Department demanded return of €25,000 after farmer’s land flooded

A farmer faced a demand from the Department of Agriculture to repay a €25,000 forestry grant after his land was flooded and his crop destroyed.

The Kerry-based farmer had received the money in 2004 through the Afforestation Grant and Premium Scheme to cover the cost of establishing a forest.

It was destroyed by severe flooding in 2009.

When he realised the extent of the damage, the man contacted the department in 2010 to seek its advice, a report by the Ombudsman Peter Tyndall said.

“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.”

The man’s land was surrounded by canals which form part of a local drainage network. The local authority is responsible for maintaining the drains feeding this network. But the local authority stopped draining the canals in about 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 report said.

The department said it had demanded repayment because the trees had been removed from the land by the man and he had not said in his original application that his land was subject to flooding.

It also considered that he was aware of the risk of flooding and that it was his responsibility to comply with the conditions of the grant scheme.

It considered it “unreasonable” for the man to rely on the actions the local authority to comply with his obligations.

The farmer appealed the department’s decision and provided evidence that the flood had 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,” the Ombudsman said.

It said a department official subsequently confirmed that the trees had been removed as a result of the flooding.

The Ombudsman also discovered 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.”

The department also rejected the report of a forestry inspector who visited the land in 2013 and said the flooding had been a case of force majeure.

The Ombudsman found 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.

It 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”.

It said that in the circumstances the department agreed to review its decision and decided not to recover the amount of €25,000.