Second cross compliance case settled

UFU president, Ivor Ferguson, said it was a victory for all farmers and demonstrated the collective strength of the union.

“For us, it is a matter of principle,” said Mr Ferguson. “Our role is to defend our members against unfairness and in seeking and supporting these judicial reviews we aimed to protect the wider industry from harsh treatment for minor mistakes. The outcomes of both related judicial reviews will have a positive impact.”

The case related to an earlier judicial review taken against NIEA and DAERA on the definition of ‘intent’ for cross compliance breaches, involving Co Armagh farmer and former UFU president Ian Marshall. The UFU believed Mr Marshall was treated extremely harshly when a modest pollution incident led to the loss of thousands of pounds of income through CAP payments.

In the initial case, the judge found the original decision by DAERA was ‘unlawful’ and the UFU were awarded costs. However, to date DAERA have only paid £70,000 of the total £140,000 and continue to dispute the cost associated with the UFU’s specialist legal support. As part of the ruling, DAERA were also instructed to review Ian Marshall’s cross compliance breach.

Mr Ferguson continued: “The case was not about pollution or the scale of incident. We accept there is no acceptable level of pollution. The case was about whether NIEA/DAERA were right to effectively ignore the views of the independent external appeal panel which considered this was a negligent rather than intentional breach and had recommended accordingly.

“In that case, the court found in our favour on seven counts. The result was indisputable, as evidenced by DAERA’s decision not to appeal. We expected that Mr Marshall’s case would be reviewed and the original decision overturned. Shockingly, DAERA upheld their original decision. This was unacceptable and we had no other choice but to go back to court.”

Earlier this year, the court allowed a second judicial review to contest DAERA’s decision. The case has now been settled out of court.

Mr Ferguson added: “DAERA have consented to quash their decision in Mr Marshall’s case. They have accepted the views of the independent external panel that the cross compliance breach was negligent rather than intentional.”

As a result, Mr Marshall will now receive a payment adjustment for the 2012 and 2013 years of £43,000 plus £3,000 in interest. This represents the outstanding monies owed minus the revised penalty applied of £3,600. DAERA have also agreed to pay reasonable costs to the UFU, who provided just under £130,000 of financial support for this second case.

Explaining the UFU’s position, Mr Ferguson said: “With the first judicial review we sought to establish guidelines on the definition of cross compliance penalties. We were very disappointed with DAERA’s subsequent response in the Marshall case and our Executive Committee were very clear in deciding to support a second related judicial review on behalf of all farmers. It has also required substantial cost outlay on the Union’s part of around £270,000. But the outcome achieved has been to the benefit of our wider membership so it has been worth it.”

Commenting, a DAERA spokesperson said: “Following Mr Marshall’s application for leave to apply for judicial review, and the clarification that brought to the proposed challenge, the Department has reached agreement with Mr Marshall that his application for judicial review be granted on the following basis:

“The impugned determination was subject to a procedural irregularity in that the Applicant did not have, prior to the final decision being made, an opportunity to make submissions in relation to the legal test to be applied in determining his appeal, namely that set out in the case of Van Der Ham Case C-396/12 which was decided on 27th February 2014.

“The Department consented to its decision of 25th May 2017 being quashed accordingly and will now re-determine the appeal on the basis that the breach in the case was negligent rather than intentional.”