Our letter to the Local Authority detailing our concerns over the flagrant breaches in this developer's planning conditions and our call for an EIA. Mr. Martin B. Nolan,
Kerry County Council,
Tralee, County Kerry,
23 January, 2004 Re: 175/99, 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.
We have visited the subject site and examined the files relevant to this development on behalf of local residents. We were particularly impressed with the public access and courtesy given to our Inspector by your administrative staff.
We are aware that the period for observations to be submitted on the above planning files has expired and consequently are not making a submission to your planning authority.
However, our examination of the files revealed a number of matters to which we feel obliged to bring to your attention, as we have to the Department of Environment, Heritage, and Local Government.
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 our advice that because of the sensitivity of the site, an Environmental Impact Assessment is required.
The issues we raise require different and separate professional assessment, and we would be grateful if you ensured that the relevant officers in the Planning, Environmental, and Legal departments were apprised of our concerns
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 your 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 your authority on 7 April, 2000 and a further application, for retention and reinstatement - has now been accepted by for part of the same site. [03/1633]
Have you the authority to refuse to grant such a certificate until the requirements for levies to be agreed and paid before construction commences are complied with? Should such not be your practice?
In fact, does not the question arise as to the validity of the application for retention 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 would be grateful if you addressed the breaches by this developer of his planning conditions and moved swiftly to rectify one of the worst examples of flagrant disregard for the planning codes encountered in our experience.
We are of the clear opinion that, notwithstanding the fact that the proposal is 200 metres under the 1000 metre threshold for a mandatory Environmental Impact Assessment, in view of the sensitivity of the site you should initiate such a process under the relevant European Directive and ensure that all processing of applications by this developer are refused until this has been completed and that all development work is stopped at this location.
FIE has accused the developer of a golf course on the Hog's Head on the Ring of Kerry of 'flagrant breaches' of the conditions of his planning permission. 'Construction started on this project in April of 2000' a spokesman for FIE said, 'and not only have conditions been ignored but the developer has created a massive breach in the existing cliff face and developed a sea side road almost a kilometre in length under the nonsense of creating a coastal defence.' PRESS RELEASE
Letters to the Kerry County Manager and to the Department of the Environment. FIE has accused the developer of a golf course on the Hog's Head on the Ring of Kerry of 'flagrant breaches' of the conditions of his planning permission. 'Construction started on this project in April of 2000' a spokesman for FIE said, 'and not only have conditions been ignored but the developer has created a massive breach in the existing cliff face and developed a sea side road almost a kilometre in length under the nonsense of creating a coastal defence.' PRESS RELEASE
Letters to the Kerry County Manager and to the Department of the Environment.
This development consent grants permission for the erection of a rock armoured tidal barrage across Clonakilty Bay 330 metres in length, 6.6 metres high, and 12 metres wide. Located 450 metres from the head of the Bay, the barrage would enclose a large area, including the moist concentrated populations of protected birds. LA: Cork County Council
Planning Ref: W/96/1376
Planning decision date: 23 December 2002
ABP Reference: 04.131018
Appeal decision date: 20 May, 2003
This development consent grants permission for the erection of a rock armoured tidal barrage across Clonakilty Bay 330 metres in length, 6.6 metres high, and 12 metres wide. Located 450 metres from the head of the Bay, the barrage would enclose a large area, including the moist concentrated populations of protected birds.
Clonakilty Bay is a notified Special Area of Conservation and a Special Protection Area for Birds. It hosts 7 protected waders of national importance and 1 of international importance, the black tailed godwit of which species it holds 10% of the national population.
The area is subject to the highest level of development pressure and the local authority recently granted planning permission for an 18 golf course, parking etc., on a site which includes part of this SAC/SPA.
The barrage is presented as a flood control measure but in fact is reported as being designed to be a method of bringing the sea to Clonakilty as the town has non other sea side amenity, in spite of its inclusion in the Sea Side Resort Renewal Tax Incentive Scheme.
The barrage would permit the town to 'hold the sea', 'impound' - in the upper neck of the Bay that touches part of the town, permitting regattas and other amenity activities. The current absence of this range of activities puts Clonakilty at a commercial disadvantage against towns like Kinsale, Bantry, Baltimore, Schull, and Ballydehob.
