “taken appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the [Hen harrier], in so far as these would be significant having regard to the objectives of Article 4 of the Birds Directive”

It has infringed the directive by:

• Excluding areas containing >1% of the all Ireland breeding population from SPA designation on political and economic grounds (see Section 1.2 and Appendix III); • Excluding integral habitat type (improved grassland), on political and economic grounds (see Appendix III and Map 6); • Excluding the Hen harrier’s south easterly geographic range; and • Failing to protect its preferred habitat type.

In order to adequately protect the Hen harrier and to comply with EC law, it is vital that:

• All nine ocSPAs are designated, including excluded areas of improved grassland; • A Species Action Plan be developed, and implemented without delay, that recognises the importance of the permanent habitats and the management required to meet the relevant obligations of the Habitats and Birds Directives within and outside of the designated areas.

Further, in all nine ocSPAs (areas that have not been designated as SPAs but which should have been so designated) the Irish government is obliged to take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the Hen harrier under the first sentence of Article 4(4) of the Birds Directive (C-374/98). In

24 other words, in addition to being obliged to designate all nine ocSPAs, pending such designation the Irish government is in breach of this obligation:

• by permitting damaging farming activities to continue in these areas, • by specifically encouraging through disproportional grant aid further forestry, • by permitting wind farm developments (see Appendix V for specific examples), and quarry developments (see endnote 35) in these areas; • by permitting one-off houses without consideration of cumulative impacts.

Afforestation, wind farms, residential developments and other potentially damaging activities within or near the ocSPAs must be brought to an end where they breach Article 4(4) of the Birds Directive. This must be done through appropriate use of the planning policy and development consent system, pending designation of the necessary SPAs.

Once the SPAs for the Hen harrier are designated, any such activities should be permitted only in compliance with Article 6(2) to (4) of the Habitats Directive.

Back to Index

25 Appendix 1: MAPS.

Map 1. The Old Breeding Atlas showing the All-Ireland natural breeding range of the Hen harrier 1968-1970.

. Back to: Index

Map 2: The breeding range of the Han Harrier in 2001.

Back to Index

26 Map 3: The ocSPAs – 105 pairs

KEY Site Name 1 Slieve Aughty

2 3 2 Stacks to Mullaghareirks and Mount Eagle 3 Slieve Beagh 4 Slieve Felim to Silvermines 1 5 5 Slieve Blooms 4 6 Mullaghanish to 2 Musheramore 7 9 6 8 7 Ballyhouras 8 Nagles 9 Kilworth

Back to Index

Map 4: The SPAs – 85 pairs

Hen Harrier SPAs

3

1 5 4 2

6

Back to Index

27 Map 5: Excluded ocSPAs

Ballyhouras

Kilworth & Knockmealdowns

Nagles

Back to Index

Map 6: Exclusions within proposed SPAs.

Source: http://www.designatednatureareas.ie/mapviewer/ Accessed 2 February 2009.

Back to Index

28 Appendix II Management Protocol for Forestry in Hen Harrier SPAs

1. Designation of Sites NPWS propose designating 6 SPAs for Hen Harriers, as follows;

• Slieve Bloom Mountains SPA Land in Laois and Offaly

• Stack’s to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle SPA Cork, Kerry and Limerick

• Mullaghanish to Musheramore Mountains SPA (Boggerahs) Cork,

• Slievefelim to Silvermines SPA Limerick and Tipperary,

• Slieve Beagh SPA Monaghan,

• Slieve Aughty Mountains SPA Clare and Galway,

Landowners will be notified by post of intention to designate the area concerned along with a map of the proposed SPA. They will be able to seek more detailed maps of particular areas.

There will be a three-month period within which landowners can lodge an objection to the designation of their lands as SPA. NPWS estimates that around 4,000 landowners will be involved.

29 2. Land to be included In order to satisfy habitat requirements, all three land types previously discussed (i.e. Existing Forestry, Rough Grassland, Heath and Bog) are all required to be included in the sites. The good agricultural land previously removed will stay out. NPWS is satisfied that all three land types provide important habitats for Hen Harrier.

3. Scope for Further Forestry within SPAs Each SPA is to contain a minimum of 55% suitable habitat (i.e. Forestry (pre-thicket 1st and 2nd rotation - see below), + Heath and Bog + Rough Grassland) + open space. New Forestry is suitable up to 12 years after planting while 2nd Rotation Forestry is suitable for 3 to 8 years after planting.

