7 January, 2003. FIE seeks the intervention of the Minister for the Environment to stop local authorities misinforming objectors of the time available to appeal their decision. See our Press Release 7 January, 2003. FIE seeks the intervention of the Minister for the Environment to stop local authorities misinforming objectors of the time available to appeal their decision. See our Press Release
This appeal relates to an application to erect a single storey four-bedroom bungalow. The site has a road frontage of 37m and a depth of approximately 60m; the building is shown 22m into the site. Foul drainage is to be via a septic tank and percolation area. The submitted plans show two building plots side by side, although this application is only for one dwelling. A new vehicular access with entrance gates set back about 3m from the carriageway is proposed.
The site is located in the open countryside around 4 miles from Carrick-on-Shannon at the Cashel Crossroads. There are some other isolated buildings nearby but the site is in the open countryside and very exposed to views from the surrounding road network. There is no existing tree cover and the topography is quite flat. The site is fenced off and there have been some minor proprietary site works carried out in advance of development. The adjacent land to the north is also fenced off as a building plot but no site works have taken place. A small stream runs along the southern boundary although this is covered with vegetation.
RELEVANT PLANNING HISTORY
The correspondence on file refers to an outline permission Ref. PD/00/407 granted in June 2000. This was for two dwellings and refers to the same layout plan as the current application. There is limited detail given regarding the background to this decision. A note headed 'Recommendations of Planning Officer' only that states that:-
I have considered the above application and the various reports and recommendations prepared by the Council's Technical Advisers to the Planning Authority.
THE DEVELOPMENT PLAN
The Roscommon County Development Plan 1993 shows the site in an area without specific notation. The development plan states that there is long-standing pressure for new houses in the countryside and it is important that such developments are in keeping with the rural character of the area. The plan policy is to require that houses are located, sited and designed to ensure they do not have detrimental environmental or traffic safety effects. Specific design requirements are listed including the use of a sites natural feature to help integrate new building unobtrusively into the countryside.
Proposals for groups or lines of houses will not normally be acceptable. The creation or extension of ribbon developments will not be acceptable and planning permission for such development will not normally be granted.
In the transport section it is stated that the Council will aim to ensure that all development proposals, urban and rural, fulfil traffic safety and car parking requirements.
PLANNING AUTHORITY DECISION
The Roscommon County Council made the decision to grant planning permission on the 14th June 2001 subject to conditions that included: -
1. Drainage shall be via a puraflo effluent treatment system with imported soil for the percolation areas.
2. The building line shall be in line with the adjoining house to the north-east.
3. The vehicular access shall be in accordance with plans dated 6th February 2001.
4. The drain across the frontage of the site shall be piped for the full width of the proposed entrance/parking area.
5. The building materials are specified.
GROUNDS FOR APPEAL
These are submitted on behalf of the appellants by Peter Sweetman and Associates who state that: -
1. The documentation submitted with the application is inadequate and does not comply with Article 23 of Part IV of the Local Government and Development Regulations 1994. The layout plans are not to scale no details of materials and finishes are given and there are no proper dimensions. The Local Authority should not have accepted the application.
2. The extent of the site is inadequate for the septic tank required by condition. This is a limestone area and due to the permeability of the rock pollution can travel great distances underground. During heavy rainfall the water table rises dramatically. To the immediate north-west and west of the site are natural springs. An open stream runs along the south-western boundary of the site. No percolation tests appear to have been carried out to assess the suitability of the site. The soil is only 300mm thick and the 300-metre square percolation area required by condition can not be accommodated on the site.
3. The design of the dwelling is inadequately detailed poorly proportioned, without landscaping proposals and will erode the rural amenities. The proposed windows and doors do not relate to the vernacular architecture of the area. The rear elevation will be visible from the regional road and no landscaping proposals have been supplied.
4. The development is a contravention of the development plan by virtue of its location and design, contributing to the erosion of the character of the countryside through poorly designed and dispersed speculative residential development in a continuing uneconomic and socially unsustainable trend.
The applicant has provided no compelling social need for a dwelling and the application appears to be speculative ribbon development. Ancillary items such as sheds can greatly increase the impact of a simple dwelling. If second dwelling shown on the submitted plan is also allowed the impact would be doubled. The proposals appear to be a replica of two dwelling developments at Knockroe and Dorray that have recently been constructed and are very intrusive features in the landscape. This pattern of development is also repeated in many other rural locations.
There is a clear statement against such urban generated housing in the document 'Sustainable Development: A Strategy for Ireland' and a need to concentrate development in urban and suburban areas.
RESPONSE OF THE PLANNING AUTHORITY
The Executive Engineers checklist is submitted. This is not very user friendly but does help in assessing some aspects of the proposed development.
RESPONSE OF THE APPICANT
The are submitted on behalf Mr Tom Callaghan and the applicant by Adept Consulting Engineers who state: -
1. The Planning Authority who already had details accepted this application because this application was for approval. Outline permission was granted in June 2000. (However, the form submitted with the application states that the application is for 'full Planning' and this is confirmed by the site and paper notice which describe the application as being for full planning permission. The decision notice issued by the County Council grants permission.)
1. The Planning Authority has already granted permission for the site next door on 28th May 2001.
2. The site area is 0.5 acres and this is more than adequate to accommodate a standard septic tank system.
3. The system complies with the requirements of SR6: 1991 and the recently published Environmental Protection Agency Wastewater Manuals "Treatment Systems for Single Houses".
4. The applicant proposes to pipe the existing stream on the south-west of the site with sealed pipes. This will enable compliance with minimum distance requirements set out in SR6: 1991.
5. The ground conditions vary throughout the site therefore; generalised assumptions of ground conditions are misleading.
6. There are many farms in the area that will generate & deposit effluent at a rate many more times greater than that generated by the development. However, there is no evidence effluent contamination to any remote sources of water in the locality.
7. The regional road is 120m away and the approval decision for the site next door will result in dwelling that is closer to this road.
8. Landscaping proposals have been submitted to the Council.
9. As this is an application for approval arguments about compliance with the Development Plan policies on houses in the countryside are irrelevant.
10. The Planning Authority who has accepted the proposals has evaluated the design of the house.
ASSESSMENT AND RECOMMENDATION
The application was correctly advertised as being for full permission and not approval of details as claimed by the applicant.
The main issues of this appeal relate to the detailed design of the building and the suitability of the proposed septic tank. The submitted elevations are not the best quality but I am of the opinion that they do provide enough information to assess the merits of the design of the house. However, the site layout plan is inadequate as it fails to show some key elements of the development.
The design of the proposed house is standard and whilst the plans are to a particularly poor standard I am of the opinion that the building is to an appropriate design.
The applicant indicates that he intends to pipe the existing stream that runs to the south west of the site to comply with SR6: 1991 standards. However, this is not shown on the submitted plans. Furthermore it would appear that the to meet the minimum distance specified on the decision notice of 10m from the percolation area to the stream would entail about 25m of piping. The visual impact of this engineering operation needs to be assessed but there are no details provided. Furthermore, the adequacy of this as a means of preventing contamination of the stream can not be determined.
There are no results of trial holes submitted with this application and as the applicant points out the soil conditions will vary across the site. Therefore, it is important to know if the proposed location of the septic tank and percolation areas is appropriate. These are shown on the submitted plans and require planning permission. This is an application for full permission and all necessary details should be provided. The whole site was water logged when I visited at 10.30 in the morning. It had rained overnight and pools of water can be seen in my photographs. The area of the site where the percolation area is proposed was very wet underfoot and running water from the nearby stream could clearly be heard. The submitted details of the outline permission also fail to address the matter of drainage adequately and therefore the rationale behind the proposed siting can not be assessed.
Whilst the principle of development has been established by the grant of outline permission the submitted application is for full permission not approval as claimed. However, the submitted plans and particulars are clearly deficient and as a result the full implications of the proposed development can not be determined. It would not be in the interest of the proper planning and development of the area to grant full permission on the basis of the submitted details. The evidence on site is that the use of a septic tank would also not be in the best interests of public health due to the poor percolation qualities of the soil.
