Protected Areas

We are aware of media reports that you have agreed to permit forestry developments in sensitive areas occupied by the hen harrier without any suitable assessment.
Martin Cullen, TD,
Minister for the Environment,
Custom's House,
Dublin 1,
21 April, 2003 By fax only: 01 8788640

Re: Hen harrier and forestry assessment

Dear Minister Cullen,

We are aware of media reports that you have agreed to permit forestry developments in sensitive areas occupied by the hen harrier without any suitable assessment. We have been unable to find any information on your Department's website in his regard. We would, therefore, be grateful if you could confirm or deny the accuracy of these newspaper reports.

The reported proposal to allow forestry plantations of up to 20 hectares without surveys for hen harriers is likely to bring about a situation where large areas of habitat within the existing range of the hen harriers are made unsuitable for this endangered species. In addition, actual nest sites could be destroyed. This is clearly a failure to implement the necessary protections envisaged by the Birds' Directive.

The recent Reasoned Opinion of the European Commission to Ireland in relation to the Birds Directive places this proposal to allow unsurveyed forestry plantations in a context of ongoing failure by the Irish Authorities to implement this Directive in the areas concerned.

Unless you can assure us that the provisions of the Birds Directive and the September 19 1999 Judgement against Ireland under the EIA Directive are complied with, we see no other option that to make a formal complaint to the European Commission.

Yours, etc.,


Tony Lowes
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 [First Submission]
See Also Our Second Submission


Runai Chontae,

Comhairle Chontae Liatroma,

Carrick on Shannon,

Co. Leitrim

10 December, 2000


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


A Chairde;


Thank you for your letter of 29 November enclosing the Environmental Impact Statement for the above application and requesting a fee of £9.00, which we attach. We also acknowledge your letter of 4 December requesting observations on or before 11 December, 2000 and accordingly submit our initial submission which is a request for you to refuse the application as located and designed.


We have examined the Environmental Impact Statement provided with this application and identify the critical issue as that of the location in a flood plain of the Shannon River, a fact omitted from the non-technical summary.


SPATIAL PLANNING

FLOODING

The EIS suggests the site is a "former" flood plain of the River Shannon, an "area of natural reclamation" [Existing Uses on Site, 2.4]. In "Site Topography" [13.1.1], the same theme is expressed when the authors write that the "site historically floods". The fact that the site was completely "inundated" in December, 1999, is explained by "this appears to have been a 50 year high water level".


Elsewhere in the EIS it becomes clear that there is nothing "historical" about the site's existing use as a flood plain. "The surface of the site is actually covered by water for much of the year". [Hydrology and Water, 14.3.1]. In "Existing Uses on Site" [2.4], the author quoted above having suggested the site is a "former" flood plain finishes the same sentence by noting "it is still prone to flooding during severe weather conditions".


In this context, the main portion of the site is described as wet grasslands which "contains seasonally flooded grasslands similar to those associated with callows as described by Heery (1993)." The site can thus be defined as Shannon Callows, an important and unique habitat in Ireland. "The reed beds on the site support spawning, feeding, and shelter for bream, tench, perch, roach, pike, and salmon" [Flora and Fauna, 12.3].


While the EIS states that "the site and its im- Mediate environs are not recorded as containing and EC natural habitats type or community or natural interests as directed by Council Directive 92/43/EEC", it is our understanding that the Shannon River is host to the salmon, a fact confirmed in the EIS [12.6, Impact of the Development, "Adjoining Lands"; see also the Habitats Directive, Annex II: Animal and plant species of Community Interest whose conservation requires the designation of special areas of conservation, Salmo salar"].


The Irish authorities have been required by the European Commission and have agreed to add this River and a number of other rivers hosting the salmon to the list of Special Areas of Conservation under the Habitats Directive. [Protecting Nature in Ireland: The NGO Special Areas of Conservation Shadow List, a report prepared for An Taisce, BirdWatch Ireland, Coastwatch Ireland, Irish Peatland Conservation Council, and The Irish Wildlife Trust, November 2000; ISBN 1 874189 18 8].


Environmentally the amount of disturbance and siltation of a major Special Area of Conservation, despite the measures specified, will be incalculable if during the 22 month period of construction the site is flooded. The EIS notes the difficulty in protecting water bodies from peaty contamination compared to clays or silts, which are far easier to remove [Soil, 13.1]. Given a combination of ecological and meteorological conditions, such a flooding of the construction site could result in massive fish kills.


