Elephant in the Room – From Clare Champion

October 28th, 2012

THE lack of adequate space for pedestrians crossing the existing bridge on a daily basis linking Killaloe and Ballina has been described as the “elephant in the room” in relation to the provision of a new river crossing and bypass.

Bill Morrissey, chartered civil engineer and commercial manager, who appeared on behalf of objectors, claimed the new Shannon Bridge Crossing wouldn’t do anything to resolve safety on the existing bridge for pedestrians, particularly those with buggies and children.

Despite the provision of a report from Michael Punch and Partners in 1996 about the feasibility of widening the bridge, he claimed during an oral hearing on Tuesday that Clare County Council had done nothing to address the problem since then.

Mr Morrissey predicted even if Clare County Council spent between €20 and €50 million on the new scheme, it would do nothing to improve the situation concerning pedestrians who would still use the existing bridge.

“This is the elephant in the room, ye missed it,” he declared.

Barrister Dermot Flanagan, who represents the council, pointed out the Punch Report was a historical document that outlined the situation as it existed in 1996 when the Habitats’ Directive was not in place.

There was no design in place for a new river crossing and no suggestion of a Killaloe Bypass.
While this report was referenced in the EIS, he felt it should be considered as background information.

Stating the developer had made provision for pedestrians in the EIS, Mr Flanagan said he would be guided by the inspector in terms of dealing with alternatives to the new crossing, which have already been dealt with in a previous Constraints Study.

Project manager Michael Conroy pointed out the route selection was examined in a study conducted by RPS Consultants.

Mr Morrissey said Mr Conroy couldn’t give any evidence concerning the route selection process, as RPS weren’t present.

Mr Flanagan stated a representative from RPS was available but it was decided he wasn’t required.

Mr Morrissey said he couldn’t understand why a decision was taken to locate the route for the Shannon Bridge Crossing through an SAC, a protected habitat and a residential area where international investors had spent large sums of money providing substantial homes with pleasure grounds and amenities.

“No one here can say why we are doing this,” he said.

Senior planning inspector, Stephen Fay, who is chairing the hearing, asked Mr Morrissey if he was suggesting an alternative or better route.

Mr Morrissey said if he was involved in the design of such a scheme, he would keep well away from residential areas and locations of environmental significance.

Mr Flanagan disagreed with Mr Morrissey’s analysis and noted issues relating to property rights could be dealt with under statutory compensation, while issues concerning the route selection were dealt within the EIS.

Acknowledging that all the council agents were professional people, Mr Morrissey expressed concern there was no one present at the hearing from Clare County Council management to deal with this “mistake”.

Mr Flanagan felt this comment, which he didn’t support, was not worthy of a response.

Mr Fay asked Mr Morrissey could he point out an alternative route or reasons why any route should be considered or dismissed.

Mr Morrissey said he would have provided a report in the EIS on various options within the CPO corridor, which was common practice.

Mr Flanagan stated this wasn’t always the case and noted the developer had provided an EIS on the chosen route.

According to a report completed by Michael Punch and Partners in 1996, a standalone new footbridge completely independent of the existing masonry bridge costing between €720,000 and €1.44 million could be located upstream or downstream of the existing bridge.

The consultants stressed their assessment didn’t purport to provide a detailed technical examination of the proposal and noted this would be the subject of a further report should it be warranted.

Shannon bridge Crossing and Killalo Bypass – From Nenagh Guardian

October 23rd, 2012

Oral hearing on Ballina-Killaloe bridge
(13/10/2012)