1. The plans and documents accompanying the planning application which were lodged with Roscommon County Council on 12th December 2000,14th June 2001 and 6th February 2001 do not comply with the requirements of article 23 of the Local Government (Planning and Development) Regualtions, 1994 in the following respects:-
a) The visual implications and adequacy in terms of public health of the proposal to pipe a nearby stream are not shown.
2. Having regard to the soil conditions and high water table, the board is not satisfied, on the basis of the submissions made in connection with the planning application and the appeal, that the site can be drained satisfactorily by means of septic tank, notwithstanding the use of a proprietary waste water treatment system. The proposed development would therefore be prejudicial to public health and contrary to the proper planning and development of the area. Planning and development of the area.
Re: P - 01083: Dolan Kelly Development Ltd; 116 berth marina, 5,140 sq meter offices in 4 two storey blocks and 13,363 square meters 166 residential units in 6 four storey blocks on a site of 4.8 hectares at Attirory and Townparks, Carrick-on-Shannon See Also Our First Submission
Comhairle Chontae Liatroma,
30 March, 2001
Re: P - 01083: Dolan Kelly Development Ltd; 116 berth marina, 5,140 sq meter offices in 4 two storey blocks and 13,363 square meters 166 residential units in 6 four storey blocks on a site of 4.8 hectares at Attirory and Townparks, Carrick-on-Shannon
Comment on Request for further information
Thank you for your letters of 21 and 26 March, 2001, enclosing the response of the developer to the local authority request for further information
We have examined the additional information provided and make the following comments.
In terms of the artist's drawings provided we would respectfully suggest that the local authority examine the "Angle of Vision" artistic impression across the FIElds. Where are the four storey blocks which should loom over the two storey blocks, given the level ground? Where are the cars? Where are the boats? What kind of visual impression of the impact of this proposal on the landscape can these artist's drawings have without cars and boats?
It does not even appear to us that the artists drawings provided accurately reflect the height of the proposed building's floor level from "ground level". The technical drawings provided suggests the proposed floor level is well above ground level, presumably for flood control. The effect of this raising of the building will be to greatly increase the visual impact and this is not shown in the artist's impressions. We would again remind the planning authority that "The River is the Town's most important natural amenity" [Leitrim County Development Plan, Tourism Goals, Page 8]. In particular, it is hard to take seriously the developers who suggests that the very modest changes to two gables in any way addressed the planning authorities requests for "revisions that more accurately reflect a traditional concept".
While we do not propose to commission any flood water studies on this proposal at this stage as the local authority is well equipped and funded to do this, we would draw your attention to, for example, Figure 5 in Appendix 2, supplied by VCL Consulting Limited. In this drawing the "dredge line" should be an average of .87 meters below the "existing surveyed river bed". But the dredge line in fact is marked as the same as the "existing surveyed river bed". Development consent should not be given to a proposal which is unclear in its extent.
We also wonder how the road drainage can expect to function when the piped exits appear to be at the water level of a seasonally flooded grassland. Flooding of the access road would appear to be inevitable, limiting access to fire and emergency services during storm conditions when they might be most required.
Finally, we draw your attention to the claim that the area of soil removed for the habour (given as 17,500 cubic meters) can be used in calculations as an area capable of attenuation of flood waters. Is not a habour by definition normally filled with water before any floods begin? How can this area then be presented to the local authority as if it is capable of holding more than half of the water displaced by the development? This kind of claim undermines the developer and his advisor's credibility and appears to be an attempt to retrospectively justify a design that was prepared without sufficient consideration of its location.
These matters demonstrate Friends of the Irish Environment's belief that flood plains are not suitable for developments of any kind, however appropriate they may be in terms of transport and propinquity to nearby towns.
It is difficult to understand the logic behind An Taisce's suggestion that this development is an alternative to the "strategy of dispersing marina development up and down the river in new locations." Neither An Taisce nor your authority has within its jurisdiction the strategic development of the Shannon. Even within your own authority's jurisdiction, we have searched the Leitrim County Development Plan in vain for the strategy prohibiting dispersed marinas in return for one massive development as suggested by An Taisce.
Nor have the developers answered our question put in our previous submission about the alleged value to the local community of this development: "We are naturally suspicious of the suggestion that the proposal will assist in establishing a 'critical mass' to support the expansion of public services [The Predicted Impact of the Proposed Development, 8.9]. What is this 'critical mass'; at what level will the provision of new public services in the town be triggered? What are the nature and extent of the public services proposed?" Without this kind of detail, the claims made can not be substantiated.
The local authority's very reasonable request that 25% of all berthing be public and short term has now been met with an equally unsubstantiated claim. The Developer refuses to offer more than 12 berths out of 125 berth proposed within his site on the grounds that the "economic viability of the project would be threatened" by this modest demand. It is difficult to see why the developer has provided Drawing 8009 showing 32 public berths when he states that he will only conform to site plan 000A with only 12 public berths. Particularly if part of this public amenity aspect is to be satisfied off site, then there can be no excuse for not openly meeting the 25% criterion.
We suggested in our initial objection that the proposed development is just what concerned the Heritage Council when it made representations to the Minister for Finance about the failure to provide guidelines for appropriate development in these tax incentive areas:
"Following the KMPG Report on the first ten years of the Urban Renewal Scheme (1996) and the results of the Seaside Resort Scheme of the past several years, we can no longer afford to embark upon a scheme which offers lucrative financial incentives for property developers, without first putting in place a strategic plan which simply identifies what type of development is most appropriate where, and indicates an acceptable limit to the various types of development. It is no longer acceptable to adopt a laissez faire approach to socieo-economic regeneration, allowing the market to dictate what kind of development takes place where and at what price."
[Heritage Council to Department of Environment
and Local Government, 15 July, 1999].
Since this time we have examined the An Interdepartmental Review of the Pilot Tax Relief Scheme for Certain Resort Areas. We would respectfully suggest the local authority acquaint itself with this document which records the disaster for the environment and the local economies - and the boon to a remote "market" - through the "Pilot Tax Relief Scheme for Certain Resort Areas". We suggest that the following down sides to that Scheme also apply to the current scheme and in particular to this proposed development:
¬? the ring doughnut situation with intensive development on the edges of towns and villages
¬? large tracks of housing intruding on the landscape
¬? primary selling points of Irish tourism undermined
¬? developments of a scale and nature at variance with the resort
¬? lose/alteration of character
¬? inflationary land prices in excess of national trends
¬? infrastructural overload
[Source: An Interdepartmental Review of the Pilot Tax Relief Scheme for Certain Resort Areas, Department of Tourism, Sport, and Recreation, with the assistance of Department of Finance, Revenue Commissioners, Department of Environmental and Local Government, Bord Failte, and Shannon Development. Unpublished and undated.]
The developer has now made clear in his letter to the local authority of 27 February, 2001 that this project is "not economically viable without these tax incentives". Is the purpose of tax incentives to support developers building on flood plains who would otherwise have to find more appropriate locations in accordance with proper planning and development? We would remind the local authority of our earlier highlighting of the developer's failure to consider alternative sites:
"No alternative locations were considered as this site was considered appropriate for the development." [EIS: 6.0 Examination of Alternatives.]
This proposal should be refused by your authority at this location in the interest of sustainable development and to protect the natural and scenic amenities of Carrick-on-Shannon and its environs.
Big Meadow, Athlone
Planning Inspector's Report An Bord Pleanála
1.0 APPEAL DETAILS
1.1 An Bord Pleanála Ref. No.: PL34.122636
1.2 Planning Authority: Athlone Urban District Council.
1.3 Planning Authority Ref. No.: 3886/99
1.4 Applicant: Noel Heavey.
1.5 Nature of Application: Permission.
1.6 Planning Authority Decision: Grant subject to 23 no. conditions.
1.7 Location: Lower Dock, Big Meadow, Athlone.
1.8 Description of Development: Construction of 32 no. apartments, 57 no. townhouses, associated site works and drainage.