In general planting on Heath and/or Bog within the SPAs will not be allowed, save in exceptional circumstances. However, heath and bog may be used as part of the biodiversity/open space provisions in planting applications. The Forest Service is to consider the possibility of increasing the percentage of land provided for biodiversity. NPWS and FS to compile and issue guidance on the identification of H/B on this matter

Rough Grass will generally be the main available land type within the SPAs that may be planted. On the basis of the 55% suitable habitat threshold the following table shows the amount of Rough Grass available for planting in each of the six proposed SPAs: Area Area of available for Hen Harrier unplanted planting pSPA F RG under 55% (ha) threshold Slieve Blooms 3,040 See below Mullaghareirks 15,110 4,410 Boggeraghs 1,770 1,010 Slieve Felim 5,500 760 Slieve Beagh 570 390 Slieve Aughty 13,650 2,490 Total 39,640 (23%) 9,060

30

Quota Allocation of New Forestry It is proposed that the above area for planting should be released on an annual quota basis, over a 15-year period. In recognition of the fact that most of the applications which are being held at present are two years old or more, the quota will be frontloaded with 2 years quota available in the first year. Any unused quota from year one may be carried into year two. Thereafter, any unused quota may be carried forward from one year to the next, subject to the review of the management regime after 5 years.

With regard to the Slieve Blooms, given the high level of existing forestry, it has been difficult to identify an area of suitable land. Instead, any applications will be examined on a case by case basis to assess suitability.

This quota will be managed by the Forest Service, taking account of likely conversion rates on applications and monitored closely in consultation with NPWS.

4. Implications for Hen Harrier areas outside of 6 SPAs Under the Habitats Directive Ireland must also examine the issue of Hen Harrier conservation as it arises outside of the designated SPAs. This is a particular issue in the 3 non-designated Indicative Areas (Ballyhouras, Nagles and Kilworth) but other such areas may need to be defined by NPWS through further research.

With regard to forestry applications in these areas, it is proposed that the Forest Service will address this issue in the first instance.

5. Review These arrangements to be reviewed within 5 years. This review to be informed by COFORD/NPWS research being carried out in UCC.

Back to Index

31 Appendix III – Economic reasons for exclusion of three ocSPAs

In our submission, the three excluded ocSPAs and the exclusion of improved farmland from the pSPAs were motivated by the following economic considerations.

The existence of an SPA clearly has the potential to make farming, forestry and other activities more difficult (i.e. in terms of the increased regulatory burden and the possibility of certain activities being restricted or prohibition), such that the Irish government, pressed by stakeholders, has an interest in minimising its number of SPAs (in general) insofar as is possible.

The Government is aware of compensation obligations in respect of SPAs. The final paragraph of the NPWS’s information on site designation states: “The Government is committed, as part of the social partnership process, to the payment of a fair and proper level of compensation to landowners and users for actual losses suffered due to restrictions imposed as a result of their lands being included in formal proposals for designation as NHA, SAC or SPA.”61

In terms of the three excluded ocSPAs, it is our submission that specific economic circumstances, in addition to the pressure exerted by stakeholders (detailed above), led to their exclusion. As set out in detail below, the grant aid system for forestry in Ireland makes forestry more attractive than SPA compensation payments or livestock production on all poor quality marginal land (such as that in the excluded ocSPAs).

In addition, the excluded ocSPAs are located in a particularly advantageous position for the transport of timber at low cost to the board mills.

Disproportionate grant aid There is a disproportionate grant aid of forestry on poor quality marginal land. Hen harriers frequent open moor land and hill farmland. These land types are not highly productive. A well managed perennial ryegrass / white clover sward is capable of sustaining stocking rates of 1.3 to 1.7 livestock units (LU)/ha.62 It is provisionally estimated that the average grazing capacity of the mountain and hill units is 0.5 L U /ha.63

The issue of the disproportionate level of grant aid to afforestation on Irish uplands was raised following the EU Court of Auditors’ ‘Audit Mission to Ireland to examine

32 Forestry Measures funded from the EAGGF Guarantee and Guidance Funds’ in 2005.64

‘We are not convinced of the reality of a loss of income in areas of previous extensive agricultural use (mostly on unenclosed land). Even if very extensive farming was done (a couple of sheep for 2 to 3 months per year) a premium for loss of income is paid at a level of at least 209 EUR/ha/year. We doubt if this is realistic.’

Updated to 2008, the income from normal agricultural practices in these areas is between a net loss of €82 per hectare per year (ha/yr) for beef cattle and a gross profit of €61 for sheep. The Rural Environment Protection Scheme (REPS) is Ireland’s national scheme, pursuant to EU CAP obligations, to reward farmers for carrying out their farming activities in an environmentally friendly manner and to bring about environmental improvement on existing farms. The REPS 4 payment for designated areas is €242 ha/yr. The SPA payment in Hen harrier areas is €350 ha/yr. This higher payment in Hen harrier SPAs is to compensate for potential loss of income through forestry premiums and wind farms. Typical afforestation premiums are €480 ha/yr. This is a real incentive to afforest areas that would otherwise give a very low financial return.

Estimated income from normal agricultural activities on improved grassland and hill/mountain land.65 gross REPS Hen Net margin annual harrier Forestry margin hill SPA Premium LU per beef payment Land Type sheep @ annual (diverse hectare cattle @ per 0.15 LU payment conifers 1LU per hectare per 66 per >12ha) cow (1) sheep hectare Improved grassland 1.3 -82 61 242 350 478.94 Hill/ mountain land 0.5 -42 23 242 350 478.94 (rough grazing) (1) for eligible Commonage land, Natural Heritage Areas, Special Areas of Conservation and Special Protection Areas up to a maximum of 40 hectares.

