Challenge SAC designation?

cnocbui

I own a property on which a SAC - Special Area of Conservation - was imposed. I believe an error was made in 1997 when the designation was made and a functioning house and it's necessary infrastructure was included. I wasn't resident in the country at the time so wasn't in the loop or in a position to challege or object to the designation.

A SAC and the maintainance and upkeep of a house are entirely incompatible. I think the legislation intentionally excluded a mechanism of appeal so what course of action would be possible to rectify a mistake made by the planners who failed to identify the existence of the house and included it in error?

I believe this to be the case having discussed this with someone who said they had never heard of a house being included within a SAC.

Peregrinus

When lands are being proposed for inclusion in an SAC there is a consultation process which involves wwritten notification to affected landowners, the provision of an information pack which includes (among other things) a map of the proposed SAC and details of a process for appealing against the proposal, advertisements in local newspapers, etc.

You say that because you were out of the country at the time you weren't "in the loop or in a position to challege or object to the designation". Do you mean you never got any notification and were unaware of the proposal, or at least unaware that it might include your property? Or that, because you were abroad, it was too difficult for you to engage with the process?

SACs are set by legislation - the Minister makes a statutory instrument designating each SAC. It's not like an administrative process where you can challenge a decision made by (say) a planning authority on the grounds that they have acted unreasonably, or failed to consider relevant matters, or whatever. The courts treat legislation with a lot more respect than they do adminstrative decisions; you can really only challenge a the statutory intrument that designates your property as part of an SAC if you can show that the Minister had no power to designate your property, or that he failed to comply with a statutory condition that had to be satisfied before he could make the order. For example, if the legislation requires the Minister to to consult affected landowners before making the designation, and if he never consulted you, you might argue that the designation is simply invalid. (Hence the importance of the question, were you not consulsted, or did you not respond?)

If you're thinking of going down that road, you're going to need a solicitor and a bucket of money. You're not just challenging the inclusion of your property in the SAC; you're challenging the validity of the statutory instrument which designates the SAC. If you succeed, there is no SAC; there never has been. The Department will fight this hard.

There is another route. If it is policy not to include houses in an SAC you might be able to make representations saying that your house was included in error, that you are adversely affected by this error, and the the Minister should make amending regulations varying the SAC so as to exclude your house. If the policy is as you think it is they may be receptive to this argument, and if you were never consulted in the first place this might make them more receptive.

cnocbui

Many thanks for your helpful and informative reply.

I didn't get the notification in 1997, I was living in Australia, and moved to Ireland in late Dec 1997. The only way the Irish government could have found my correct postal address would have been if someone had done some detective work via the register of deeds and only if that records the names of solicitors who deal with matters.

I am quite dispondent. I shall try and find out if there was a policy not to include houses and see if I can try that route.

The situation is ridiculous. There are actual real pressing safety issues and things needing to be done to preserve the integrityof the property and it's infrastructure, which are impractical under the nonsense of the SAC provisions.

The house is accessed by a long road that passes through some woods my Great Grandfather planted. I can't so much as touch a leaf.

There is a large tree that has been gradually leaning further and further over the access road over the years due to very shallow roots and soil. It would be impossible for a fire tender or ambulance to reach the house as things currently stand.

The power lines to the house pass through some trees near the house and the branches of at least two are touching the lines, but can't be dealt with 'legally'. There are also issues with scrub encroaching the house being a particular fire hazard due to a local firebug setting grass fires down the years, one of which got within 100m of the house on one occasion and might have eaasily continued through the encroaching trees and scrub and burnt the house down, which was built in 1893.

There are other issues relating to maintainance of the septic system and water supply, all of which are prevented by the SAC. It just is not practical to go begging to a government department to ask their permission every time you 'need' to do something, let alone 'want'. I have heard that you have to pay an ecologist to compile a report on everythig you want to do and approach NPWS with. Again, financially and time-wise, none of these things are practical.

cnocbui

Next questions.

Can I make an FOI request concerning the departments assesment and actions regarding my property?

I would be seeking to know if the department had a policy in terms of inclusion of habitable houses, and if so, what it is/was?

Is/was the department aware of who the owners are?

What steps were taken to contact the owner and inform them of the pending imposition of the SAC and what was the address the department sent the notification to?

Does the statute of limitations apply to breaches of the constitution?

With this I am meaning that the state effectively took ownership of all the trees on the property without compensation, many of which my great grandfather planted.

The state has greater say over the property, and all on it, including my house, than I do. They should have acquired it via CPO, but they imposed this sort of limbo where I remain the titular owner but the state grants itself a majority proportion of the rights normally associated with owning something, without any compensation.