1.9 Appeal Type: 1. Third Party (James P. Shannon)
v Grant of Permission.
2. Third Party (Friends of the Irish
Environment) v Grant of Permission
3. Third Party (Birdwatch Ireland)
v Grant of Permission
1.10 Observers: Athlone Docks Management Limited.
The Heritage Council.
2.0 SITE CONTEXT AND DEVELOPMENT DETAILS
2.1 Inspection Date
The appeal site was inspected on 22/5/2001 and a photographic survey of same is appended this report.
2.2 Site Location and Description
The appeal site is located on the southern fringe of Athlone Town on the west bank of the River Shannon. The site lies at the southern extremity of the built-up area of Athlone and there is what appears to be an unused industrial-type building located at the northern portion of the appeal site. Access to the appeal site is currently via Deer Park Road which is with residential development, while the site is bounded to the north-west by school premises and immediately to the north by apartments constructed on foot of permission Ref. 3191/92 (Shannon Weir) which was constructed by the same Applicant as in the present instance. The east of the site is bounded by the River Shannon and a riverside path, while to the south there are open fields forming a flood plain for the adjacent river. In the northern section of the appeal site is a single storey industrial building of rectangular plan on a north-south orientation. This appears to be disused and is the only structure within the boundary of the appeal site. There is an area of gravel-covered parking and access to the west of this structure which leads onto Deer Park Road. To the south and to the west of the industrial building are areas that are fenced off and used for storage. There is a gate adjacent to the end house on the south of Deer Park Road which leads to a farm track running down the western boundary of the site, to the west of which is a ditch. It should be noted that the site boundary does not extend to the ditch on the western or southern edges nor does it extend to the river on the eastern boundary of the site even though these appear to be within the ownership of the Applicant. The southern two-thirds of the appeal site are comprised mainly of rubble fill which has raised the level of the appeal site above that of the flood plain to the west and south of the site by approximately 1 metre in height.
2.3 Description of Proposed Development
It is proposed to erect five blocks containing 32 no. apartments and 57 no. townhouses, 89 no. housing units in total as follows - Block 1 containing 11 no. apartments and 12 no. townhouses; Block 2 containing 11 no. apartments and 12 no. townhouses; Block 3 containing 10 no. apartments and 11 no. townhouses and Blocks 4 and 5 containing 16 no. and 6 no. townhouses respectively. Block 1 is located in the north-east corner of the site, Block 2 in the south-east corner, Block 3 in the south-west corner, Block 4 along the western boundary and in a north-central portion of the site and Block 5 along the north-west boundary of the site. Access is proposed via Deer Park Road to the west but the Site Plan (Drawing No. PPO-1) suggests access also via Shannon Weir running through the development to the north. There is one major internal circulation road running centrally with Blocks 1 and 2 to the east of the road, Blocks 4 and 5 to the west and Block 3 to the south. There are two cul-de-sacs (between Blocks 2 and 3 and Blocks 3 and 4) to service the proposed housing units. The total number of car parking spaces proposed is 103 no. and open space of 3,679 square metres is proposed on the northern, central and eastern sections of the site. Blocks 1, 2 and 3 are three storeys plus attic accommodation and an approximate ridge height of 12 metres each, while Blocks 4 and 5 are three storeys with ridge heights of approximately 12 metres also. Blocks 1, 2 and 3 have staircase features to the front elevations with apartments on the ground floor and townhouses occupying the upper two floors plus attic area. Blocks 4 and 5 are three-storey townhouses.
3.0 PLANNING CONTEXT
3.1 Planning History
Ref. 3086/91 relates to a grant of permission for urban renewal development to include shops, supermarket, apartments, restaurants, offices, triple cinema, car parking, etc. at the docks in Big Meadow, Athlone, which was granted on 4/11/91 subject to 22 no. conditions. The Planning Authority was unable to provide a site location plan for this development which has since lapsed.
Ref. 3191/92 relates to a grant of permission to Noel Heavey on
26/1/93 for a mixed residential and commercial development including car parking at the docks, Athlone, subject to 22 no. conditions. The red line boundary of this site includes the area to the north of the present appeal site but also including an area now within the appeal site running along the northern perimeter of the site between Deer Park Road and the southern end of the docks development. In addition the western portion of the present appeal site is indicated in Drawing No. 80.01-223 as accommodating 121 no. car parking spaces, and appears to indicate an overlap of application sites.
3.2 Planner's Report
There is no Planner's Report as such, but there is a memorandum from the Executive Planner to the Town Clerk which states that "the Urban Council decided on 6/11/2000 to materially contravene the Development Plan to grant planning permission for this development and I have been requested to prepare conditions for attaching to the Grant of Permission. On that basis I attach herewith 23 conditions". I draw the Board's attention to the correspondence on file between the Planning Authority and the Applicant which relates to a request for further information and clarification of same and the Applicant's responses. In particular, I refer the Board to a letter from D??chas, The Heritage Service to the Town Clerk dated 2/5/2000 drawing the Town's Clerk attention to the fact that although the Big Meadow is not a designated Special Protection Area it does host notable numbers of wintering waterfowl including Whooper Swans, Wigeon and Dabbling Duck. The letter states that the chief value of the site (Big Meadow) is the presence of the corncrake which is a globally endangered species under threat of extinction. The letter states that "the numbers present in Big Meadow, Athlone, represent a significant percentage of the entire breeding population of the species in this country and accordingly it is imperative that their ecology be protected". D??chas recommends a refusal of permission for the proposed development on the grounds it would have a significant adverse impact on the environment, on the wild fowl using the area and on nesting corncrake. However, in a fax dated 27/7/2000 and in a letter dated 7/9/2000 D??chas, following a comprehensive review of the area, state that the appeal site is not within any proposed or candidate conservation site and that the site does not contain any important habitat and that the conservation value of the area is not sufficient to warrant its future designation as a proposed or candidate conservation site. D??chas refer to concerns regarding the corncrake but suggest that providing screening for light pollution and a people/pet-proof fence cutting off access to/from the Big Meadow would be sufficient to protect the corncrake.
Also on file is a memorandum from the County Manager to the Chairman and Members of Athlone Urban District Council dated 30/5/2000 outlining the procedures for a material contravention (as part of the site is zoned for primarily commercial use and the proposed residential development would be a material contravention of the zoning objective) and also setting down the objections received from various parties. The County Manager, on the basis of the earlier advice from D??chas, recommends a refusal of Grant of Permission in this instance. At a meeting on 6/11/2000 a material contravention proposal received a 75% majority and the Urban District Council directed the County Manager to issue a Notification of Grant of Planning Permission.
3.3 Decision Details
A notification of Grant of Permission was issued on 20/11/2000 subject to 23 no. conditions. The conditions are of a standard site development nature but Condition No. 18, which deals with boundary treatments to the southern and western boundary, appears to be an attempt to mitigate the impact of the proposed development on the adjacent bird habitats. Condition No. 19 prohibits public lighting to the south of the proposed buildings in order to reduce the effect of light pollution on the land to the south of the proposed development. Condition No. 20 provides for the fitting of hoods to public lighting in the southern end of the site in order to protect the ecology of the area.
3.4 Development Plan Provisions
The Athlone Development Plan 1990 locates the northern portion of the site within the urban renewal area with the southern portion having a zoning objective D - to provide for shopping and commercial development where the use of the zone is primarily commercial. An untitled map in Appendix A of the Plan proposes to extend the urban renewal area to cover a mid-section of the appeal site for residential purposes. Appendix B of the Plan identifies the majority of the appeal site (excepting a strip along the southern boundary) as Area A - riverside - with potential for major developments. The Plan states that at the appeal site "there are no buildings or structures of any significance, and this sector would be suitable for a major project, with perhaps a particular emphasis on leisure and recreational facilities". Section 4 of the Plan contains the development policy with respect to housing and this is copied to the file for the Board's attention.
