The High Court has ordered that Michael O’Connor receive the 2010 single payment subsidy for 167 hectares found to qualify, while denying payment for a disputed commonage parcel. The court left any claim for damages or interest, and the question of costs, open for further submissions.
Mr Justice Michael White delivered judgment on 2 June 2016 in a statutory appeal on a point of law under section 11 of the Agricultural Appeals Act 2001. The appeal concerned an appeals officer’s 20 April 2012 decision on Mr O’Connor’s 2010 subsidy application. The court said a later review by the Agricultural Appeals Office director was not properly before it.
The Department had rejected the commonage parcel, which Mr O’Connor had declared as rented, and made deductions on other parcels. The resulting area over-declaration led to rejection of the 2010 single payment. The Department also imposed a 5% cross-compliance sanction relating to cattle identification and registration. During an administrative review, it added a further penalty on the basis that the commonage had been included to obtain an advantage. The judge noted that Mr O’Connor had no opportunity to address that additional penalty before it was imposed.
The court did not decide that the commonage qualified for subsidy. It said there was considerable evidence that it should not have been included and found no legal error in the appeals officer’s treatment of the substantive eligibility issue. It also upheld the 5% cross-compliance sanction, finding that Mr O’Connor had an opportunity to respond to the cattle-related findings and that the remedial action notice did not prevent a lawful sanction.
However, the court found serious procedural flaws in the inspections concerning the commonage. The documents supplied did not constitute the required control report, and the farmer was not given the opportunity to sign a report or respond to findings from the August 2010 inspections before the Department concluded that the claimed area triggered a penalty. The judge stressed that unannounced inspections themselves were permissible; the issue was the failure to give an opportunity to address the findings.
The appeals officer also erred in law by failing to address legal submissions about notice, the regulations and fair procedures in the written determination. The judge said remitting the matter to the appeals officer would serve no purpose given the procedural flaws. Instead, he ordered payment for the land that qualified—identified in the judgment as 167 hectares—but no payment for the commonage. The 5% sanction remains payable. Damages, interest and costs were not determined in this judgment.