33

Specific drivers in excluded SPAs In the long term Irish forestry plantations are proving overly expensive to establish, manage, and harvest. They have significant negative economic implications, particularly in hill areas. A key factor is the country’s inadequate transport infrastructure with excessive transport costs falling on to remote and fragmented locations.

Teagasc, the Government’s agricultural advisory agency advises:

‘The low mill gate prices for and the costs associated with harvesting and transportation of the pulpwood fraction can result in losses for plantation owners.’ 67

Thus the value of forestry is related to its location. The greatest incentive to afforestation will be in areas within economic transport distances of manufacturing facilities. The two major state owned manufactured board mills are Medite in Clonmel County Tipperary and Smartply in Waterford Port.

For haulage distances greater than approximately 50 kilometres, pulp wood coming from thinning operations is not regarded as an economic product in the current market place.68 The Ballyhouras , Nagles, Kilworth and Knockmealdowns, and southern flank of the SiIvermines are within economic transportation distance of these plants.

Further, SmartPly Europe have constructed their facilities on land leased from the Waterford Harbour Commissioners and Kilkenny County Council. The Company has a commitment, under the terms of the lease, to ship a certain agreed tonnage of finished product through the Port of Waterford each year or accept financial penalties for shortfalls.69

The disproportionate grant aid for forestry makes it more attractive than livestock production or SPA compensation payments on all poor quality marginal land. In these areas of the south east, however, the commercially advantageous low transport costs added further pressure to ensure that forestry development was not hindered by European environmental restrictions.

Back to Index

34 Appendix IV: Species Action Plans and Resources Allocated to Nature Conservation: Northern Ireland/the UK compared to the Republic of Ireland

The Republic of Ireland (RoI) has a cross border SPA for the Hen harrier - Slieve Beagh - with Northern Ireland (NI). The site is a designated SPA on the NI side (Source: http://www.jncc.gov.uk/pdf/SPA/UK9020302.pdf accessed 04 Feb 2009) and a pSPA on the RoI side. The NI Hen harrier Species Action Plan has the following targets

4.1 Maintain the current population of 57 nesting females. 4.2 Maintain the range of breeding birds at 20 10km2. 4.3 By 2010, increase the population to 68 nesting females. 4.4 Increase the range of breeding birds to 25 10km2 by 2010. 4.5 By 2020, increase the population to 90 nesting females. 4.6 Increase the range of breeding birds to 30 10km2 by 2020.’

(Source: http://www.ni- environment.gov.uk/henharriersapmbwebversionapril05changed-2.pdf accessed 04 Feb 2009)

The Northern Ireland forms part of the United Kingdom (UK). In the UK

‘All sites that were known to support more than 1% of the national breeding population were considered under Stage 1.1 and all were selected after consideration of Stage 2’. (A6.47a Hen Harrier Circus cyaneus (breeding)) Source: http://www.jncc.gov.uk/pdf/UKSPA/UKSPA-A6-47A.pdf accessed 04 Feb 2009)

NI’s approach affords more appropriate conservation for the Hen harrier than is offered by the RoI. In the RoI there are no SPAs for the Hen harrier at present, no Species Action Plan, no plans to increase the number of breeding pairs, and important areas have been excluded from the list of pSPAs for political and economic reasons.

35 In addition, and as a general matter, there are insufficient resources allocated to environmental legislation and protection in the RoI, particularly when compared with the United Kingdom. This was highlighted by Birdwatch Ireland who stated that:

In both the ‘Countryside Council for Wales (CCW) and the Scottish Natural

Heritage (SNH) there is in the order of 20 or 30 people working on European

designations… In contrast the NPWS have one or two’. And ‘for birds there is

only one’. There has been ‘a one-man show on the designation of special

protection areas for birds, while in SNH there are 20 or 30 people working on

the same sorts of issues. That indicates a gross under-resourcing of the

Department.70

That said, the Irish government advertised in summer 2008 to recruit a team of six people to deal with its ongoing SPA designation process. Whether the recruitment of this team and its subsequent work has been affected by the recent deterioration in Ireland’s public finances is unclear, however.

In terms of legal resources, the UK government’s Department for Environment, Food and Rural Affairs (Defra) has around 100 lawyers working for it, including around 10 who work in the legal department’s “Countryside and Nature Conservation” division, with three lawyers in that division working on the Habitats and Birds Directives (Andrew Jackson, pers. comm.). In addition, Northern Ireland’s Department for Environment has its own legal team, which works in partnership with Defra’s lawyers where necessary. In contrast, Ireland’s Department of the Environment, Heritage and Local Government has one lawyer, covering all areas of departmental policy.71

Back to Index

36 Appendix V: Wind farms within one pSPA in County Cork: breach of Article 4(4) of the Birds Directive

While we have not sought to review development projects in all of the pSPAs and excluded ocSPAs, a number of specific examples within one of the pSPAs can be highlighted. The projects in question - which have either recently been permitted or are actively under consideration - are all due to be constructed within the “Stack’s to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle” pSPA (Code 004161).