The draft Athlone Development Plan 2000 zones the appeal site for residential use excepting a narrow strip of land along the eastern boundary running along the banks of the River Shannon and a narrow strip of land along the southern boundary of the site which is zoned for open space use. The boundary of the Special Area of Conservation is shown in the Plan as including the south-east corner of the site within the SAC. A copy of this Plan is appended to the appeal file for the Board's attention. Several specific objectives contained in the Plan relate to the appeal site and to the Big Meadow area in general. Objective NH2 states that the Council will "protect the natural environment in the candidate Special Protection Area within the urban district" and Objective NH10 states that "in relation to the riverside and canal, the Council recognises the particular role that these linear routeways and their settings/margins have as wildlife zones and corridors. It will ensure that these roles are not threatened by development and where possible will seek to enhance the bio-diversity capabilities". Objective OS17 seeks to "develop a riverside walk and access for angling, on the west bank as far as the mouth of the canal to join with the canal park walk which includes a pedestrian bridge across the canal mouth with sufficient clearance for small pleasure craft". I have copied the objectives map onto the appeal file for the Board's attention.
4.0 APPEAL SUBMISSIONS
There are three third party appellants in this case: Mr. James P. Shannon, Friends of the Irish Environment and Birdwatch Ireland.
4.1 Appeal by James P. Shannon
The Appellant puts forward five grounds of appeal namely: flooding; right of way; corncrake; parking; and access for emergency services.
With reference to the issue of flooding the Appellant states that due to global warming that the site, which has been subject to flooding every winter in recent years, will be subjected to unprecedented levels of flooding in the future. The Appellant has submitted photographs to which I draw the Board's attention which demonstrate flooding on the site. An article from the Westmeath Independent dated 1/12/2000 regarding the necessity for planning authorities to take cognisance of lands prone to flooding is also attached to the appeal document.
The Appellant states that there has always been a public right of way from Deer Park Road to the River Shannon over the site and attaches statements to verify same. The Appellant states that a gate has been placed across the right of way recently and the issue has not been resolved by the Planning Authority despite requests from the Appellant.
With reference to the corncrake issue, the Appellant attaches a memorandum from Dr. Judith Kelemen dated 13/6/2000 where mitigation measures are suggested in the memorandum (the erection of a wall/fence along the northern boundary of the SAC/SPA and the creation of a buffer zone unattractive for corncrake along the same boundary). The Appellant states that the erection of a barrier is not possible due to a land owning dispute and is impractical in terms of local access. In addition, the creation of a buffer zone is not desirable and the reason the corncrake are still in evidence in Big Meadow is because it is impossible to mow the vegetation (any mowing of the vegetation would create a buffer zone) before late summer/early autumn. The Appellant notes that Judith Kelemen is concerned that the birds are threatened by nearby human habitation but has no objection to permitting development on the perimeter of the corncrake habitat. With reference to a site inspection memo dated 21/7/2000 the Appellant disagrees with several points raised in the site visit note, especially the contention that the site should be removed from the candidate SAC since it contains nothing which would attract designation under the Habitats Directive and also that the mitigation measures proposed would protect the habitat of the area.
With reference to parking the Appellant states that Condition 10 of the Grant of Permission acknowledges that there is insufficient parking within the boundaries of the appeal site and that this will lead to overfloe parking in the nearest available spaces, i.e., Deer Park Road, which will affect the Appellant's own car parking space.
With reference to access for emergency services the Appellant states that a barge moored on the river approximately 30 years ago seeking an hotel licence was refused on the grounds that emergency services could not get through the narrow streets leading to the site in question. The Appellant states that the route to the river is now much more congested with parked cars.
The Appellant also attaches letters from himself to the County Manager dated 6/5/2000 and 7/11/2000 objecting to the proposed development to which I draw the Board's attention. Also enclosed is a response from the Town Clerk to these letters. The content of these letters form the basis for the grounds of appeal as outlined above.
4.2 Appeal by Friends of the Irish Environment
The Appellant submits seven grounds of appeal as follows.
Firstly, in relation to the zoning of the site the Appellant states that to zone a flood plain for light industrial development was unreasonable and that flood plains if raised, will cause water to go somewhere else, possible the streets of Athlone.
With reference to the material contravention passed by the Planning Authority, the Appellant states that this was unreasonable and not in the interests of the proper planning and development of the area as the building of houses and apartments on the flood plain is even more unreasonable than the light industrial zoning as the site will be raised up and cause the river to back up.
Thirdly, the Appellant states that there was a requirement for an Environmental Impact Statement as the site impinges on a Special Protection Area and a Special Area of Conservation but that an EIS was not submitted.
Fourthly, the Appellant states that the Applicant's response to requests for further information from the Planning Authority were inadequate and therefore the grant of planning permission was not lawful.
Fifthly, with reference to conservation designations, the Appellant states that as the lands in question are a Special Protection Area under the Birds Directive the lands are supposed to be designated a Special Area of Conservation under the Habitats Directive. With respect to this issue the Appellant draws the Board's attention to a letter from D??chas to the Planning Authority dated 10/7/1997 which is quoted in full in the appeal document. With reference to this letter the Appellant finds it strange that no detailed maps of the site were submitted to the Planning Authority. The Appellant also quotes a letter dated 30/3/2000 in response to a Planning Authority letter dated 20/1/2000 which is quoted in the appeal document to which I draw the Board's attention. The Appellant finds this strange as D??chas would know that the Planning Authority had a two month limit to decide the application. The Appellant has emphasised certain parts of the letter namely that the chief value of the site lies in the presence of numbers of corncrake and the role of the site as an important breeding area of the species and that the proposed development would, if allowed to proceed, have a significant negative effect on the environment causing disturbance in particular to the nesting corncrake. The Appellant emphasises a section of the letter that states the corncrake is a globally endangered species and that a full assessment should be undertaken to assess the conservation implications of the proposed development.
The Appellant further reproduces a letter in the appeal submission from D??chas to the Planning Authority on 2/5/2000 and again emphasises certain sections which underline the importance of the area with respect to its birdlife. Further, the Appellant transcribes a letter from D??chas to the Planning Authority dated 7/9/2000 and also a minute dated 1/11/2000 and a memorandum dated 13/6/2000 from D??chas staff which are reproduced in full in the appeal document and to which I draw the Board's attention. Also included in the appeal submission is a transcription of a site visit document dated 21/7/2000 and with reference to this last mentioned document the Appellant states that contradicts the previous documents in terms of assessing the importance of the site as a habitat for corncrake in that the last mentioned document does not feel the site would form a good habitat whereas the previous three letters mentioned did. The Appellant, drawing on the contents of the aforementioned letters, states that the site is, according to D??chas' definition, a Special Protection Area under the Birds Directive and that if the Planning Authority were to perform an appropriate assessment rather than rely on the assessment contained in the site visit dated 21/7/2000 a different result would have been forthcoming.
Sixthly, with reference to the issue of flooding, the Appellant states that the site is located within a flood plain and any development on the site would not be sustainable and hence cannot be considered proper planning and development of the area. The Appellant states that development on flood plains would cause displacement and consequent higher flooding elsewhere.
Lastly, with reference to sewerage, the Appellant states there is no evidence that sewerage generated by the proposed development would be disposed of in accordance with the Urban Waste Water Directive and that waste from the proposed development if not treated to full tertiary standards will add to the deterioration of the River Shannon and in particular Lough Derg.
The Appellant adds that the recommendations of Judith Kelemen were not forwarded to the Planning Authority and consequently are not included in the conditions, and that Judith Kelemen was particularly concerned with the light pollution from the three-storey blocks of flats rather than from the street lighting. The Appellant concludes that it is not possible for the Board to grant permission for the development without the appropriate assessment, an EIS being submitted and an assessment under the EIA directives being carried out.
4.3 Appeal by Birdwatch Ireland
The Appellant in summary objects to the proposed development on the following grounds: no EIS was prepared for the proposed development as is required; the proposed development will have a significant adverse impact on a corncrake breeding habitat and on the wandering waterfowl using Big Meadow; the Athlone Urban District Council Development Plan was changed without an appropriate assessment of the implications on the birdlife of the area; and that a planning precedent was established by the 1999 refusal of a similar development.