By Peter Gleeson
An oral hearing by An Bord Pleanala on plans for a new bridge over the Shannon at Ballina-Killaloe could last a number of weeks if objectors to the scheme are not dealt with in a meaningful way.
The claim was made on day one of the hearing in The Abbey Court Hotel in Nenagh on Monday by Richard Rae, who, along with John Crowley, are consultants for up to 70 people who have concerns/objections in relation to the scheme.
Clare County Council, as the lead local authority in the project, is seeking to acquire lands by compulsory purchase order to facilitate the construction of the new bridge downstream of the existing bridge. The latter is deemed too narrow for modern day traffic purposes.
The scheme includes plans to construct a bypass of the town of Killaloe and an upgrade of the R494 route linking Birdhill and Ballina.
In an opening statement at the hearing, Mr Rae said Clare County Council had refused to engage in a meaningful manner with his clients and those of Mr Crowley.
Mr Rae said the council had failed to respond until last week to detailed points submitted by him back in May of this year, aimed at assisting the local authority in furthering the project.
He said he and Mr Crowley were rejecting an offer made by the council on October 3rd last, which, he said, was “in effect asking us to act against the best interests of our clients and is coercion”.
“We are not prepared to accept a Clare County Council substandard design and lack of legal commitment,” said Mr Rae.
He said the standard required for the scheme should be the same standard as that which applied during the construction of the M7 through North Tipperary and the M8 through South Tipperary, “and all other national roads that we have been involved in”.
He said he and Mr Crowley would not be abiding by a request that they withdraw objections on behalf of their clients by Tuesday of this week.
“Even if Clare County Council were to offer us 30,000 pieces of silver per client, there will be no withdrawal of objections to meet the Clare County Council deadline,” said Mr Rae.
Mr Rae submitted that under the Danish system, the Irish way of dealing with compulsory purchase orders would be deemed to be fatally flawed, “because the system does not act in favour of the person impacted by a CPO”.
Mr Rae told the hearing that it would take up to two weeks for the oral hearing to deal with the submissions of his and Mr Crowley’s clients, if the Clare County Council did not fairly address their submissions. “We could be here for an awful long time.”
Stephen Kay, the chief planning inspector who is conducting the oral hearing on behalf of An Bord Pleanala, said there were a total of 86 objections to the scheme.
Peter Sweetman, a representative for a number of other objectors, said it was unacceptable that the Office of Public Works were not present at the hearing.
He described a submission made to the hearing by the National Roads Authority as “unintelligible” and said it, too, had a duty to be at the hearing, as did CIE who had land in the area of the scheme.
Mr Sweetman also said that certain documentation and transcripts that should have been made available to the inquiry were unavailable – a situation he referred to as “sloppy”.
Mr Kay said Clare County Council had made a commitment to make such documents available to the hearing and was prepared to facilitate people with copies. He said any concerns raised about the absence of the NRA, CIE and the OPW from hearing would be noted when evidence was being taken.
Barrister Michael O’Donnell, representing a number of objectors, said certain documentation pertaining to the environmental impact assessment would have to be made available by the council so that it could be meaningfully discussed. He said certain evidence would be prejudicial to his clients if specific documents were not made available, and it would not be appropriate to proceed with the hearing unless the material he requested was furnished.
Project manager of the proposed scheme, Michael Conroy, of Roughan O’Donovan Consulting Engineers, said a bypass of Killaloe was considered a necessary part of the scheme as it would assist in traffic reduction in Ballina-Killaloe, making the area more of an attractive place to live and visit.
He said a bypass would assist in the overall development potential of Killaloe and improve access to the area and to nearby towns such as Scariff and Tulla.
Mr Conroy said the existing narrow bridge over the Shannon was a protected structure and could not be widened or improved to accommodate present day traffic requirements. The proposed scheme would substantially reduce traffic congestion in the area.

Windfarms: Making the most of those welcome winds of change

August 30th, 2012

More than 600 land owners attended three recent IFA meetings on proposed wind energy projects in the midlands. These could prove lucractive for farmers but there are issues to be considered

A representative from an energy generation company comes into your yard talking about a possible annual rent of €18,000 per wind turbine for three turbines.

You are struggling and cannot wait to get signed up and get going. What are the issues?

Your land will generally be part of a larger block intended to be used as a wind farm.

The company promoting the wind farm needs to have a written commitment from all the landowners in order that the company can make an application for planning permission, and then to make the land available for the wind farm project should planning permission be granted.

Accordingly, you are asked to sign a document called an option agreement.

The option agreement states that for the payment of a fee of up to €1,500 or so, you will give the company the exclusive right to take perhaps a 20- to 30-year lease of a part of your farm if it so chooses at any time within the following period of perhaps five years.

The proposed lease is attached to the option agreement.