Significantly, this pSPA was the site of a large landslide in August 2008 - apparently caused by wind farm construction activities - prompting the European Commission to launch an investigation, having commented that the “lessons of Derrybrien” did not appear to have been learnt by the Irish authorities.

In October 2003, construction of the Derrybrien wind farm in County Galway triggered a huge landslide which caused, in the words of the European Court of Justice, “an ecological disaster, when the mass of peat which was dislodged caused the death of about 50,000 fish and lasting damage to the fish spawning beds” (C-215/06).

In light of these incidents, it is alarming that wind farm proposals continue apace within the boundaries of the pSPA, as detailed below.

While the site has not formally been designated as an SPA, the NPWS has prepared a site synopsis. The synopsis affirms that the site is of importance for a number of Annex I bird species, including:

(1) “the largest concentration of the [Hen harrier] in the country”, making the site “among the top two sites in the country for the species”; (2) the Short-eared owl (Asio flammeus), which is “very rare” in Ireland; and (3) the Merlin (Falco columbarius). Red grouse are also found on some of the unplanted areas of bog and heath.

In light of the site’s conservation importance, it is difficult to understand the statement in the site synopsis that “The site has a number of wind farm developments but it is not yet known if these have any adverse impacts on the Hen Harriers.” A similar statement is made in the site synopsis for another of the pSPAs, Slieve Aughty

37 Mountains.72 Since these sites are pSPAs (and hence are clearly sites that have not been classified as SPAs but should have been so classified), the first sentence of Article 4(4) of the Birds Directive applies (by virtue of the ECJ’s decision in C-374/98). In other words, the Irish government must “take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article.” Significantly, Article 6(4) of the Habitats Directive, which provides a derogation allowing damaging projects to go ahead in limited circumstances, is not available until a site has been formally designated as an SPA.

Friends of the Irish Environment fully supports renewable energy projects that do not impact negatively on biodiversity. In this regard, we note Professor Richard Hodas of the University of Widener’s argument that

“In developing climate change law, we must not forget the need to protect and enhance biodiversity. For example, we should discourage carbon sequestration projects that reduce biodiversity and social well-being, such as monoculture afforestation. Instead we should seek win-win sustainable development solutions that reduce GHGs while protecting and enhancing biodiversity.”73

Allowing wind farms to continue operating in circumstances where it is acknowledged that the effects on the Hen harrier are unknown is a breach of Article 4(4) of the Birds Directive, since the Government has not taken “appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of” Article 4.

That a precautionary approach should be taken here is clear, since

(a) the ECJ has confirmed that Article 4(4) of the Birds Directive provides a stricter protection regime than Article 6(2) to (4) of the Habitats Directive (see paragraph 50 of C-374/98); (b) a wind farm could not be granted consent in the above circumstances via Article 6(3) – cf. “no reasonable scientific doubt remains as to the absence of [adverse effects on integrity]” – the ECJ in C-127/02; and (c) in her Opinion in C-127/02, AG Kokott makes it clear that: • measures under Article 6(2) of the Habitats Directive, which mirrors the first sentence of Article 4(4) of the Birds Directive (and applies to

38 ongoing projects, which have received permission in the past), “may be no less effective than the procedure under Article 6(3) of the habitats directive” (at paragraph 118); and • the substantive standard of protection under Article 6(2) and 6(3) is “identical” (at paragraph 117).

In spite of the legal position, not only are existing (potentially damaging) projects being allowed to continue at present, but a new wind farm has recently been granted planning permission, and new applications are presently being considered. The pSPA has been the subject of at least 5 applications to develop wind farms, 3 of which are awaiting decision at the time of writing.

While the designation of Ireland’s SPAs for Hen harriers is caught up in the national appeals’ process (created at the behest of farming interests – see Laffan and O’Mahony’s article (endnote 6), at p.8) - developers and landowners are seeking to “rush through” planning applications before the sites are formally designated.

Such a strategy is of course misguided and should fail. The protection regime that should be applied by the Irish government in the current phase - Article 4(4) of the Birds Directive - is in fact stricter (were it being applied in practice) than the regime (Article 6(2) to (4) of the Habitats Directive) that will apply once the sites are actually designated (C-374/98).

Wind farm applications in “Stack’s to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle” pSPA (Code 004161)

Cork County Council is the relevant planning authority in respect of all of the following applications.

(1) Applications 04/8354 and 07/12954 Application 04/8354 was for the construction of 29 wind turbines (hub height 80m, blade diameter 90m), an electrical sub-station with control building, two 80m high meteorological masts, and the construction and extension of internal site tracks and associated works at Meentinny West, County Cork – Applicant SWS Natural Resources Limited.