This possibility is confirmed in the EIS in "Impact of the Proposed Development": "An increase in suspended solids within the water column can lead to decreased oxygen availability and uptake for the in-fauna, effectively smothering salmon and trout smolts." Yet the Monitoring section of the "Soil" section of the EIS [13.10] states that "no monitoring is considered necessary during the period of development and or following completion with regard to the soil", save inspections of the roads and fuel storage facilities.


While the EIS appears to indicate that the exact method of construction has not yet been agreed [Construction Options, 13.5], because of the flood plain nature of the site all work that must be undertaken under water must be detailed and the possible effects on the environment considered separately. This has not been done.


No details are given for the "significant engineering works which will be undertaken prior to any development taking place in order to render the land suitable for development". No details are given as to the "suitable precautions which will be taken in the design and construction of the proposed scheme to ensure that there is no interference with the flood plain of the River Shannon" [Civil and Structural Aspects 3.8]. Neither Bord na Mona sedimentation traps or floating booms with suspended geotextile membrane curtains, which are "not 100% effective" at the best of times [12.5, Mitigation Measures Proposed] can be expected to cope with the "inundation" in flood conditions of the subject site.


While it is unnecessary here to discuss climate change, there is no doubt that throughout Ireland flooding is an increasing problem and that one of the accepted causes is building on flood plains. Without these areas to attenuate the peak flooding, the actual rise of the river in a flood event will be higher because of displacement caused by developments located on these flood plains. This matter is nowhere examined in the EIS, where the examination of water is confined to its quality.


In fact, the Non Technical Summary argues elsewhere that the site is effectively water logged for much of the year and has little rainfall retention capacity, suggesting that the change in use to a site which is mostly covered in impermeable material and will have no net impact on the contribution of the site to the water on the River Shannon. While it may have no "net" impact, the effective paving of such an extensive site must show a substantial lose in the initial flood attenuation vales of the site and so further contribute to a rise in the initial peak values of the floods downriver.


The section on "Surface Water Drainage" [14.3.5] makes no mention of the flooding at this site. Consequently, it does not address the issue of mitigation and attenuation through outsized pipes or semi porous paving, let alone considering the necessity for attenuation tanks.


The Section of the EIS dealing with the "Inter-relationship between Factors" [23.6] should have exposed a full examination of the relationship between the proposed development on the Shannon and the residents of other towns and villages that might be affected by this development. This section, however, would be unsatisfactory even as a non-technical summary. Barely more than a page, the entire entry for "Water" is: "The proposed development will introduce a significant aquatic element into the site in a controlled manner through the construction of a marina". The local authority would be justified in rejecting this EIS on the inadequacy of this Section alone.


SOIL

While our primary consideration is that of nature protection, it is difficult to read the Geotechnical report [Appendix A] without seriously questioning the choice of site.


Architectural Alternatives [5.4] are concerned only with the alternative design layout proposals for the same site. Examination of Alternatives [6.0] states baldly that "No alternative locations were considered as this site was considered appropriate for the development."


Because of the nature of the soil at the site, the Geotechnical Report suggests that excavation to 4 meters will be required overall. Further, to raise the existing ground level by 1.5 meters 4 to 5 meters of fill will be required. Settlement of 1.0 meter must be expected and that this will extend for as long as eight years, and perhaps as long as 20 years [Construction Options to Limit Settlement, 13.5]. All underground service pipes and sewers, for example, will be subject to such subsidence unless individual piles are driven to support them.


A new sewage pumping station and tank will be installed on the adjacent County Council owned lands. However inadequate given the sensitive location [see below], 12.4 acknowledges the site problems in stating the tank and pumping facilities will be "installed in underground sealed containers, and as such will not be affected by seasonal floods". While this proposal is "subject to further site investigations carried out by the consulting engineer specialist, Dr. Ted Farrell," we would be anxious that no development consent is given to this proposal until a full investigations of the Soil Conditions and their implication for all the elements of the proposed development consent by Dr. Farrell are available for peer group review and public comment.


Why were no alternative locations considered on these grounds alone?


OTHER MATTERS

The scale of the proposal is, further, quite obviously unsuitable for this rural location. The design, said to be based on the traditional river side Mill, is in fact inappropriate and intrusive at this sensitive visual location on the River Shannon where the County Development Plan recognizes that the landscape, which is the major source of income for the area, must be protected. "The River is the Towns most important natural amenity". [See Leitrim County Development Plan, 1997 - 2002, Tourism Goals, Page 8 and The Carrick-on-Shannon Development Plan, 1996-2002, page 4.]


The disposal of sewage from the development will not be subject to tertiary treatment [3.9 Foul Sewer], which must be a requirement of all new developments on the River Shannon, given the clear correlation between the eutrophication of areas like Lough Derg and sewage treated without phosphorous removal. It is the responsibility of the developer to provide this treatment on the polluter pays principal. A pumping station to a secondary treatment station is not a discharge of the developer's obligation to the environment, particularly given the Special Areas of Conservation status of the Shannon River.


