Planning Cases

FIE has written to Environment Minister Martin Cullen challenging his Department's use of unauthorised outboard billboards for its new Race Against Waste Campaign.

One of these is on the grounds of Government offices in Waterford. Another is on the N11 from Arklow to Gorey when advertising billboards on National Primary and Secondary Roads outside speed limits have been long accepted as a distraction to motorists and a traffic hazard. Others, such as the one on Dublin's North Circular Road, have aggressive framing and lighting that require planning permission in themselves. Read the letter and our Press Release.

FIE has requested the Department to provide a complete list of the location and legal and planning permission status of all of the sites used in the waste advertising campaign. We are also requesting them to investigate the extent to which continuing unauthorised billboards is the result of deficiencies in planning legislation or lack resources available to local authorities to carry out enforcement.

The scale of unauthorised advertising structures is one of the more visible manifestations of Ireland's lax approach to planning enforcement, of which the extent of quarries and dumps are the most serious. Unauthorised advertising is just a very visible symbol of the Department of the Environments failure to require local authorities to comply with the Planning Acts.





Martin Cullen TD
Minister for the Environment Heritage and Local Government,

Dear Minister,

We fully support public information campaigns on waste awareness and reduction.

However In initiating the current outdoor advertising campaign your Department failed to ensure that the sites used have full legal and planning permission.
The fact is that the majority of outdoor advertising sites in Ireland are unauthorised because the structures have been erected without planning permission, or reframed, given new lighting fixtures or turned into tri -vision or triple image signs without the required planning permission. This applies to locations even where an original sign might have been in place before the 1963 Planning Act came into place, and in some cases even when a later permission was granted.

In many cases the erection of unauthorised signs has been allowed by Local Authorities to be maintained in place after the five (and now seven) year statute of limitation period for taking legal enforcement for removal.

However passing of the statute of limitations enforcement period does not provide validation of legal status, or entitlement to carry out further alterations and development. It is also entirely inappropriate that any Government Department or other body use such sites, especially the Department which represents the interests of the environment.

The scale of unauthorised advertising structures is one of the more visible manifestations of Ireland's lax approach to planning enforcement, of which the extent of quarries and dumps are the most serious. Unauthorised advertising is just a very visible symbol of the Department of the Environments failure to require local authorities to comply with the Planning Acts.

Advertising structures are not just an environmental blight disfiguring rural landscapes and Protected Structures or their settings, or streets in cities, towns and villages. More seriously advertising billboards on National Primary and Secondary Roads outside speed limits have been long accepted as a distraction to motorists and a traffic hazard. This includes an unauthorised site now in use by the Department of the Environment Heritage and Local Government on the N11 from Arklow to Gorey.

Friends of the Irish Environment is making a separate request to your Department to provide a complete list of the location and legal and planning permission status of all of the sites used in the waste advertising campaign.

In this letter, we are now requesting your intervention to:

1. Remove your Department's advertising on all sites which have been erected or altered without planning permission forthwith and relocate to locations which have full legal and planning permission status.

2. Initiate an enquiry as to how the use by your Department or its agents permitted the use of unauthorised advertising structures.

3 Investigate why illegality is so prevalent over so many categories of development and determine the extent to which this is the result of either deficiencies in planning legislation or resources available to local authorities to carry out enforcement or mal-administration and potential corruption affecting local authorities in carrying out enforcement action.

Yours sincerely,

Friends of the Irish Environment
Ms. Emilly O'Reilly, Ombudsman.
18 Lower Leeson Street,
Dublin 2.
28 January, 2004


Re: 'Reasonable Charge' for copying documents from Planning Files under the Planning Act 2000.

Inconsistencies between local authorities.

Inconsistencies in EU and Irish legislative rights
Dear Ombudsman;

We are a network of environmentally concerned individuals who frequently have recourse to Local Authority planning files as part of our voluntary work on behalf of the public. We have a specific interest in European legislation in regard to citizen's rights and the environment.

We wish to raise with you the above two issues which are detailed in Annex I & II and would be grateful for your response.

Yours, etc.,

Tony Lowes

Annex I

Inconsistencies between local authorities charges for copies of A4 sheets on planning files


On Wednesday, January 21 our Inspector attended at the offices of the Kerry County Council Planning Authority and marked 72 sheets for copying.

The administrative officer informed him that the charge per page was €1 [one euro].