The option agreement deals with such things as:

1.The names of the parties;

2.The particulars of the land;

3.The option fee and period;

4.Restrictions on the use of the land (both the land retained as well as that intended to be leased by you during the option period);

5.What tests and surveys can be done by the company;

6.Your willingness to co-operate in planning applications;

7.Felling licence applications etc;

8.Responsibilities of each party;

9.The wind farm company’s contribution towards your professional costs and insurance;

10.You agree not to oppose any planning application by the company and there is no guarantee of a wind turbine.

The proposed lease attached to the option deals with such matters as the names of the parties, the land to be leased, use of that land, the rent, length of lease (generally about 30 years) and the conditions to be complied with by each side.

Such conditions cover a wide range of issues, including sufficient access and accommodation works (e.g. widening entrances, making new passageways, laying cables, construction of substations, storage buildings, masts, fencing).

The farmer can generally graze animals near the turbines and carry on as normal, but cannot do anything to interfere with the operation of the construction or ongoing maintenance of the wind farm or the windflow to the turbines.

The land owner must deal exclusively with that company as regards wind farming and there is often a confidentiality clause. There are clauses relating to dispute resolution and insurance.

So what must the land owner look out for?

Probably the primary matter is only to deal with a company you can trust and which has a track record in wind farm development.

Allied to that is how the project is to be financed and the conditions laid down by the lender.

It would help to be convinced if possible that the overall project has a realistic chance of success.

After that, you need advice from someone with experience in advising farmers in relation to these matters — preferably someone who knows both the wind electricity business and the agriculture business.

Options and leases will be drawn up by the wind farm developer’s solicitors, who may not be aware of all of the regulations with which farmers must comply, particularly in their dealings with the Departments of Agriculture and of the Environment and with their own banks.

Compliance with Single Farm Payment regulations, Disadvantaged Area Payments, REPS, AEOS and Afforestation Schemes can all be affected through the development of a wind farm on a farmer’s lands.

Payments to farmers under these schemes may also be affected.

Developers offer different lease payment systems which may or may not be indexed or linked to actual electricity sales.

Not all wind farm developments are straightforward and where a turbine or turbines must be shared between two or more farmers, a fair method of payment must be agreed between the participating farmers at the beginning to avoid bad feeling between neighbours for the following 20 or more years.

In many wind farm developments, developers will be pressing farmers to sign options and leases quickly.

A wind turbine or turbines on your land should be treated as an alternative enterprise which will improve the income on your farm. You and your neighbours should pool your resources to get the best possible agricultural, accountancy and legal advice to ensure a good return.

A united approach will always achieve better results than if each individual farmer fights his own battle.

Oliver Ryan-Purcell is a solicitor and can be contacted at 086-2532056 or at oliverjryanpurcell@gmail.com, while agricultural consultant David Walsh can be contacted at 086-8338329 or at d_walsh@eircom.net

Before embarking on a wind farm project, be sure to understand the various tax implications

August 30th, 2012

By Richard Rea, David Walsh & Oliver Ryan-Purcell

A number of taxation issues arise for landowners on entering into option agreements involving wind farms. These include:

A)Tax on payment under any option agreement;

B)Tax on rent under any lease agreement;

C)VAT on rent under any lease agreement;

D)Capital acquisitions tax (CAT) implications for gifts or inheritances of land leased to a wind farm company.

The option agreement

In the normal case, a landowner is asked to sign an ‘option agreement’, where in return for a payment, the landowner agrees to grant a lease on pre-arranged terms and during a pre-arranged period to a wind farm company, should that company decide to go ahead with the lease.

In addition, under an option agreement, the landowner is giving permission to a wind farm developer to enter on to the lands to carry out the necessary preliminary works, and to enable the developer to establish whether the lands are suitable and capable of establishing a wind farm.

The normal payment to the landowner for such an option would be up to €1,500 per turbine or thereabouts.

Tax aspect of option payment

For tax purposes the granting of such an option by the landowner would be regarded as disposing of a partial right on the lands. This could create a liability to capital gains tax (CGT) as a part disposal of an interest in the lands.

If the landowner is over 55 and meets other requirements, retirement relief under the CGT might apply.