Is there in fact a real need for anything like the full extent of this proposal - 750 people, including office workers, 325 car parking spaces - noting particularly that of all the sites examined this one fails to meet the minimum workforce available [Figure 2.5].


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?


The suggestion that "catchment for the development will incorporate a large area including all of Leitrim and Roscommon" only highlights the car-based dependence that follows poor spatial planning consequent on the lack of an overall strategic plan for the Pilot Area Rural Renewal Scheme.


CONCLUSION

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.


We would suggest 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].


Is mise, le meas





Michael D. Higgins, the Minister who permitted the proposal for Visitor's facilities in the Burren beneath Mullaghmore just refused by An Bord Pleanala, came on the telephone the night the decision was announced to join Vincent Browne on his RTE radio Show "Tonight with Vincent Browne". Frank McDonald, the Irish Times Environmental critic, was on the panel and he suggested that Michael D. Higgins - who opposed the project in opposition - did a U-turn on taking office in 1993 by permitting the scaled down version that has now been rejected by the Board.

Read the Decision


See our Observation

Frank: I remember being at a Press Conference in An Taisce's headquarters in Tailor's Hall in March 1991 - which is nine years ago this month - and listening to that wonderful Priest, Father John O'Donohue, who's since got a huge following as a result of appearing on radio and being interviewed on so many occasions about spirituality, He spoke about the Burren on that occasion in such spiritual terms that I remember saying to senior officials in the OPW at that time - nine years ago this month - "You are on a hiding to nothing in relation to this project. You should just cut your loses in relation to this project."

The problem was that the OPW had discovered that there was this pot of European money available which they could tap into and build visitors' centres to beat the band all over the place including Lugalaw in County Wicklow which again was turned down by An Bord Pleanala, Mullaghmore, the Caja FIElds North West Mayo which I think of course is something everybody would approve of but the fundamental failing of all of these schemes was that they were planning to locate the visitors centres right in the heart of the protected landscape that were in public ownership. That was the problem and that was why environmentalists across the Board opposed it for so long and the OPW stuck doggedly to the scheme, through thick and thin, even to the extent of managing to recruit Michael D Higgins, who had been an opponent of the Visitors Centre at Mullaghmore as originally planned and because they had done so much work on the site, not putting up a building as such but doing site development works at Mullaghmore he consented to allowing them to continue

VB: Did a U-turn did he?

Frank: Well, to come up with a scaled down version of the proposal and to go ahead with that but I think probably now in retrospect he would probably regret …

VB: Can we have Michael D on the line - do you regret it, Michael D.?

Michael D: Well I'd just like to deal with what Frank has just said. It would be very inaccurate to say that I was recruited by the OPW to their viewpoint. They certainly would disagree with that. They opposed me most of the time I was Minister in relation to the Mullaghmore project. I suppose the difference between us was that they had dug in with some obduracy and they had agreed to lose…

VB: Go'wan now Michael D, did you do a U-turn on the issue?

Michael D: Now I'll tell you exactly what I did. First of all when I became Minister in 1993 I inherited a situation exactly as Frank said where work had already begun and was quite advanced and Michael Killanin - Lord Killanin - was then Chairman of the Heritage Council and I recall him writing to me expressing his concern that the voluntary Heritage Council hadn't expressed an opinion earlier on when really it was a pity that work would go ahead without a Management Plan for the full area, as you've just been hearing. This was a concept that I have supported. I then halted the project and I had been a critic you remember of the OPW's consultation process - its one of the points on which we fundamentally differed, if there had been an adequate consultation process.

VB: You were against it. You were against the interpretative centre in the beginning. And then you allowed it to go ahead in a modified form.

Michael D: Well now you're right in the last part. I went and agreed to a proposal for a very considerable scaled down project to go ahead but I was explaining to you how that came about. You see having…

VB: Do you think were wrong?

Michael D: In retrospect I think I lost everyway. If I was doing it over again I probably would have stopped it alltogether…

VB: Arragh Michael D were you wrong?

Michael D: I would say probably I was.

Frank: Good on you Michael D, you're an honest politician. That should be recorded.

Michael D: No I just want to finish it out. Its one of the things that's very important to me because I am in a position of knowing a lot of the facts about it and I'll tell you what they were.

As I've said having criticised the OPW presentation of consultation I then set up a consultation process and that involved people who were independent entirely of the two competing groups and they went to households, door to door, and they asked people what did they want and it was they who came up with the scaled down project.