As a result, in order to stay within our budget guidelines, our Inspector reduced his request to 20 sheets. This ,means that should we be required to give sight of documents on the file to a third party, we would be unable to do so.

Our Inspector enquired on what grounds such a charge could be called a 'reasonable charge' as specified by the legislation. The administrator crossed his arms and said 'When I finish with them, that's a reasonable charge.'

The documents were retuned uncollated as a rough bundle within minutes. We are not satisfied with this explanation for the charge.

May we point out that the photocopy charge imposed by the neighbouring local authority, Cork County Council, would have meant that the same sum would have purchased 200 sheets of photocopying? The Cork charge of 10c a sheet is a reasonable charge.

We do not feel that €1 euro a sheet is a reasonable charge.

We understand that you are considering these fees at the moment on a national basis. Given the disparity across the county bounds, it occurred to us that it would be interesting to determine the charges levied by Cork City Council itself and in that regard telephoned Cork City Council to determine their interpretation of a reasonable charge.

They have a minimum charge of 10 euros, so a 4 page decision with conditions would cost €2.50 a page. When we enquired as to how this could be a 'reasonable charge', they informed us that all they could do was tell me the charge.

We do not consider this to be an adequate explanation of how such a fee can be a 'reasonable charge.'


Annex II

Irish and European legislation inconsistencies

We are aware that under the Freedom of Information Act the charge is based on two considerations.

(a) the estimated cost of the search for and retrieval of the record concerned, and

(b) the estimated cost of any copy of the record made by the public body concerned for the requester concerned

As you are aware, this provision became a precondition of supplying any information in the recent amendment with regard to fees in Section 47 of the Principle Act which introduced two subsections under subsection (6):

'(6A)(a) A fee of such amount (if any) as may be prescribed shall be charged by the public body concerned and paid by the requestor or, as the case may be, the applicant, concerned to the body in respect of a request under section 7 or an application under section 14 or 34.

(b) A fee under this subsection shall be paid at the time of the making of the request or application concerned and, if it is not so paid, the head concerned or, as the case may be, the Commission shall refuse to accept the request or application, and it shall be deemed, for the purposes of this Act, not to have been made.'

However under the European Directive Access to Information on the Environment, 'public authorities are required to make available information relating to the environment to any natural or legal person at his request'.

There is no provision for fees in this regard and so public bodies are confined making a charge only for copying the information, and such charge may not exceed a 'reasonable cost'.

In relation to information sought from public authorities on the environment, does the Irish legislation ensure that citizens have their full rights under the European Directive if administrative time used in making the information available is used as any part of the 'reasonable charge'?

We do not think so


____________________________________




2 February: FIE has asked the Ombudsman, Ms. Emilly O'Reilly, to investigate the 'wild variations' in the charges applied by planning authorities for copies of documents on planning files. Further, FIE has asked the Ombudsman to ensure that when information sought from any state authority is about the environment, no charge is made for search and retrieval of documents.

Read
OUR LETTER
and our PRESS RELEASE.
2 February: FIE has asked the Ombudsman, Ms. Emilly O'Reilly, to investigate the 'wild variations' in the charges applied by planning authorities for copies of documents on planning files. Further, FIE has asked the Ombudsman to ensure that when information sought from any state authority is about the environment, no charge is made for search and retrieval of documents.

Read
OUR LETTER
and our PRESS RELEASE.
The letter to the Development Applications Unit of the Department of the Environment.
Development Application Unit,
Department of Environment,
7 Ely Place,
Dublin,
23 January, 2004 Re: DAS, 2003, KE, 03/1622


Development at Hog's Head, Waterville, County Kerry:

Permission to retain and complete coastal erosion protection works, reinstatement of access cut to cliff face, etc.

Dear Sirs;

We have visited the subject site and examined the files relevant to this development on behalf of local residents and note your Department's concerns on file.

In this regard, may we draw your attention to certain documents in the files held by the planning authority which we believe are of relevance to your concerns?

These concerns are detailed in the Annex to this letter and relate to coastal reinforcement, archaeological heritage, the acceptance of commencement notices before planning conditions have been complied with, and the problems apparent in the current approach of the regulatory bodies to the proper planning and development of this important site.

While these all issues require different disciplines for their resolutions, we could find only one file reference number on your correspondence and would be grateful if you copied the attached Annex to the relevant officers.