39 The project received planning permission on 14 January 2005, on the condition, we understand, that a study be carried out (pre and post construction) of the interaction of wind farms and Hen harriers. As the wind farm has yet to be constructed, clearly this study remains incomplete. In this regard, it is worth recalling the NPWS’s statement in the site synopsis dated 21 May 2007 (link above), that: “it is not yet known if these [wind farms] have any adverse impacts on the Hen Harriers.”

A connected application - 07/12954 - which received conditional planning permission on 25 September 2008, related to the construction of 10 borrow pits for the construction of the 29 turbines.

(2) Application 08/10248 This application is for the erection of 8 wind turbines (hub height 80m, blade diameter 90m and overall height from ground to blade tip 125m), the construction of four borrowpits and internal site tracks and associated works at Glentanemacelligot, Glennakeel, South Newmarket, County Cork – Applicant SWS Energy Ltd.

A decision is due from Cork County Council on 21 February 2009.

(3) Application 08/10249 This application is for the erection of 5 wind turbines (hub height 80m, blade diameter 90m and overall height from ground to blade tip 125m), three borrowpits and the construction of internal site track and associated works at Tooreenmacauliffe, Rockchapel, County Cork – Applicant SWS Energy Ltd.

Again, a decision is due from Cork County Council on 21 February 2009.

In our view, the grant of planning permission in 2005 and 2008 in respect of the applications mentioned in (1) above represents a clear breach of the first sentence of Article 4(4) of the Birds Directive. After all, in 2005 and 2008 the site (which is now a pSPA) was evidently an area that had not been classified as an SPA but which should have been so classified, such that Article 4(4) of the Birds Directive applies (C-374/98).

To allow wind farms to be constructed on such a site on the condition that a study be carried out of the interaction between windfarms and Hen harriers pre and post construction, represents, in our view, a clear failure to take “appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as

40 these would be significant having regard to the objectives of” Article 4. After all, once the project has been completed, a post-construction study of the impacts on the Hen harrier will be of little use to the species if the study reveals the impacts to be negative. Put another way, there would appear to be no need whatsoever to allow a new wind farm to go ahead in order to study the interactions between the Hen harrier and wind farms. Such interactions could be studied in respect of existing wind farms – either here in Ireland or elsewhere (e.g. the UK).

Similarly, it is our view that the Irish government will be in breach of Article 4(4) of the Birds Directive if Cork County Council grants planning permission in respect of applications (2) and (3) above in February 2009.

(4) Application 09/4138 This application is for a further 5 Wind turbines (hub height 80m, blade diameter 90m) with an overall height from ground to blade tip of 125m, three borrowpits & construction of an internal site tracks & extension of existing forestry access track & associated works. Rockhill West, Milleenduff, Rockchapel. Applicant SWS Energy Ltd. It is at the pre-validation stage.

Back to Index

41 Appendix VI

Pie chart series showing current forest cover and impact on permanent preferred habitat from further afforestation permitted under the current management protocol

51% of the land in the ocSPAs is forestry - not a suitable long term habitat according to the NPWS

% forestry already present in ocSPAs 49% 51%

% suitable natural habitat in ocSPAs

A total of 58% forest area will be allowed in SPAs under the current Management Protocol

% total forest area 42%

58% % suitable natural habitat

At 60% unsuitable habitat Hen harriers leave the area

% unsuitable habitat 40%

60% % Hen harriers leave when suitable habitat falls below this level

Back to Index

42

References.

1 See the reference to 169,000 hectares in The Irish Times, 7 August 2008, “Objections lodged to protected areas for hen harriers,” Gordon Deegan http://www.irishtimes.com/newspaper/ireland/2008/0807/1218047756416.html.

2 About the Birds Directive http://ec.europa.eu/environment/nature/legislation/birdsdirective/index_en.htm accessed January 2009.

3 See Krämer, L. (2007). EC Environmental Law, Sixth Edition, Sweet & Maxwell, London, at p.202.

4 A limited exception to this is provided by the Leybucht Dkyes case (C-57/89). The ECJ established in that case that, once classified, the reduction in size of an SPA (e.g. because of a construction project within the site’s boundaries) could be justified only on exceptional grounds. Such exceptional grounds, the ECJ held (at paragraph 22), “must correspond to a general interest which is superior to the general interest represented by the ecological objective of the directive.” On the facts of the case, the ECJ held that the interests of public safety justified the coastal protection works authorised by the German government. Crucially for our considerations here, however, the ECJ held that the interests referred to in Article 2 of the Birds Directive, namely economic and recreational requirements, could not be considered as exceptional grounds justifying the reduction in size of an SPA.

