December 10th, 2009
At a sitting of the District Court held at Castlecomer on 16th November 2009, Mr. Tom Brennan with an address at Massford, Castlecomer, Co. Kilkenny was prosecuted by the Southern Regional Fisheries Board, following investigations into a report received concerning discolouration and turbidity which was visible in the main channel of the River Dinin over approximately 5 kilometres of the river between Massford Bridge and Castlecomer on Saturday 3rd January 2009. Mr. Patrick Kilfeather Senior Fisheries Environmental Officer with the Board told Judge William Harnett that following receipt of a complaint, he inspected the Dinin River and found that excavation works had been carried out upstream of Massford Bridge in the townlands of Moneenroe and Clogh. In reply to questions put to him, Mr. Kilfeather told the court that Mr. Brennan had engaged a contractor to excavate the river channel in an attempt to stabilise the bank alongside his lands, as it appeared erosion was occurring. The work had been carried out in January 2009, which Mr. Kilfeather explained to the Court was during the annual close season, a period during which there is a strict prohibition in law on the carrying out of any instream works so as to ensure that spawning and reproduction of fish is not interfered with. Photographic evidence was presented to the Court by the Fisheries Board which showed that the river bed bounding Mr. Brennans property had been severely impacted as a result of the excavations works, and in addition, considerable silting had taken place downstream.
Mr. Michael Lanigan Solicitor representing Mr. Brennan told the Court that his client who is a teacher very much regretted what had happened, and had perhaps acted unwisely on the advice of a contractor. His client now realised that he should have consulted with the Fisheries Board, and carried out the works during the summer period under the Boards guidance and direction. Mr. Lanigan said his client was pleading in the matter, and had already made payment to discharge the Boards legal costs.
In passing judgement, Judge Harnett noted from the photographic evidence that the works carried out by Mr. Brennan were likely to result in further erosion in periods of high flow, and in response to questioning from the Judge, Mr. Kilfeather confirmed that such bank reinforcement works as were required should have entailed the use of rock armour which could have been installed during the summer period under the Boards guidance. Mr Kilfeather confirmed to the Court that Mr. Brennan had been fully cooperative with him during his investigations. He additionally confirmed that the River Dinin downstream of Mr. Brennans property contained a diverse fish population, including large numbers of salmon.
Having heard the evidence, Judge Harnett imposed a fine of €450 on Mr. Brennan, and made an order directing that he discharge the Boards investigation expenses of €1,028.08. He allowed the defendant 90 days to pay with 45 days imprisonment in default of payment. It was confirmed to the Court by Mr. Peter T. Reilly Solicitor for the Fisheries Board, that Mr. Brennan had already discharged the Boards legal fees of €1,162. 10.
Commenting on the circumstance of the prosecution, Mr. Kilfeather on behalf of the Fisheries Board said that there is a prohibition under the Fisheries Acts from interfering with any spawning bed, bank or shallow of a river, or for obstructing or disturbing fish. In limited circumstance where instream works are necessary, these may, after consultation and agreement with the Board where the waters in question are not part of a special area of conservation, take place during the open season being the period between July and September inclusive. Mr. Kilfeather also said that this is the third such prosecution for an offence of this nature which had been before the Courts in recent weeks, and in each instance, significant penalties were imposed with costs and expenses being awarded to the Board. Further cases are he said due shortly before the Courts. Mr. Kilfeather also said that the Board was seeking the assistance and cooperation of farmers and landowners as the primary custodians of the natural environment, not to engage in works likely to have effects on the fisheries and aquatic environment. He said that in circumstances where works were necessary to protect bank areas and minimise erosion, contact should be made with the Fisheries Board where advice will be readily forthcoming, and where as far as possible, land owners will be permitted to carry out necessary works under supervision. In this regard Mr. Kilfeather added he wished particularly to acknowledge the many farmers and landowners who had and continue to make contact with the Board to ensure that necessary works which they require to undertake can be done in a fish friendly manner at the appropriate time of year. He also called on contractors not to carry out any works in or bordering rivers and streams without prior approval, and stressed that penalties for unauthorised instream works under the Fisheries Acts are due to significantly increase under legislation currently before the Dail.