The Appellant states that Birdwatch Ireland is a registered charity with over 6,000 active members and has been active in bird conservation and planning issues for over 30 years. The Appellant states that Birdwatch Ireland has also been actively involved in the protection and management of the Shannon Callows which is one of the most extensive flood plains in western Europe, recognised by its selection as a proposed Special Protection Area and as a candidate Special Area of Conservation. This importance, states the Appellant, is also reflected in the recognition of the area as an Area of Scientific Interest in 1989 and as a Natural Heritage Area in 1995. The Appellant states that in winter the Shannon Callows holds large numbers of migratory waterfowl such as Whooper Swans, Mute Swans, Wigeon, Golden Plover, Lapwing and Black-tailed Godwit.
In addition the Appellant states that the Shannon Callows accounts for over 40% of the national total of breeding corncrake which is a globally threatened species. With reference specifically to Big Meadow the Appellant states that a census in 1989 recorded six singing males and that the proposed development site is partially located within this area. The Appellant states that the proposed development site which is not regularly mowed provides excellent cover for corncrake at critical breeding times and during the weaning of the young chicks, and as such it is an integral part of the Big Meadow. The Appellant states that a disturbance of the size and nature of the proposed development would result in an increase in the number of people using Big Meadow and would impact upon approximately 6% of the total numbers of singing males in the Shannon Callows in the form of damage to nests and the loss of both chicks and adults.
The Appellant draws the Board's attention to the Corncrake Grant Scheme which operates in the Big Meadow area and since 1993 has expended IR£409,595 in order to protect the area as a breeding area for corncrake. With reference to over-wintering waterfowl, exact figures are not available states the Appellant, because of the difficulties in accessing parts of the Callows during winter without disturbing the birds, but that the Big Meadow is of national importance in this respect. The Appellant states that the appeal site has been raised by past in-filling and consequently does not flood as deeply or for as long as the rest of Big Meadow but it does flood every year. Further, the Appellant states that the site would support breeding corncrake and that although part of the site has been degraded by unauthorised dumping of rubble, it is still possible to restore this part of the site fully.
With respect to the status of the proposed development site, the Appellant states that the site is partially within the proposed SPA due to the regular occurrence of breeding corncrake and is also located within the Shannon Callows Important Bird Area under Birdlife International's list of Important Bird Areas in Europe. The Appellant states that the proposed development site is within the Shannon Callows candidate Special Area of Conservation also. The Appellant states that no Environmental Impact Statement was lodged with the planning application despite being required for a proposed project at this site under sections 27(1) and (2) of the European Community's (Natural Habitats) Regulations, 1997 (S.I. No. 94 of 1997) and under Article 6.3 of the Habitats Directive. As no EIS was submitted, the Appellant is of the opinion that planning permission should be refused.
The Appellant states that the proposed development would have a significant adverse impact on this site with a direct loss of corncrake breeding habitat and waterfowl habitat and disturbance imposed by increased human activity and light pollution. The Appellant states that given the globally endangered status of the corncrake and the current low population in Ireland, this is unacceptable and if permission is granted it will be a breach of the Natural Habitats Regulations, 1997, the EU Birds Directive and the EU Habitats Directive. The Appellant concludes therefore that planning permission should be refused due to the significant adverse impacts the proposed development will have on this important site.
The Appellant states that prior to the proposed development the site was zoned for primarily commercial use and that the material contravention re-zoned the site to residential but that under Article 6.3 of the EU Habitats Directive, any change to a Development Plan is subject to an assessment given the likely significant effects of the change on an important bird site. The Appellant states that the conditions of Article 6.3 were not met prior to changing the Development Plan which is a breach of the EU Habitats Directive.
With reference to the position of D??chas, the Appellant states that initially D??chas recommended that planning permission be refused and stated that almost 40% of the proposed development site was within the proposed SPA. The Appellant states that the consequent withdrawal of the objection by D??chas (letter to the Planning Authority dated 4/9/2000) stated that the site did not contain any important habitat, and that the conservation value of the area was not sufficient to warrant its future designation as a proposed or candidate conservation site which the Appellant states is a strange sequence of events given the financial investment of D??chas into the corncrake conservation scheme for Big Meadow.
With reference to the issue of planning precedent, the Appellant states that there is no housing development within or adjacent to the proposed SPA and that a previous application for a housing development (Ref. 3831/99 - copy of decision and location plan appended to this report) was refused by the Planning Authority and one of the two reasons for refusal was that the development was within and would adversely affect the integrity of the proposed SPA contrary to the European Community's (Natural Habitats) Regulations 1997. The Appellant states that planning permission for the current application should be refused on the same grounds.
The Appellant has attached a location map of a census of male corncrakes in the Big Meadow 1993-2000, a map of the proposed SPA and the candidate SAC relating to the area, an article on the Distribution and Conservation of the Corncrake in Ireland 1993-1998 and also a report by the Department of Arts, Heritage, Gaeltacht and the Islands dating from 1998 entitled "First National Report on the Implementation of the Convention on Biological Diversity in Ireland". These attachments to the appeal give background information on the designated status on the site, birdlife habitats, the corncrake Grant Scheme and the River Shannon Important Bird Area, which should be noted by the Board.
5.0 OBSERVERS' SUBMISSIONS
5.1 Submission by Athlone Docks Management Limited
The Observer represents the owners of the apartment development known as Shannon Weir, adjacent to the proposed development. The Observer states that a traffic engineering analysis of the proposed development in relation to the existing Shannon Weir development should be carried out and should refer to the associated effects on the access road networks in the surrounding area. The Observer submits that the proposed development stands independent of Shannon Weir and that vehicular access for the proposed development should be via Deer Park Road and not through Shannon Weir which is predominantly laid out as a car park to serve Shannon Weir and not as a through roadway. The Observer concludes that public roadways should be served by public footpaths in accordance with the Department of the Environment Guidelines for Housing Estates.
5.2 Heritage Council Submission
The Heritage Council write in support of the appeal submitted by Birdwatch Ireland and state that in 1996 the Shannon Callows were designated as a Special Protection Area (S.I. 305 of 1996) but due to a clerical error, substantial portions of the Callows in counties Westmeath and Roscommon were excluded from the Order and that the site of the proposed development was never actually designated as an SPA. However the Observer is of the opinion that the site should be included within the SPA and, as a result, development proposals within this designation should be the subject of an Environmental Impact Assessment. The Observer points out that even in the absence of formal designation Article 6.3 of the Habitats Directive provides for an EIA being carried out given the close proximity of the site to the designated area. With reference to the conservation value of the site, the Observer states that it is essentially related to its use by corncrake which is a globally threatened species and whose numbers have declined dramatically in recent decades. The Observer states therefore that the habitat provided by sites such as the Big Meadow is vital for the successful conservation of this species and while the Habitats Directive does not preclude development within an SAC it does require that a comparable area of suitable habitat be created should the proposed development be allowed to proceed.
6.0 FIRST PARTY RESPONSE TO THIRD PARTY APPEALS
The response by the First Party to the Third Party appeals is prefaced by a description of the location and zoning of the site, the adjoining development to the north (Shannon Weir) and a history of the pre-application submission and determination of the application by the Planning Authority. The Applicant has responded firstly to the appeal submitted by Friends of the Irish Environment, secondly to Birdwatch Ireland and thirdly to James P. Shannon, and this is the order in which they are addressed below.
6.1 First Party Response to Appeal by Friends of the Irish Environment
Firstly, with reference to zoning of lands subject to flooding and the claim by the Appellant that this is unreasonable, the First Party responds that there are several successful developments which have been carried out on lands previously subject to flooding including the Golden Island Shopping Centre across the River Shannon from the proposed site. The First Party submits a report by Michael Punch and Partners, Civil Engineers (Attachment 9) which states that the loss in storage capacity as a result of the proposed development is "absolutely insignificant relative to the significant flood storage capacity of the River Shannon and its associated Callows".
