Court of Appeal directs farmer's case over SAC land to High Court

A Donegal farmer who is representing himself will have his case around a special area of conservation (SAC) heard in the High Court.

Harry McHugh made an appeal to the Court of Appeal after his original case was struck out of the High Court as his pleadings "were verbose to the point of being an abuse of process" and his case was “bound to fail”, Justice Nolan said.

McHugh’s uncle was the owner of lands in Cashelgolan, Portnoo, Co Donegal, which were part of lands that were initially identified as a candidate SAC in March 1997.

McHugh became the registered owner of the lands after his uncle’s death in 2002.

Then in January 2003, he was notified that his lands might be included in the proposed SAC and, in December 2004, the lands were adopted by the European Commission as a site of community interest (SCI) under the directive.

Forestry

During the course of his long engagement with the Department of Environment, Heritage and Local Government in relation to the designation, McHugh made an application in 2006 for permission to plant forestry on his lands that form part of the SAC, which the Minister refused.

That refusal was based on the fact that the proposed forestry would adversely affect a significant area of the SAC.

McHugh is now seeking damages for alleged loss and damage caused to him by the SAC designation, mainly based on the profits he would allegedly have earned had he been permitted to plant forestry.

His complaints fall into the following categories: the failure to approve his forestry application; the failure to properly engage with him in relation to the appeals process; the failure to establish that the species and/or habitats being protected were in fact on his land; the failure to establish proper procedures; and a “very ill defined” claim in respect of the allegedly defective transposition of the habitats directive.

Justice Hyland said that due to the complexity of the case, she advised that McHugh should consider hiring a legal representative.

“Because the appellant represents himself, it is difficult to extract from his very long and unwieldy pleadings precisely what is the basis for his alleged entitlement to damages.

“He would be well advised to engage legal representatives, as he did previously, given the complexity of the claim he seeks to make.”

Struck out

McHugh has two other sets of proceedings that the respondents assert are so closely linked to the present case that these proceedings should be struck out on the basis of double recovery.

The first is a set of judicial review proceedings to refer his claim for compensation from the Minister to an arbitrator appointed by the Land Values Reference Committee.

The arbitrator, Paul Good, concluded that he did not have jurisdiction to deal with the matter and adjourned the case.

McHugh sought to appeal this decision and make amendments. However, the High Court refused leave to amend on 20 February 2025.

The grounds made to justify a strike out in this case are that the claims made by McHugh are incorrect and/or misconceived statements of the law.

“The threshold is a high one and a court should not dismiss a case unless it is clear that it will not succeed. The jurisdiction to strike out proceedings is to be used sparingly in clearcut cases,” said Justice Hyland.

Compulsory purchase order

The appellant argued that the designation as a candidate SAC involves compulsory acquisition, for which he must be compensated. He pleaded that the Minister neglected to pay any form of compensation for taking full legal possession and confiscating 86ha of his land.

However, Justice Hyland found that any claim based on the lands having been compulsorily acquired is bound to fail.

“His lands have not been acquired, either on a compulsory basis or in any other way. They remain within his ownership.

“Thus, I am satisfied that the pleas in respect of the land having been acquired are mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward.”

Judgement

The judge found that McHugh was entitled to continue with the claim made that his property rights have been affected by the designation.

“It will be for the trial judge to consider the extent, if any, of the impact on his property rights of designation and the legal consequences, if any, of any such impact.

“This argument cannot be treated as one that is bound to fail at this stage of the proceedings.”

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