Depending on how an option agreement is worded, the payment on foot of the option agreement might alternatively be regarded by Revenue as compensation for disturbance and thus be liable to income tax over the duration of the option agreement.

The lease

In the event that the wind farm developer exercises the option to take the lease within the period allowed in the option agreement, the lease agreement is then entered into between the landowner and the wind farm developer.

The income to landowners from such lease agreements relating to wind turbines is subject to income tax in the same manner as rental income from any other rental property. The level of income tax arising will depend on the landowner’s existing level of taxable income.

Farming capital allowances or pension payments cannot be set off against rental income. The tax-free exemption for the long-term leasing of farmland does not apply to the lease.

VAT

VAT will not arise on rental income from such lease agreements unless the landowner elects to be ‘vatable’ on that particular rental income. In these circumstances, the VAT rate would be 23pc.

In circumstances where the landowner is already registered for VAT, the VAT will not be payable on the income the landowner receives under the lease unless the landowner elects to be ‘vatable’ on that particular income.

Capital Acquisitions Tax

The major issue that arises on rental agreements involving wind turbines relates to capital acquisitions tax (CAT).

CAT is generally based on the market value of the property acquired.

If 80pc of the gross value of the property belonging to the beneficiary on and after the acquisition can be classified under the legislation as “agricultural property”, agricultural relief may apply.

However, when agricultural land is leased to a wind farm, it then becomes commercial property and cannot be classified as agricultural property for tax purposes.

In circumstances where the rental income from the lease is €15,000 per annum, the market value of the lease could be up to €150,000. Thus, the land leased to the wind farm developer is classified as commercial property and the beneficiary will not qualify for agricultural relief unless he/she complies with the 80pc rule.

Neither will it qualify for business relief under the same CAT legislation.

This is a trap that a landowner could quite easily fall into and, when it comes to transferring to the next generation, the beneficiary of the transfer needs to be aware of it.

Richard Rea is an agricultural consultant based in Co Tipperary. Mr Rea can be contacted at 087-2525302 or at info@reagroup.ie

A cheaper way of resolving disputes away from courts

August 8th, 2011

Regarding John Shirley’s article concerning exorbitant fees on page four of the Farming Independent of June 28, other problems can also beset litigation in the courts.

These include delay, lack of control by the parties, lack of availability of judges and uncertainty of outcome, not to mention the publicity and the stress on the parties.

There is an alternative and vastly cheaper means of dispute resolution known as alternative dispute resolution or ADR.

There are various types of ADR, including mediation.

While it’s not possible to outline all aspects of mediation in a short description, basically, it can be said that the mediator, who is generally specially trained and accredited and will be completely impartial, informs the parties of the process and organises a neutral venue agreeable to the parties with comfortable rooms for each side.

On the day, the mediator moves between the rooms and generally nudges each side towards resolution — only bringing such information from one side to the other as he or she is strictly authorised to do.

A stage is generally reached when the parties are brought together in one room with the mediator to iron out final details.

The whole procedure is completely voluntary, confidential, private and without prejudice and either side is completely free to leave if and whenever they wish.

The ground rules are sorted in advance in a written agreement to mediate. Contrary to the court process, the parties are in charge of the mediation process.

Nothing arising out of the mediation is binding until such time as a resolution is arrived at, committed to writing and signed. In most cases, it is vital that the parties would have independent legal advice before actually signing the mediation agreement.

The mediator is not an adviser or a judge and does not make decisions binding on the parties.

Most mediations are completed in a day – though often a long day.

The process is widely used in disputes involving wills, succession, the workplace, debts, title to property, neighbours, landlord and tenant, business and partnership problems and so on.

An apology is possible without compromising the legal position of the person giving it.

The cost of the mediator for the day, and for the necessary work beforehand, which might be around a few thousand euro (as opposed to possibly hundreds of thousands in the court process) is divided between the parties.

Furthermore, a consequence of the resolution is often the resumption of good relationships between the parties.

Actually, the process is very useful also at the stage where there is just a disagreement or even different viewpoints, as opposed to a dispute as such. In general, as you can imagine, the sooner the process is engaged in, the better.