5 The ECJ had of course established in the earlier Santoña Marshes case (C-355/90) that a Member State cannot avoid its Article 4(4) Birds Directive obligations simply by not classifying an area as an SPA. Thus, notwithstanding the fact that the Spanish government had not actually classified the area in question as an SPA in that case, it was nevertheless found in breach of Article 4(4) for permitting various damaging activities to take place in the marshes (e.g. road-building, clam- farming, and the discharge of untreated waste).

6 Laffan, B. & O’Mahony J. (2008) 'Bringing Politics Back In'. Domestic Conflict and the Negotiated Implementation of EU Nature Conservation Legislation in Ireland. Journal of Environmental Policy & Planning 10(2): 175-197.

7 Quoted in O’Kelly, C. (2004) Being Irish, Government and Opposition 39(3): 504-520, at 515.

8 The Irish Times, June 22, 2001. [Laffan and O’Mahony, at pp.184-185]

9 Data from the Central Statistics Office (CSO) of Ireland show that the agri-food sector contributed 8.6% of GDP and 8.5% of total employment in 2005. When the sector statistics are decomposed to consider the role of agriculture alone, the contribution of the sector to GDP is found to be approximately 2.5% in 2005. That said, the relative significance of agriculture to the local economy differs substantially by region (e.g. agriculture accounted for over 15% of employment in four of the eight regions in Hennessy et al’s recent study of agriculture across Ireland). See Hennessy, T., Shreshta, S. and Farrell, M. (2008), “Quantifying the viability of farming in Ireland: can decoupling address the regional imbalances?” Irish Geography 41(1): 29-47, at 32-33.

10 IFA Press Release, 12 December 2002. See Laffan and O’Mahony, supra note 6, at p.192.

11 See Dr Crowley’s contribution in a debate in the Oireachtas on 19 February 2003: Source http://www.birdweb.net/henharrier.html#AnchorHenHarrier Accessed 08/02/2009

12 Source: http://www.farmersjournal.ie/2003/0308/ruralliving/countrylifestyle/feature.htm. Accessed 08/02/2009

13 See Laffan and O’Mahony (2008), supra note 6, at 192.

14 See John Lee, The Sunday Times, 9 March 2003, ‘EU law gives Irish farms to the birds’: Source http://www.timesonline.co.uk/tol/news/world/ireland/article1117679.ece Accessed 08/02/2009

15 Michael Viney, The Irish Times, 10 May 2003, ‘Brooding on the Politics of Conservation’. Source http://www.irishtimes.com/newspaper/weekend/2003/0510/1052466093572.html Accessed 08/02/2009

16 “Hen harrier was shot by rifle”, The Kerryman, 22 May 2003: Source http://www.kerryman.ie/news/hen-harrier-was- shot-by-rifle-824622.html. Accessed 08/02/2009. As the IFA’s then President highlighted, there was “no evidence that [the] bird was killed by a farmer or sent to The Kerryman by a farmer.”

17 Wilson, M. (2006) Report on 2005 Hen Harrier Survey Data For National Parks and Wildlife Service, Dublin., p1.

18 Woodland Contractors Limited to National Parks and Wildlife Service, 5 May 2006. ‘Yet you want to set aside some 425,000 acres of land and impose a blanket ban on afforestation and perhaps other forestry activities at an economic cost of maybe €16 million per pair.’

43

19 Norriss, D. & Wilson, J. (2007) Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service, Dublin., p7

20 Barton, C., Pollock, C., Norriss, D.W., Nagle, T., Oliver, G.A. & Newton, S (2006) The second national survey of breeding Hen Harriers Circus cyaneus in Ireland 2005, Irish Birds (8), p12.

21 Barton, C., Pollock, C., Norriss, D.W., Nagle, T., Oliver, G.A. & Newton, S (2006)The second national survey of breeding Hen Harriers Circus cyaneus in Ireland 2005, Irish Birds 8.

22 Dail Debates, Vol. 183 No. 1, Tuesday, 21 March 2006 Source http://debates.oireachtas.ie/DDebate.aspx?F=SEN20060321.xml&Page=2&Ex=527#N527 Accessed 08/02/2009

23 Conserving our Natural Heritage County Waterford Local Biodiversity Action Plan (2008 – 2013) Waterford County Council. Source http://www.waterfordcoco.ie/en/services/heritage/Biodiversity%20Plan%20%20Publication.pdf Accessed 08/02/2009

24 Site Synopsis Site Name: Ballyhoura Mountains Site Code: 002036 (23.6.2003) NPWS Source http://www.npws.ie/en/media/Media,4142,en.pdf Accessed 08/02/2009.

25 Dáil Éireann (2001) Written Answers. - Wild Bird Protection. Volume 536 – 23. Source http://historical- debates.oireachtas.ie/D/0536/D.0536.200105230131.html Accessed 08/01/2009

26 Norriss, D. & Wilson, J. (2007) |Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service., p10

27 CRoW Act 2000: S74 – Wales List Species Action Plan Wales Biodiversity Partnership

28 Norriss, D. & Wilson, J. (2007) |Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service p4 & p9

29 Site Synopses sourced at http://www.npws.ie/en/ConservationSites/SpecialProtectionAreasSPAs/ accessed 08/01/2009

30 Wilson, M., Gittings, T., O’Halloran, J., Kelly, T., and Pithon J. (2006) The distribution of Hen Harriers in Ireland in relation to land use cover, particularly forest cover COFORD Connects Environmental Note 6. p1 & p6.