With reference to the Appellant's claim that an EIS was required for the proposed development the First Party responds that a detailed environmental assessment in relation to the impact of the proposed development on the proposed SPA was carried out by Dr Judith Kelemen and Mr. Patrick Warner of D??chas and that these reports suggest that the proposed development would not be detrimental to corncrake conservation measures, providing fences and light pollution mitigation were addressed in the conditions attached to a grant of permission.
With reference to the Appellant's claim that an inadequate response was made to the request for additional information by the Planning Authority, the First Party responds that these queries were dealt with in full in a meeting with the Town Clerk and Town Engineer on 20/1/2000 and the subsequent letter of 10/2/2000.
With reference to the Appellant's claims that the lands are an SPA under the Birds Directive and are supposed to be designated an SAC under the Habitats Directive, the First Party responds by quoting a letter from D??chas to the Planning Authority dated 7/9/2000 which states that "the site is not within any proposed or candidate conservation area. The review also established that the site did not contain any important habitat and that the conservation value of the area is not sufficient to warrant its future designation as a proposed or candidate conservation area".
With reference to the issue of sewage disposal, the First Party refers to the report by Michael Punch and Partners, Civil Engineers which states that "the proposed foul sewerage disposal is via a gravity sewer connection directly to the local authority foul sewerage system adjacent to the site. We understand that the local authority treatment plant has adequate capacity to accommodate the relatively small volumes of domestic waste that will be generated by the proposed development".
6.2 First Party Response to Appeal by Birdwatch Ireland
The First Party denies that the appeal site lies partly within the Shannon Callows and states that the nature of the appeal site is different to the wet meadow communities found in the Callows as confirmed by D??chas. Accordingly, the First Party argue that contrary to the Appellant's claims otherwise, the site does not constitute a good habitat for corncrake. The First Party argues that should the development proceed disturbance to corncrake's breeding in the Big Meadow would be minimal as a 2 metre high wall between the development and the meadow as conditioned by the Urban District Council would be erected, and that the foreshore path is outside the control of the Applicant. The First Party points out that the Corncrake Grants Scheme has never applied to the appeal site as the land is not meadow and is unsuitable for harvesting of any kind.
With reference to the designation of the appeal site as an SPA or SAC, the First Party respond that D??chas has not designated the site in either category as the site is not suitable. With reference to the Important Bird Area status, and with regard to the Appellant's reference to the case of the EU Commission -v- the Netherlands, Case C-3/96, the First Party states that this ruling does not, as stated by the Appellant, require Ireland to designate all IBAs as SPAs. The import of the case, state the First Party, is that the designation of IBAs/SPAs needs to be based on scientific criteria, which the Government of the Netherlands had failed to do. Further, the First Party states that the appeal site is not suitable for designation and would be contrary to this ruling if the lands were designated.
The First Party state that contrary to the Appellant's claims, D??chas have concluded that the proposed development would not result in the loss of habitat for the corncrake or any other species and would not have any significant impact on the nearby habitat. The First Party state that D??chas did not initially object to the proposed development but only after the appearance of a map of the proposed SPA did they object, an objection which was later withdrawn after detailed scientific examination of the circumstances.
With reference to planning precedent, the First Party states that the Appellants are correct in stating there is no housing development within the proposed SPA but incorrect to say there are no housing developments adjacent to the proposed SPA. The First Party lists several developments in Section 7.2.12 of the response document, to which I draw the Board's attention. The First Party states that the proposed development is approximately 25 metres away from the proposed SPA.
6.3 First Party Response to Appeal by Mr. Shannon
The First Party notes that an original objection by the Appellant to the proposed development on the grounds of visual impact was not repeated in the grounds of appeal, as this concern was objected by the Urban District Council. With reference to the issue of flooding, the First Party states that this has been covered in a previous response, as have issues relating to the corncrake.
With reference to the right of way issue, the First Party responds that the gate erected and referred to by the Appellant was placed there to prevent unauthorised dumping at the request of the Urban District Council and that there has never been a public right of way across the site but only a private right of access to the Shannon Queen Bar, which could have been mistaken for a public right of way. The First Party refers to attachment 4 of the response document, to which I draw the Board's attention.
With reference to the level of car parking available to serve the proposed development, the First Party states that the Development Plan requires 97 no. spaces and the development provides 107 no. spaces plus 20 no. public car parking spaces, as required by Condition No. 10, which will more than satisfy Development Plan requirements.
Finally, the First Party states that access for emergency vehicles will be in compliance with Local Authority and Building Regulation requirements. In addition, the First Party states that the Athlone Traffic Study 1993 (McCarthy & Partners) which examined in detail the flow of traffic to and from the designated area, which includes the site of the proposed development, and that recommendations in support regarding traffic improvements have already been implemented in part.
7.0 OTHER RESPONSES TO APPEAL SUBMISSIONS
7.1 Planning Authority Response to Appeals
The Planning Authority respond by enclosing letters from D??chas dated 27th July and 7th September, 2000, which they state indicate the conservation/preservation status of the site as determined by the acknowledged expert State Authority in these matters, and that their concerns have been addressed by Condition Nos. 18, 19 and 20 of the Council's decision. The documentation from D??chas states that the appeal site is not within any proposed or candidate conservation site and that the site does not contain any important habitat and its conservation value is not sufficient to warrant future designation as a proposed or candidate conservation site. The documentation further states that the development proposed will not have a significant negative impact on any important habitat or conservation site but concerns regarding possible adverse effects on corncrakes are noted. The documents state that D??chas will withdraw its objection to the proposed development providing that the site is screened for light pollution and if a people/pet proof fence is erected to cut-off and prevent access to/from the Big Meadow.
7.2 Response of Friends of the Irish Environment to Appeals
A response was e-mailed on 19th January, 2001, which states "I am unable at this time to make a proper response to the appeal as I have yet to receive information sought under access to information on the Environment Regulations which was requested on 29th November, 2000. I have instructed by solicitors to persue this request and when the information is to hand I will be mailing a response". The Board should note that no written response was received subsequently other than a response to a Section 9 Notice.
7.3 Responses of James P. Shannon to Appeals
With reference to the appeal by Friends of the Irish Environment, Mr. Shannon states that information from D??chas pertinent to commenting on the appeal by Friends of the Irish Environment was not available in time for his response to the Board but the Appellant feels that as the information was withheld by a party in the dispute, a copy of the reply should be available to the Board before it makes a decision. The Appellant attaches a letter from D??chas explaining the delay in response.
In response to the appeal by Birdwatch Ireland, Mr. Shannon states that he has had personal experience of hearing corncrakes within close proximity to the southern boundary of the appeal site and encloses a location map of a possible location for the singing corncrake(s). The Appellant states that his observations are non-scientific and cannot precisely locate nesting sites but that the Appellant did hear on several occasions corncrakes in close proximity to the appeal site.
8.0 RESPONSES TO FIRST SECTION 9 NOTICE
A Section 9 Notice was circulated by the Board to all parties to elicit comments regarding an observation from the Heritage Council received 17th January, 2001, the First Party response to the Third Party Appeals received 12th January, 2001, and the response to the appeals by Athlone Urban District Council dated 16th January, 2001. Responses were received from the First Party, Mr. Shannon, Friends of the Irish Environment and Birdwatch Ireland.
8.1 First Party Response
The First Party, in response to the Urban District Council submission, states that "we have always consulted with and co-operated with in full with Local Authority requirements. We will continue to adopt this approach in complying with the conditions of the planning permission and the requirements of D??chas in relation to the proposed development".