The assessment did not properly address the issue of a 'dual event'. This occurs when the barrage is closed against tidal surge and heavy rainfall floods the catchment. Sea storms and heavy rain fall are often closely connected through the common cause of low pressure areas. Flood waters will funnel into the impounded area where the river enter Clonakilty Bay. Prevented from exiting by the barrage, which has now been closed for the sea surge, the fresh water will flood the town.
Irrespective of this fundamental failure in the assessment process, the EIS is clear that closures longer than 24 hours will have an adverse impact on the conservation status of the SAC.
The EIS states that 'A time difference of a few hours to 24 hours may not pose serious problems for invertebrates but longer phases of either freshwater or seawater will lead to select pressures on the community with a probably lose of species.'
Elsewhere the EIS states that 'it is not known if there is spare capacity in the rest of the estuary.'
Thus it is clear that the impoundment of water behind the barrage for longer than the period of a tidal surge will have an adverse impact on the conservation status of designated area. This appears to be acknowledged in Condition 5:
The barrage shall close only when the today level exceeds 4.4 metres O.D. The barrage shall commence to reopen on the ebb tide when the tidal level falls below 4.4 metres O.D. The developer shall maintain a written record of all gate opening and closure operations. This record shall be supplied to the planning authority on request.
This condition, if implemented, would make impossible the exercise of the right for a 48 hour impoundment given in Condition 3:
All events of impoundment shall be subject to Notifiable Actions procedures with a requirement to apply to the planning authority prior to commencement as specified by these procedures. The duration of the impoundment event shall not exceed a total of 48 hours within any seven day period.
Under this condition, the town may close the barrage from high tide on a Saturday morning though a weekend, only opening it again on Monday morning. But this is impossible if Condition 3 is enforced, as it is obliged to commence to reopen the barrage and release the water when any given tidal surge has fallen below 4.4 O.D.
If there is an admitted adverse impact, should not the procedures required under public health and safety part of the Habitats Directive have been invoked before permission was granted?
We write to appeal the grant of permission for this development on a flood plain near Carrick-on-Shannon. These are the grounds of our appeal:
¬? Flood risk and mitigation taking potential devaluation of property and high insurance premiums into account.
¬? Water pollution, ecological impact and mitigation.
¬? Noise and Vibration.
¬? Traffic Impact, modal split and public safety.
¬? Infrastructure and community facilities.
¬? Retail impact.
Due to limitations of resources, however, we detail only one ground - that having regard to the location of the site of the proposed development on a flood plain and recent evidence of its liability to flooding, the proposed development would endanger the health and safety of persons occupying or employed in the proposed development and in the area and would depreciate the value of property in the vicinity by reason of increased flooding risk and would, therefore, be contrary to the proper planning and development of the area and the precedent established by the Appeals Board in a previous decision on the neighboring land.
In this regard, we would draw your attention to the Report of the Inspector on an appeal in 2001 in the neighboring contiguous fields. [Mixed use scheme, business/technology office park, 165 residential units, marina development etc., Dolan Kelly Developments Ltd., PL 12. 124783].
The decision to refuse this proposal on grounds of flooding was based on calculations supplied by the developer giving 'estimates of water displacement, rise of water level at 0.05 mm assuming normal flood event and based on a 1:50 year flood event'. [Response to Request for Additional Information received by the Planning Authority on 21 May 2001, P. 01083].
In the current application, the figures for the subject site are given on page 37 of the EIS, Section 7.10.4 et sec. These suggest a rise in water level across the flood plain of between 4.0 and 6.7 mm.
Both developments have very similar estimates of water displacement - 12,500 m3 for the Kelly Development, and 12,875 m3 for the Tesco development.
The difference is that the Kelly application suggests the flood plain is 50,000,000 m3. The Tesco development suggests the flood plain is 3,156,929 m3 - 15 times smaller.