For the process to work, both sides have to want it to work.

The process is being actively encouraged by both judges and the Government as a means of cutting costs to the State — as well as being of great benefit to society generally.

Oliver Ryan-Purcell is an accredited mediator and consultant solicitor. He recently joined the new mediation division of the Co Tipperary-based Rea Group consultants

- Oliver Ryan-Purcell

Reckless Lending briefing organized by Rea Group in Athlone on Friday, 14/01/2011.

January 27th, 2011
Reckless Lending briefing organized by Rea Group in Athlone on Friday, 14/01/2011.

Reckless Lending briefing organized by Rea Group in Athlone on Friday, 14/01/2011.

Apple Farm looks for potential to increase juice capabilities

December 21st, 2010

Irish Farmers Journal

By Peter Young

Apple Farm looks for potential to increase juice capabilities

Five apples out of every 100 eaten in this country are Irish. Yes, just five. I had to ask Con Traas to repeat that figure when he first told me. I had always assumed that we grew a lot more apples than that in Ireland.

I know some of the reason is down to seasonality but, still, it seems very, very low. The figure is even more startling when put in context that the retail value of apples sold in Ireland is around €121m.

Simple maths put the value of Irish apples at just €6m retail. There must be potential to increase this.

Con Traas of the Apple Farm believes there is. A member of the Irish Apple Growers Association, he told me there are about 40 commercial apple growers in the country.

About half of these are small-scale with just two to five acres of orchards. Con has increased the orchards on his farm to 32 acres and plans to increase this further.

Initially, the apples were sold locally, with a lot sold through their farm shop.

To add value, they started to look into processing apples into juice in 1995 and got a LEADER grant for about £10,000.

”It was a lot of money at the time,” remembered Con.

Investment has continued with new cold stores put in to store the apples for longer periods on the farm, extending the season that customers can get his Irish apples.

The latest in investment is a new processing room for juicing apples.

Focused on increasing efficiency and cutting production costs, Con is planning to spend €300,000 on the latest project.

He was approved for a 35% grant under the Department of Agriculture scheme for processing of agricultural products.

The business now employs 10 people full-time, with up to 28 local people working during the busy picking season.


No surrender to bank, says Easkey landowner

October 6th, 2010

Western People

AN EASKEY father and son are battling the banks in a bid to save their farm.

John Devaney, aged 64, and his son Jonathan, aged 33, from Templeview, Easkey, have moved to prevent Bank of Ireland from taking 35 acres of land they bought in Killeenduff 11 years ago.

On Monday there was a stand-off between the Devaneys and their supporters, as gardaí and bailiffs were brought in to seize the land. Signs erected by the Devaneys – warning “land grabbers” to stay away – were torn down as tensions heightened. Baliffs were prevented from entering the lands after the Devaneys blocked an access gate with a digger and boulders.

In 1999, the Devaneys, who are dairy farmers, received a Bank of Ireland loan to buy 35 acres of land. The family are understood to owe the bank in the region of €260,000.

They accept they cannot pay their debts to the bank except by way of asset disposal. But they say that the bank refused a viable alternative which would enable them to reestablish their dairy farm, and claim that the bank now refuses to even speak with them.

The father and son received a letter on September 28 stating that a buyer for the land had been found and a sale agreed. But the Devaneys and their legal representatives argue that the tender received was far less than the debt owed. The family say they offered Bank of Ireland a plot of land of 38.5 acres which would enable them to keep farming but the bank refused.

“It’s time to rebel and stand up for yourself. All we’re asking for is a bit of fair play,” said Jonathan Devaney.

“It’s another case of one rule for the big boys and another rule for the small fellas,” his father John added. Richard Rea, of Rea Property and Debt Resolution, who is acting for the Devaneys, said the bank has refused to meet with him and said its actions “will leave Jonathan’s future as a farmer on the scrapheap”.

A spokeswoman for Bank of Ireland told the Western People it does not comment on individual cases.

Tense stand-off between Sligo farmer and bank

October 5th, 2010

Irish Independant

Caitriona Murphy

A tense stand off has developed between a Co Sligo farmer, Gardaí and bailiffs after the Bank of Ireland sold 35ac of a 96ac farm to an unknown buyer for an undisclosed sum.