With respect to the observation submitted by the Heritage Council, the First Party respond that the Heritage Council are not correct in stating that the appeal site should be included within the SPA as this is contrary to the opinion of D??chas and their scientific assessment of the site. Further, the First Party states that the Heritage Council's statement that an EIS is required for the development is not borne out by D??chas as an EIS would be required should the development be likely to have a significant effect on a conservation site as D??chas have concluded that the proposed development "will not have a significant negative impact on any important habitat or conservation area". With reference to the creation of a suitable habitat elsewhere in lieu of the appeal site, the First Party state that as the site is not a suitable habitat in itself it should not be replaced elsewhere. The First Party states that the inclusion of the appeal site within a designated area would be contrary to the EU Habitats Directive as the appeal site is unsuitable for designation purposes. The First Party state that D??chas is the body that has ultimate responsibility and expertise for the implementation of conservation measures and that they have, after assessing the site, concluded that there will be no significant impacts on the wildlife of the area and that while individuals and groups which are keen to see wildlife protected have a multiplicity of opinions as to how this is achieved, in some cases, the First Party states, this constitutes being anti-development per se.
8.2 Response by Mr. Shannon
The response from Mr. Shannon relates to the submission from Athlone Urban District Council and the Appellant states that Condition Nos. 18, 19 and 20 of the permission do not mitigate the light pollution which would disturb nesting birds in the area and that the Planning Authority should not have granted permission when this condition could not be met. The Appellant also refers to the construction of a wall and refers to a report by Dr. Judith Keleman, Regional Ecologist with D??chas, which is attached to the response document. The Appellant states that a wall to be effective should run from the river to the road to prevent access of humans and pets to the meadow but that the wall as conditioned in the permission only covers about 40% of the distance from the river to the road and the Appellant does not understand how D??chas consider that this wall meets their requirements.
8.3 Response of Friends of the Irish Environment
The Appellant responds to the submission by the First Party and reiterates the grounds of appeal in stating that building on a floodplain is unwise and the landfill on the appeal site does not appear to have planning consent. The Appellant states that the infilling has destroyed the vital habitat of the corncrake, which is an endangered species, and that for the application to be valid it must be for retention rather than permission. The Appellant refers to the Santona Marshes decision of the European Court, which states that any habitat of an endangered bird is a Special Protection Area regardless of whether or not it has official designation. The Appellant also states that there is uncertainty as to the capacity of the wastewater treatment plant and the sewage network, which has not been properly assessed by the Applicant. In addition, the Appellant states that a proper environmental assessment was not carried out by the developer as two site visits during the summer does not establish the importance of the site as a winter feeding site for listed birds. Further, the Appellant states that this corncrake habitat has been deliberately destroyed by the Applicant by dumping and that the issue of whooper swans on the site has not been addressed.
8.4 Response of Birdwatch Ireland
In relation to the First Party response to the Third Party Appeals, Birdwatch Ireland state that their credentials as acknowledged experts in management and conservation of corncrakes is undisputed and state that Birdwatch Ireland is the Irish partner of Birdlife International and receives support and funding from the UK based Royal Society for the Protection of Birds (RSPB). The Appellant also states that D??chas has recently agreed to fund research into corncrakes on the Shannon Callows which further acknowledges the expertise of Birdwatch Ireland in this area. Therefore, the Appellant states that the assessment of Birdwatch Ireland of the Big Meadow, including the development site and its suitability for breeding corncrakes, is accurate. The Appellant states that "the only reason we are opposed to the proposed development is because of the negative impact it will have on the corncrake and wintering waterfowl". The Appellant states that the appeal site is part of Big Meadow and that past infilling has altered the vegetation and hydrology of the site but does not change the fact that the site does flood regularly and does support wet grassland communities.
The Appellant confirms to the Board that the corncrake located in 1999 by Birdwatch Ireland staff is within the appeal site on the edge of the development and not 10 metres away as claimed by the First Party. The Appellant asks the Board to note that calling corncrake is male and that female corncrakes and nests are located within 250 metres of the singing male and that all the development site is within 250 metres of the recorded calling male.
The Appellant disagrees with D??chas on the issue of whether or not the appeal site can support the good corncrake habitat and submit a letter from Dr. R.E. Green, University of Cambridge, confirming the suitability of the site as a corncrake habitat. The Appellant states that the site is not included in the Corncrake Grant Scheme which is designed to delay the mowing of meadow due to the fact that the site is not cut and does not, therefore, require the intervention of the scheme. The Appellant states that the uncut nature of the site and its regular flooding render the development site a suitable habitat for corncrakes.
The Appellant adds, as stated in the original appeal submission, that an Environmental Impact Statement is required due to the qualification of the site as a Special Protection Area and its location adjacent to a proposed SPA and candidate SAC. The Appellant further states that the D??chas assessment of the ecology of the site does not fulfil the requirements of the EIA Regulations. The Appellant believes that the development will result in the loss of habitat for the corncrake and have an impact on habitats nearby.
With reference to the developments listed by the developers, the Appellant encloses a sketch map showing the location of each of these developments, to which I draw the Board's attention. The Appellant makes the point that there are no housing developments on the River Shannon side of the Athlone to Clonown Road (i.e. there are no houses to the south and east of this road between the corner known as McQuaids Bridge and the Crossriver Bridge). The Appellant states that the developments as cited by the First Party have a minimal potential to impact on breeding corncrakes in the Big Meadow and that none of the developments provide a planning precedent which would suggest that the current proposal should be granted permission.
9.0 RESPONSES TO SECOND SECTION 9 NOTICE
A Section 9 Notice was circulated by the Board to all parties inviting comments on a letter from D??chas, The Heritage Service dated 16th July, 2001. Responses were received by the First Party, Mr. Shannon and Birdwatch Ireland. The response by Friends of the Irish Environment was received too late and was therefore invalid.
9.1 Summary of D??chas Letter
The letter from D??chas was in response to a letter dated 3rd July from An Bord Pleanála requesting clarification of the conservation status of the site. Maps are enclosed with the response and the Board's attention is drawn to these maps. D??chas, in their letter, state that the southernmost portion of the proposed development site is contiguous with the northern boundary of the candidate SAC and proposed SPA. The letter states that following an initial assessment of the proposed development D??chas considered that the proposed development would have a negative impact on the middle Shannon Callows SPA and on 30th March, 2000, notified the Urban District Council of its objection to the proposed development and recommending that planning permission be refused. The letter continues that on 5th April, 2000, the Urban District Council sought clarification of the boundaries of the proposed SPA in relation to the proposed development and it was discovered that there was an error in the original statutory designation of the proposed SPA which was incomplete. Thereafter, D??chas carried out a more comprehensive review of the conservation status of the development site and concluded that as the site is raised above normal winter flood levels and does not contain callow grasslands or provide a good habitat for corncrakes, and that it is not an integral part of the Shannon Callows, it was not, therefore, to be included in either the proposed SPA or the candidate SAC on scientific grounds. The letter states that the appropriate boundary for the sites is a deep drain running down to the Shannon which lies to the south of the southernmost portion of the development site. The letter thereafter states that D??chas carried out a review of the proposed development and concluded that it would not have a significant negative impact on the adjacent proposed SPA provided concerns were addressed about possible adverse effects on corncrakes from the future usage of the development. These concerns, D??chas state, comprise possible disturbance to these fauna as a result of human and domestic pet activity and from light from the proposed dwellings in a development of this size. The letter states that D??chas recommended mitigation measures to the Urban District Council and stated on 7th September, 2000, that if these measures were taken the objection to the proposed development could be withdrawn. A site synopsis of the River Shannon Callows is appended to this letter, to which I draw the Board's attention.
9.2 First Party Response
The First Party responds that D??chas do not have any objection to the proposed development provided that domestic pets and excessive light pollution be mitigated against. With reference to the issue of pets, the First Party states that the previous development carried out on the adjoining lands (Shannon Weir) has a specific condition in the lease that pets are not permitted in the development and that the management company have a proven track record of enforcing this. In addition, the management company have also obtained planning permission, states the First Party, to build a low wall/rail to further secure the existing development from unauthorised access, including animals. The First Party states that there is no objection to providing a barrier to prevent the movement of animals and people from the development to the meadow as required by the Urban District Council and that Condition No. 18 provides for a 2 metre high masonry wall to be constructed. The First Party suggests that a low wall and rails/grilles could achieve the required result in a more satisfactory visual manner and requests that this condition be altered to allow this.