When your Board refused the Kelly application last year the Inspector wrote in the following terms about a rise which he took to be 0.05 mm
'The site area has been subject of extensive flooding over recent years and the adjoining road network and environs have also been seriously affected. The extent of development that has been carried out in the recent past that must have implications as regards the risk of flooding has been referred to above and in my opinion the extensive alterations involved in creating the inner dock also give rise to concern. I am not satisfied that all risk of flooding occurring at the site can be eliminated by means of the mitigating measures incorporated in the proposal and I therefore consider the site unsuitable for development. Having considered the extensive and adjoining national road and environs has been subject to in the past, the extent of development that has been taking place in the recent past, despite the proposed mitigating measures, that any possibility of flooding occurring can be eliminated. I therefore recommend refusal of permission in that the proposal would present a risk to the safety of the occupants of the development.'
It is hard to see how the Board can now grant permission for this proposal which the developer calculates will have between 80 and 134 times greater impact than the 0.05 m3 rise which precipitated the previous refusal.
Further, we can find no references in this study to the impact of the development upstream from the site. The development will create a flood barrier, with effects not only downstream through loss of flood plain, but through potential backup with its effects on properties upstream where much development has taken place and where peat extraction is causing flash peaking of floods.
As we did in the last appeal, in the absence of a similar document from our Department of the Environment we would respectfully draw the Board's attention to the relevant UK Planning Policy Guidance document. We attach to this appeal selected sections of 'Development and Flood Risk - Planning Policy Guidance Note 25' on development control in flood plains, including sections on the effects of global warming and the appropriate use of the precautionary principle in this context.
The Inspector in the Kelly case acknowledged the relevance of this document and accepted that 'the susceptibility of land to flooding is a material planning consideration'.
He went on to say
'I consider development of the site undesirable, from a planning perspective, irrespective of the proposed ground improvement works at the site to overcome potential flood risk. In this regard, I draw the Board's attention to the site location on a flood plain and the general planning guidance and set out in Planning Policy Guidance document, "Development and Flood Risk" prepared by the British Department of the Environment. A copy has been attached to the Appeal by Friends of the Irish Environment for the Board's consideration. It is clearly advised in this document that it is inappropriate for lands within flood plains in the vicinity of rivers and at coastal locations to be zoned for development purposes in that such lands are not suitable for development due to potential for increase in flood risk and increase in upstream downstream problems and that any permitted development on such lands should be strictly limited. While this Planning Guidance document is applicable in the British Planning system and the applicant contests its relevance and there is no similar planning guidance available in this country, I consider general consultation of it appropriate as suggested in the Appeal.'
We note also that aside from the grounds listed at the outset of our appeal, the Inspector suggested - rightly in our view - that there was a case for refusal on amenity grounds as well:
'The retention of lands located between the N4 and the River Shannon for the sole purposes recreational amenity, with scope for river based recreational pursuits. As a result the defined boundary for development in Carrick on Shannon would be confined to that to the north and east side of the N4 and town inner relief road. To a considerable extent, the proposal can also be regarded as an undesirable "edge of town" development that more appropriately belongs to a more central location
For all these grounds, we request the Appeals Board to refuse this application.
Postal Order for Euro 150
Acknowledgement of Receipt of Submission by Leitrim County Council
Extracts from Development and Flood Risk - Planning Policy Guidance Note 25, UK Department of the Environment.
Full text at: http://www.planning.odpm.gov.uk/ppg25/index.htm
Friends of the Irish Environment are concerned that the proposed coastal defence has not been fully evaluated, is based on the provisions of an amenity which is undermined by Condition 1 of the local authority's grant. Condition 1 further undermines the choice to reject a permeable barrier. The Secretary,
An Bord Pleanala,
21 January 2003
Appeal Against a local authority development consent
Local Authority: Cork County Council
Ref No: W/96/1376
Development: Tidal Barrage and associated works
Location: Youghals, Desert, Clonakilty, Co. Cork
Date of Decision: 23 December, 2003
Friends of the Irish Environment are concerned that the proposed coastal defence has not been fully evaluated, is based on the provisions of an amenity which is undermined by Condition 1 of the local authority's grant. Condition 1 further undermines the choice to reject a permeable barrier.
Further, the proposal does not form part of a planned approach to the problems of coastal defences which would ensure the country's most valuable flood defences are built first in the interest of proper planning and development.
