Background
A man complained to the Ombudsman that the Department of Agriculture, Food and the Marine (the Department) sought to recover over €25,000 from him following the flooding of his land in Kerry. The man had received the money through the Afforestation Grant and Premium Scheme to cover the cost of establishing a forest.
The Department inspected the man’s land and approved his grant in 2004. The forest was destroyed by severe flooding in 2009. When he realised the extent of the damage the man contacted the Department in 2010 looking for advice about what he should do. The Department stopped his payment and did not make a decision about how it was proceeding for nearly three years. In January 2013 the Department demanded repayment of the grant of over €25,000, in full, within one month.
Examination
The land is surrounded by canals which form part of a local drainage network. The local authority is responsible for maintaining the drains feeding this network. The local authority stopped draining the canals around 2009 because of damage caused by the floods. The local authority said that it could not maintain the local drainage network each year because of budget restrictions. The drains on the man’s land were satisfactory but could not work properly because the local drainage network was not being maintained.
The Department said that the reasons it demanded repayment were that:
- the trees had been removed by the man from the land
- the man had not said in his original application that his land was subject to flooding
- it considered that the man was aware of the risk of flooding and that it was his responsibility to comply with the conditions of the scheme
- it was unreasonable for the man to rely on the actions the local authority to comply with his obligations and that this was the reason why force majeure did not apply in this case.
The man appealed the Department’s decision and provided evidence that the flood destroyed the trees and caused damage to his land. The local authority confirmed that the severe rainfall, high tides and excessive amounts of material in the drainage channel had prevented proper drainage which was outside the man’s control. (Subsequently a Department official confirmed that the trees had been removed as a result of the flooding).
The Ombudsman discovered that the South Western Regional Fisheries Board had written to the Department in May 2004 advising it that part of the site may be subject to flooding. This was before the Department approved the grant in August 2004. The man told the Ombudsman that he had no knowledge of the Board’s report.
A Forestry Inspector from the Department had visited the man’s land in May 2013 and said that it was a case of force majeure. However this was overturned by the Department in December 2013. The Department defines force majeure as ‘circumstances outside the farmer's control which s/he could not have foreseen and which s/he, as a prudent farmer, took all reasonable precautions to avoid’. The Department said that circumstances which are accepted as constituting force majeure include ‘a severe natural disaster gravely affecting the holdings agricultural land’.
Outcome
The Ombudsman considered that the Department had granted the man's application in the knowledge that his land may be prone to flooding, and that it was now trying to hold the man responsible for something about which he was unaware and over which he had no control.
The Ombudsman asked the Department to review the man’s case, particularly with regard to the force majeure provision. The Ombudsman considered that the available evidence indicated a natural disaster that was outside the man’s control.
In the circumstances the Department agreed to review its decision and decided not to recover the amount of €25,000.
END
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