With reference to the issue of light, the First Party states that this light pollution concern relates to external floodlighting and not to the low wattage lighting from windows in a building. The First Party proposes to omit all public exterior lighting at the southern end of the development as required and to meet all D??chas and local authority requirements for mitigation measures. The First Party submits an e-mail from Dr. Judith Kelleman, stating that the 2 metre high masonry wall as required by Condition No. 18 satisfies the requirements of D??chas and will also act as a light barrier. The e-mail states that light pollution relates to the street/outdoor lighting (not to light from windows) and that suitable shields should be used to stop direct light flooding the adjacent callow land and to the direct the light of the outdoor lamps onto the proposed development as specified in Conditions 18 and 19 of the planning permission.
9.3 Response of Mr Shannon
The response of Mr Shannon includes copies of documents obtained under the Freedom of Information Act from D??chas which the Appellant states make it clear that the review carried out by D??chas did not establish that the development site is raised above normal winter flood levels and that conditions considered necessary to conserve the wildlife were not included as conditions on the grant of permission because they could not be implemented. Further, the Appellant states that D??chas recognised that the Birdwatch Ireland Local Officer, who is opposed to the proposed development, has the most corncrake expertise in the country at this time and that at least two officers in D??chas are of the opinion that the original objection should not be withdrawn.
9.4 Response of Birdwatch Ireland
The Appellant states that the proposed Shannon Callows SPA was surveyed in 1995 for designation in 1996 and it is the opinion of Birdwatch Ireland that this 1996 SPA boundary should be considered by the Board to be the Shannon Callows SPA boundary. The Appellant states that it was an administrative error that the SPA was not designated and that there appears to be no change in the ornithological information which merits a change in the status of the additional area which covers part of the proposed development site.
The Appellant refers to a memo dated October 10th, 2000, from David Norris of the Bird Research Section of D??chas to Dr. O'Keeffe and Dr. Craig of D??chas where the rationale for including a number of additional areas in the Shannon Callows SPA is clearly set out. The Appellant states that the site of the proposed development and a number of similar extensions were selected to provide dry early cover for corncrakes when the flood receded late. The Appellant states that it is scientifically recognised that corncrakes require early cover to ensure their protection and survival before summer hay meadow growth. The inclusion of the proposed site is, therefore, according to the Appellant, both reasonable and scientifically sound. The Appellant further states that the coincidence of a boundary review with a development application sets an unsatisfactory precedent and calls into question the scientific integrity of any decision made in this context.
The Appellant states that the appeal site does flood each winter, just not to the same depth and for the same length of time as the rest of the Callows and it is probable that due to the flooding the vegetation in the appeal site area remains suitable for corncrakes. The Appellant states that such areas are also less likely to be covered during occasional summer floods and the site does contain habitat which is suitable for use by corncrakes, especially as early or late cover. The Appellant makes the point that the area lies within the 250 metre limit for nesting corncrakes using the meadow and the Appellant queries the definition by D??chas of what constitutes a good corncrake habitat. The Appellant argues that the appeal site is one of the areas that is an integral part of the Shannon Callows ecological system and the site may provide a nesting habitat for corncrake, further justifying its inclusion as an integral part of the proposed SPA. The Appellant states that D??chas has not presented any scientific evidence to exclude the site from the proposed Shannon Callows SPA but that Birdwatch Ireland has provided alternative scientific grounds for inclusion of this area in the proposed SPA.
The Appellant and Observer parties have raised both the principle of development on the site and the actual development proposed as issues in their appeal and observation documents. In summary, the main planning issues arising are as follows:-
¬? The conservation status of the site.
¬? The requirement for an EIS.
¬? The issue of flooding.
¬? Fauna habitat.
¬? Access, traffic and parking issues.
These headings are the main headings under which I will assess the proposed development and other minor points raised by the Appellant and Observer parties, the Planning Authority and the First Party, which are linked to these main issues, will be referred to in the relevant sections below. I can confirm to the Board that I have inspected the site and reviewed all documents on file in order to carry out the assessment of this appeal.
With reference to the conservation status of the site, some of the Appellants were of the opinion that approximately 40% of the appeal site was located within the proposed SPA and the candidate SAC. On this premise, it was argued that under Sections 27(1) and 27(2) of the European Communities (Natural Habitats) Regulations, 1997, and under Article 6.3 of the Habitats Directive an EIS was required. Given the uncertainty of the proposed SPA and candidate SAC boundaries, I sought clarification from D??chas, the Heritage Service, whose response was received on 16th July, 2001. Enclosed with the response are maps which delineate the proposed SPA/candidate SAC/proposed NHA at Big Meadow, Athlone. I draw the Board's attention to these maps on file, which clearly indicate that the red line boundary of the appeal site is outside the area intended for the conservation designations. The Board should be aware that the candidate SAC and proposed SPA boundary of 1995/1996 included the south-east portion of the site covering an area of approximately 40% of the site. This additional area was removed following the D??chas Review in 2000.
Whether or not the appeal site is a suitable habitat for corncrake as stated by several Third Party Appellants is, in my opinion, open to debate. It may be that the higher ground level does assist the corncrake in the breeding process, as stated by Birdwatch Ireland but D??chas have stated that the appeal site is not a suitable habitat for corncrake. In any event, as there is no conservation designation propose for the appeal site, it is my interpretation, contrary to the Third Party Appellant's claims otherwise, that an EIS is not required for the proposed development. The development site, as stated previously, is outside any conservation designation (proposed or candidate) and, as such, the provisions of Section 27(1) and 27(2) of the European Communities (Natural Habitats) Regulations, 1997, do not apply. The provisions (which are copied onto the appeal file for the Board's attention) clearly apply to developments within a designated conservation site which the appeal site clearly does not fall within. Section 27 allows for developments within conservation sites but which are not directly connected with, or necessary to the management of, the European site but which would be likely to have a significant effect thereon, either individually or in combination with other developments to be appropriately assessed in terms of implications for the site. An appropriate assessment is an EIA and this is stated in Section 27(2) of the Regulations.
Birdwatch Ireland and The Heritage Council appear to imply that even if the appeal site is not within a proposed or candidate conservation site then, given the appeal site's proximity to the proposed conservation site, an EIS should have been submitted. Whilst understanding the motivation of these parties to protect the environment and in particular the corncrake habitat, which is adjacent to the appeal site, I cannot find any provision in the legislation that states that developments in close proximity to conservation sites should be the subject of an EIA.
Reference was made to Article 6.3 of the Habitats Directive (this is copied onto the file for the Board's attention) which states that "any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public". My comments relating to the European Communities (Natural Habitats) Regulations, 1997, apply towards Article 6.3 of the Habitats Directive (Council Directive 92/43/EEC of 21st May, 1992) in that Article 6.3 applies to developments within conservation sites and not to sites in close proximity or adjacent to conservation sites.
Reference was made to two judgements of the European Court of Justice, the first of which was the Commission of the European Communities versus the Kingdom of Spain (Case C-355/90) where Birdwatch Ireland stated that this case ruled that any site which qualifies for SPA designation must be regarded as thought it is an SPA regardless of whether or not it has been designated by the Member State. Having read the judgement (a copy is on file for the Board's attention) I would agree with the interpretation of Birdwatch Ireland that even if an SPA is not officially designated by a Member State the protection measures appropriate to an SPA apply to the site. However, as previously stated, the appeal site lies outside any conservation site of either proposed or candidate status. There is also a reference by Birdwatch Ireland to C-3/96, Commission of the European Communities versus Kingdom of the Netherlands which, the Appellant states, requires Member States to designate all important bird areas (IBA) as SPAs. On reading the judgement (a copy is attached to the file for the Board's attention) I find that this is broadly correct, although the case revolved mainly around the number of SPAs designated and area covered by such designations by the Netherlands Government being less than the number and area of IBAs and it ruled that the Netherlands Government had failed in the implementation of Article 4(1) of Council Directive 79/409/EEC (Birds Directive) in this respect. However, as with the previous case, I would again comment that the appeal site is located outside any conservation site proposed for designation and that the rulings of the European Court of Justice cited above do not apply in this instance......
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