The current West Cork Development Plan considers the value of the coastal assets to the county but does not address the priorities in terms of "Protection of risks, including erosion and flooding" [West Cork Development Plan 8.2.3 (e)].
In fact, the proposed site is not addressed in the 1998 Clonakilty Development Plan because it is "outside the UDC boundaries", nor is it dealt with extensively in the 1996 Cork County Development Plan for the same reason. The problems in coastal zone management are highlighted by this application.
In the section dealing with "surface water" [West Cork Development Plan 5.2.18], the Plan lists the proposals in the county for control of surface water, including Fermoy, Mallow, (Blackwater and Spa Rivers), Bantry, Clonakilty, Dunmanway, Skibbereen, Ballincollig, Bandon, Blarney, and Carrigtwohill.
Not only are no comparisons of environmental cost and benefit in terms of function provided in the Development Plan, but the Environmental Impact Assessment fails to provide information that allows the public to assess the project in terms of these other important proposals for the protection of County Cork's coastline.
That such an assessment is absent is made clear by 1.5.9 of the non-technical summary where the issue of "climate" is taken to mean the effect of the barrage on the climate, rather than the effect of climate change on the rational of this project.
The Consideration of Alternatives [EIS 3.0] is inadequate and has been entirely omitted from the non-technical summary [1.2 EIS]. This in itself is a serious flaw as it lessens the likelihood of the public awareness of possible alternatives.
Even within the examination of alternatives in the main body of the EIS, no details are provided for the alternative methods of protecting the town against flooding.
The only figures provided in the EIS for the cost of flooding is given as IR £150,000 in 1989. Floods or the lack of them in the last two years have not been considered, which given the severe incidents of flooding in many West Cork towns is difficult to understand and makes evaluation of the project more difficult.
The suggestion of raising adjacent properties could be seen as mischievous. Techniques exist for flood proofing houses, and the last of these would be the raising of the buildings.
The EIS dismisses the alternative solutions to the flooding in terms of bunds or flood walls for specific estates or sections of the town. What would the cost be of flood proofing the affected buildings against the cost of the barrage?
Would floods end for these residents, given the statement that in "Need for the Development" that "the capacity of the Fealge River and bridges is insufficient to carry major floods even with the control of tidal flooding" [EIS 2 Need for Development].
This Condition reads:
"The barrage shall close only when the level exceeds 4.4 mtres O.D. The barrage shall commence to reopen on the ebb tide when the tidal level falls below 4.4 m. O. D."
Aside form the failure to provide details of serious alternatives which would allow the project to be assessed properly, there is a continual reference through the EIS to the "amenity value" that the barrage would provide to the town at its present location. As Condition 1 now prevents the use of the barrage for amenity purposes, this justification for the proposals can not be sustained and undermines the ratonal of the proposal.
This is particularly true of the rejection of the proposal to ensure that the barrage is permeable. This was rejected largely because this would not enable the operators to "maintain high levels inside the barrage during amenity use." [EIS 3.4 Types, Profiles of structures]
While we welcome Condition 1 to ensure that the barrage is only closed during the hours of maximum flood, the EIS makes it quite clear that the applicant intended to close the barrage "on limited occasions during the summer" for "the purposes of regattas".
We believe this project was originally conceived to provide an amenity for the people of Clonakilty in terms of allowing water to be trapped at high tides and used for regattas. This is clear from the EIS on numerous occasions.
Condition 1, if enforced, would eliminate this use of the barrage. It also, therefore, removes the cause of the proposal and casts doubts on the rejecting of the more environmental satisfactory use of a semi permiable barrage at this location.
We respectfully request An Bord Pleanala to refuse this proposal until the Environmental Impact Statement has been rewritten and submitted again to the Planning Authority to ensure that the our coastal defences proceed under the principals of proper planning and development.
Friends of the Irish Environment
DECISION: THE BOARD GRANTED THE PERMISSION, BUT WITH CONTRADICTORY CONDITIONS THAT APPEAR TO MAKE IT DIFFICULT BUT NOT IMPOSSIBLE TO USE IT AS A LEISURE CENTRE.