31 Dáil Éireann - Volume 654 - 20 May, 2008 Written Answers. Afforestation Programme. http://historical- debates.oireachtas.ie/D/0654/D.0654.200805200081.html Accessed 26/01/2009

32 Barton, C., Pollock, C., Norriss, D.W., Nagle, T., Oliver, G.A. & Newton, S (2006)The second national survey of breeding Hen Harriers Circus cyaneus in Ireland 2005 Irish Birds 8., p14

33 Wilson, M., Gittings, T., O’Halloran, J., Kelly, T., and Pithon J. (2006) The distribution of Hen Harriers in Ireland in relation to land use cover, particularly forest cover COFORD Connects Environmental Note 6. Source http://www.coford.ie/iopen24/pub/COFORD-Connects/HenHarrier.pdf Accessed 08/02/2009

34 Wilson, M. (2006) Report on 2005 Hen Harrier Survey Data For National Parks and Wildlife Service Dublin., p6.

35 Wilson, M., Gittings, T., O’Halloran, J., Kelly, T., and Pithon J. (2006) The distribution of Hen Harriers in Ireland in relation to land use cover, particularly forest cover COFORD Connects Environmental Note 6. p6. http://www.coford.ie/iopen24/pub/COFORD-Connects/HenHarrier.pdf

36 Wilson, M., Gittings, T., O’Halloran, J., Kelly, T., and Pithon J. (2006) The distribution of Hen Harriers in Ireland in relation to land use cover, particularly forest cover COFORD Connects Environmental Note 6. p2. http://www.coford.ie/iopen24/pub/COFORD-Connects/HenHarrier.pdf

37 Norriss, D. & Wilson, J. (2007) Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service p5.

38 Barton, C., Pollock, C., Norriss, D.W., Nagle, T., Oliver, G.A. & Newton, S (2006)The second national survey of breeding Hen Harriers Circus cyaneus in Ireland 2005 Irish Birds 8 p 11.

39 Wilson, M., Gittings, T., O’Halloran, J., Kelly, T., and Pithon J. (2006) The distribution of Hen Harriers in Ireland in relation to land use cover, particularly forest cover COFORD Connects Environmental Note 6, p2. http://www.coford.ie/iopen24/pub/COFORD-Connects/HenHarrier.pdf

44

40 Norriss D. et al. (2002) A national survey of breeding Hen Harriers Circus cyaneus in Ireland 1998-2000. Irish Birds, Vol. 7; No. 1, pp1-10.

41 Leslie, R,. (2008) Mitigating climate change: The challenges and opportunities for forestry in Ireland Silver Springs Hotel, Cork Environmental Advisor [email protected]

42 R. F. Pywell, , a, R. J. Pakemanb, E. A. Allchinc, N. A. D. Bournd, E. A. Warmana and K. J. Walker (2002) The potential for lowland heath regeneration following plantation removal Biological Conservation Volume 108, Issue 2, , pp 247-258 Source http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6V5X-45PTSWJ- 2&_user=10&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&_acct=C000050221&_version=1&_urlVersion=0&_userid= 10&md5=bc0746678543b79f40e419ca7932817d Accessed 08/02/2009

43 Norriss, D. & Wilson, J. (2007) Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier, National Parks and Wildlife Service p6.

44 Bibby, C.J. and Etheridge, B. (1993) Status of the Hen Harrier Circus cyaneus in Scotland in 1988-89. Bird Study 40, pp1-11.

45 Norriss D. et al. (2002) A national survey of breeding Hen Harriers Circus cyaneus in Ireland 1998-2000. Irish Birds, Vol. 7; No. 1.

46 Petty et al., 1986. and Madders, 2000 in Wilson, M. (2006) Report on 2005 Hen Harrier Survey Data, For National Parks and Wildlife Service Dublin

47 Norriss, D. & Wilson, J. (2007) Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service., p6.

48 Norriss, D. & Wilson, J. (2007) Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service p10.

49 Amar, A., Arroyo,.B.,Meek, E., Redpath. S.,& Riley, H,. (2004) Influence of habitat on breeding performance of Hen Harriers Circus cyaneus in Orkney Ibis Volume 147 Issue 1, pp 37 – 47.

50 AMAR, A., ARROYO,.B.,MEEK, E., REDPATH. S.,& RILEY, H,. (2004) Influence of habitat on breeding performance of Hen Harriers Circus cyaneus in Orkney Ibis Volume 147 Issue 1, pp 37 – 47.