John Devaney (64) and his son Jonathan (33), from Templeview, Easkey, Co Sligo, have refused to vacate the land, for which a possession order has been granted, because they claim its loss will break up their milking platform and render it impossible to re-establish a dairy enterprise.

The Devaneys have accepted that the sale of their assets is necessary to resolve their debt with the bank. However, they claim they offered to sell an alternative 38.5ac block and milk quota to settle their debt.

They say the impact of Bank of Ireland’s action is that they would have two unconnected holdings of 18ac and 38.5ac.

The pair have accused the bank of being heavy-handed, failing to engage with the Devaneys’ agent, agricultural consultant Richard Rea, and failing in its duty of care.

Mr Rea requested a meeting with the solicitors for the Bank of Ireland but this never took place because pre-conditions were sought.

He claimed that he also offered the sale of another 38.5ac and quota, together with the goodwill of the Devaney family, instead of the 35ac that the possession order applied to — but this was refused.

The Devaneys mounted a 24-hour watch on the land over the weekend after the bank wrote to Mr Rea, warning that if the cattle were still on the land by yesterday it would be necessary to remove the cattle to a pound in Cavan using wranglers. They were warned that they would be liable for all expenses charged by the pound, amounting to around €35 per animal a day.

As we went to press yesterday, the Gardaí and bailiffs had withdrawn from seeking to secure possession.

When contacted by the Farming Independent, a Bank of Ireland spokesperson said it was the bank’s policy not to discuss individual customer cases.

“We work closely with customers who encounter financial difficulties. Our most experienced bankers work to help and support these customers on an ongoing basis,” said the spokesperson.

Mediation cuts dispute resolution costs, says Chief Justice

September 16th, 2010

Irish Times, September 16 2010

CAROL COULTER Legal Affairs Editor

LEGAL AID BOARD CONFERENCE: THE GOVERNMENT should foster and promote a professional mediation service and alter the perception of the courts as the first and only resort for dispute resolution, the Chief Justice has said.

Mr Justice John Murray told the 30th anniversary conference of the Legal Aid Board that this would not require major expenditure, and would reduce the overall cost of dispute resolution.

He said it was particularly appropriate in family law given that litigation can exacerbate the existing difficulties arising from a breakdown in family relationships.

“Given the State’s recognition of the family as a social unit of fundamental importance in society, it is essential that it ensures that there are systems and resources in place to address and resolve the serious issues to which family breakdowns so often give rise,” he said. “Mediation in particular is a vital tool in addressing family disputes, particularly where the welfare and future of children is at stake.”

He pointed to UK research showing the cost in legal aid fees of mediating family disputes was half that of litigating them. Given the pressure on Legal Aid Board and court resources, the need to encourage and invest in use of alternative dispute resolution (ADR) as a primary option for citizens where it can be effective has never been more pressing, he said.

Yet mediation and other forms of ADR remain on the margins of family law and civil law generally, and this would continue unless the State began to foster a culture of ADR with vigour and purpose.

President McAleese also urged greater use of ADR to resolve legal issues in a more humane way.

Legal Aid Board chairwoman Anne Colley said the cost associated with providing legal aid could be more than offset by its prevention of further problems that imposed a heavier cost on society.

She pointed to research in other jurisdictions which showed the business case for legal aid. Research here and in other jurisdictions showed those with legal problems often reported adverse consequences including ill-health, stress-related problems, loss of income or employment, violence or damage to property, breakdown of relationships, or loss of one’s home.

Ministry of Justice economists in the UK estimated that, over a three-and-a-half-year period, unresolved law-related problems cost individuals and the public purse £13 billion (€15.6 billion).

Other UK research showed savings could range from £2.34 in the area of housing for every £1 spent on legal aid to £8.80 in the area of benefits.

“It is clear that failure to resolve the more serious problems in a speedy and equitable manner creates considerable adverse consequences both for the individuals involved, their families, their working and social lives and ultimately the State,” Ms Colley said.

In the future, she said, there would be a move in appropriate cases away from the adversarial court environment towards ADR.