Yours, etc.,

Tony Lowes


ANNEX

1. Coastal Reinforcement Works.

We note that the developer has produced no evidence to support the extensive 800 metre coastal reinforcement that has taken place.

In fact, the applicant's agent informed the local authority in their submission dated April 2003 and submitted to the Planning Authority on 6 June, 2003 that:

'Historical rates of erosion of this section of the coastline have not been assessed as the client has already identified them as being significant and detrimental to his enterprise. The coastal protection work would not have been put in place if a problem did not exist and from examination of the site evidence of erosion can be seen." [Hydraulics and Maritime Research Centre, UCC]

However a Report by O'Connor Construction Services dated 3 October 2003 and received by the planning authority on 10 December 2003 on the drainage aspects of the proposals shows the erosion between the 1896 Ordinance Survey Map and a survey taken in 1998.

The total erosion over this 100 year period is calculated as 3340 square metres and the attached map indicates that almost all of this occurs within 150 metres of the northern boundary of the site.

The suggestion that an 800 metre road is required for coastal reinforcement at this location is not sustained by an examination of the documentation on the file.

In fact, the unauthorised breach of the cliff is in itself is of a scale and magnitude that quite overwhelms anything that has occurred in the last 100 years. It is our understanding that the construction that has taken place allegedly for coastal protection is in a fact the foundation for a coastal road intended to extend the development of the amenities connected with the proposed golf course.


2. Archaeology Conservation Zones

While we were unable to assess the entire site from public property, we were greatly concerned during our inspection of the site to find that the national monuments, including the three standing stones, are inadequately fenced, giving an archaeological conservation zone of less than 5 metres in any direction.

This is wholly inadequate, especially in view of the richness of the archaeological heritage on the site detailed in the original EIS and the substantial and unfinished ground movement, including the continuing importation of building spoils which were not included in the project description in the original EIA.

In fact, we might suggest that you do not rely on the Archaeological Assessment included in the current file [03/1622] which refers only to one national monument, but rather refer to the Assessment attached to the original EIS [175/99] which states that 'the proposed development includes five registered national monuments protected under the National Monuments Legislation (AP3). The development site also includes one previously unrecorded site."

The EIS lists 6 Registered Sites in Appendix I and 14 Adjacent Sites in Appendix 2.

In both the 'Cultural heritage' and in the 'Material Assets' sections of the original EIS, the applicant professes he 'accepts in total Ms. Cleary's report and recommendations in relation to the protection of archaeological sites including the definition and protective fencing of the sites during the development of the course.'

We are greatly concerned that in practice this has not happened, patricianly as work continues on a sporadic basis after the completion of the archaeological supervision required by the original planning and theoretically completed under Licence 00E0249.


3. Development Levies
We note from our examination of the file that the Local Authority has repeatedly requested the payment of the development levy required under the terms of the original planning permission under Condition 3 and 4(i) for water and road surfacing yet these remain unpaid. [175/99]

Condition 4 (ii) requires agreement between the developer and the local authority on a further contribution for roads prior to commencement of development. Not only does such a document not appear in the planning file, but the letters seeking payment for 3 and 4(i) make no mention of this further condition [4 (ii)].

This levy was required prior to the commence of construction and yet a Commencement Notice was accepted by the Local Authority on 7 April, 2000 and a further application, for retention and reinstatement - has now been accepted for part of the same site. [03/1633]

Has the local authority the power to refuse to grant such a certificate until the requirements for levies to be agreed and paid before construction commences are complied with? Is or should such compliance with prior conditions be a condition of a Local Authority accepting such a Notice and permitting construction to proceed?

Is the application for retention valid if the conditions required before construction commenced in the original application have not been complied with?


4. Regulatory Mechanisms

Finally, we are concerned that a grant of permission at this location would permit the applicant, who has demonstrated sustained delay in relation to responding to the regulatory authorities to date, to have a further five years in which to comply with the planning regulations. This would in effect give the developer eight years to complete his development.

The works which are taking place are in themselves the cause of serious and continuing erosion and public nuisance with substantial damage to the nearest dwelling, as well as the potential negative impact on the SAC of which these cliffs form the boundary [Site Code 335, Ballinskellig Bay & Inny Estuary].

In this context, the current development controls are not effective and we believe that, notwithstanding the fact that the proposal is 200 metres short of the mandatory 1000 metre threshold for an Environmental Impact Assessment, the local authority should exercise the discretion permitted to it and require the developer to undertake an environmental impact assessment.


ENDS