51 Wilson, M. (2006) Report on 2005 Hen Harrier Survey Data For National Parks and Wildlife Service Dublin

52 Bibby, C.J. and Etheridge, B. (1993) in Wilson, M., Gittings, T., O’Halloran, J., Kelly, T., and Pithon J. (2006) The distribution of Hen Harriers in Ireland in relation to land use cover, particularly forest cover COFORD Connects Environmental Note 6. p2 http://www.coford.ie/iopen24/pub/COFORD-Connects/HenHarrier.pdf

53 Forest Biodiversity Guidelines (2000) Forest Service Dublin

54 Norriss, D. & Wilson, J. (2007) Recommendations for Special Protection Areas (SPAs) for Breeding Hen Harrier National Parks and Wildlife Service, p4.

55 NPWS (19 April 2006) ‘Discussion points for Hen harrier Working Group Proposal’.

56 Revision of Ireland’s Forestry Acts went to public consultation in 1999 and again in 2006. However, while the replanting requirement may be amended, the legislative review excludes the Act that established Coillte Teo, the State Forestry Board, with its commercial principle object.

57 The requirement for replanting does not arise as part of the initial afforestation grant but is implemented through a Felling Licence which is required to fell any tree and to which conditions can be attached. The legality of environmental conditions and the degree to which they could be enforced appears not to have been addressed to date.

58 ‘Bird will not affect planning’, Irish Examiner, 24 January, 2008. This letter and the advice supporting is under request from the Department of the Environment by Friends of the Irish Environment.

45

59 See Department of the Environment, Heritage and Local Government Press Release, 9 November 2007, “Proposals to Designate Special Protection Area (SPAs) for Hen Harriers”: http://www.environ.ie/en/Heritage/NationalParksandWildlife/News/MainBody,15820,en.htm Accessed 09/02/2009

60 Minutes of the 1st Meeting of the Hen Harrier Working Group, 2 March, 2006, Montague Hotel, Co. Laois

61 Source: NPWS, Implications of site designation. http://www.npws.ie/en/ProtectedSites/ImplicationsofSiteDesignation/ Accessed 08/02/2009

62 Source: http://www.teagasc.ie/publications/2009/TeagascGrasslandManagement19-11-08.pdf page 2. Accessed 04/02/2009

63 Source: http://www.agresearch.teagasc.ie/rerc/downloads/workingpapers/07wpre18.pdf page 11 Accessed 04/02/ 2009

64 European Court of Auditors, Special report No 9/2004 http://eca.europa.eu/portal/pls/portal/docs/1/173377.PDF Accessed 08/02/2009

65 Breen. J,.. Connolly.L. Donnellan. T,. Hanrahan. K,. Hennessy. T,. Kinsella. A,. Martin. M,. Ryan. M,. Thorne. F,. (2008) Situation and Outlook in Agriculture 2008/09 Teagasc Rural Economy Research Centre p5 Table 1 p5 Table 1 & p86 Table 6. Source: http://www.agresearch.teagasc.ie/rerc/downloads/SitOutl_2008_Proceedings_a.pdf Accessed 07/02/2009

66 147/07 Eur 3 Billion Rural Environment Protection Scheme (REPS 4), page 2. Source: http://www.aughty.org/pdf/reps4launch.pdf Accessed 13/01/ 2009

67 A Road Map for the Farm Forestry Sector to 2015 Forestry Development Unit, Teagasc, 2007. Source: http://www.teagasc.ie/publications/2008/20080507/Forestry_Roadmap.pdf Accessed 07/02/2009

68 A study of the County Clare Farm Forestry Market Summary Report (2004), Rural Resource Development, page 9. Source: http://www.ccwep.ie/pdf/Forestry_Report.pdf Accessed 07/02/2009

69 Source:http://www.coillte.ie/fileadmin/user_upload/pdfs/Annual_Report_2006_Financials.pdf Accessed 07/02/2009

70 Joint Committee on Environment and Local Government (7 April 2004). BirdWatch Ireland: Presentation.p13. Source: http://www.oireachtas.ie/documents/committees29thdail/jcelg/jelg070404.rtf Accessed 08/02/2009

71 Source: http://www.environ.ie/en/AboutUs/OrganisationalStructure/FileDownLoad,1166,en.pdf. Accessed 07/02/2009 The lawyer in Ireland’s Department for the Environment will of course be supported by a lawyer or lawyers in the Attorney General’s Office. That said, it remains undeniable that significantly fewer legal resources have been allocated to environmental protection in Ireland as compared to the UK, even when one takes into account the comparative sizes of the countries’ populations and land/sea areas.

72 Source http://www.npws.ie777/en/media/Media,6465,en.pdf. Accessed 07/02/2009

73 Hodas, D.R. (2008) Biodiversity and Climate Change Laws: A Failure to Communicate? In Jeffery, M.I., Firestone, J. and Bubna-Litic, K. (Eds.) Biodiversity, conservation, law + livelihoods: Bridging the North-South Divide. Cambridge University Press: Cambridge, UK: 383-399.

46