Now please let me finish because this is an important one. When they came up with the scaled down project I had a choice of then casting aside the opinion of those that I'd asked to consult in the absence of previous consultation or of saying I don't care what you have come up with I have now decided that I won't go ahead with anything at all. In retrospect and if I was doing it again now I probably would have done that.

Continuing - which is an interesting one so that people maybe - this is the first time I have had the chance to give the full value - the full story is that Clare County Council's attitude to that proposal when it was submitted to them - I was very worried about one aspect of the ecological reports and that was the rather delicate position of the Burren in terms of the water table. And even though the tertiary system that had been proposed for very limited usage there had been suggested - I said there should be none at all - that we should remove the waste in tanks and Clare County Council more or less said there is no place in our entire sewage system in the entire county into which we will allow these tanks to empty. And I was more or less told informally you can bring them to Galway and empty them there.

And then the next part of it was when Clare County Council refused - many of the people who were refusing were refusing out of a sense of grievance - that they hadn't gotten their big project - and then of course I left office.

When I look back on all of this - I listened with great care to what some people have been saying there - I think what happened is was that people were dislodged - that a body like the OPW was were suddenly going to be released into a tourist led project that had a great deal of European funding and I have to say looking back as well that all theses projects - I doubt if any Minister will ever be able - I don't know what Frank McDonald's view on all of this is but Frank works out of what his own perspective is - but in everything that I try to do of an ecological kind for example the Special Areas of Conservation which I introduced - I signed the Habitats Directive and the National Heritage Areas - I faced incredible opposition…

VB: The programme ends at 11, Michael.

Michael D: Oh no not at all - I'm just saying if anyone thinks any of these issues are going to be easy they are not easy - but that doesn't mean one shouldn't take a stand - I think one should…

Frank: But there was a bureaucratic juggernaut in motion - that's basically what the problem was. The OPW refused to reconsider its position and walked itself into the biggest bureaucratic defeat in the history of the State, not only because An Bord Pleanala had turned down their latest version today but also because as a result of the opposition to the Mullaghmore Interpretative Center went all the way to the Supreme Court.

Michael D: On that issue…

Frank: And on that issue the Court ruled that the State is not exempt from planning control and as a result they have had to apply - as a direct result of Mullaghmore and the arrogance that they showed in Mullaghmore - they have had to apply for planning permission for every little project -and rightly so...

Michael D: I think that one of the things you are illustrating now is how unfair I think it is the decision given recently by the Supreme Court in terms of costs against the litigant in the recent case. I think what the litigants did -when I think back to the whole process - was in the public interest…

=========================

(c) RTE Radio, 2000

Development: Entry Point and Shelter at Crag Road, Gortlecka and Knockaunror. County Clare

The Secretary,

An Bord Pleanala,

Irish Life Building,

Lower Abbey Street, Dublin 1,

13 November, 1998


OBSERVATION ON APPEALS


Local Authority: Clare County Council

Planning Reference: 96/1330

ABP Reference Number 03.108719

Development: Entry Point and Shelter at Crag Road, Gortlecka and Knockaunror. County Clare

Applicant: The Office of Public Works


Observation on Appeals by the Office of Public Works, The Burren Action Group, and An Taisce


INTRODUCTION


Friends of the Irish Environment wishes to comment on the appeals of the Office of Public Works, An Taisce, and The Burren Action group. We hope the Appeals Board will with its decision in this case bring to an end the long history of a gravely mistaken proposed development in one of Ireland's most sensitive locations.


The planning history and the relevant references to policy for the area in the Clare Development Ground have been well covered by the opponents to the current proposal. We would have particular regard to the references to the Development Plan in the objection to Clare County Council prepared for the Burren Action Group and attached to their current appeal.


Consequently, we would respectfully draw the Boards attention to only four matters.


1) The failure of the applicant to perform a suitable assessment of the effects of the proposal on an area notified to the European Commission in April of 1997 for approval as Special Area of Conservation under the Habitats Directive 92/43/EEC, section 29.


2) What we believe to be a false legal issue raised in the use of a Court judgement to support an argument against the necessity for material contravention (Section 9 of the OPW appeal, James Howard and others -v- the Commissioners of Public Works in Ireland) when in fact the learned Justice made it quite clear that "With the merits of the opposing arguments in that controversy [the proposed interpretative centre] I am in no way concerned."


3) The failure of the developer in his appeal to accurately represent the recommendations of the Senior Planner, who in fact did not recommend permission with conditions as stated by the applicant in his appeal but recommended the adoption of the Material Contravention procedures in this case as the "prudent" course.


4) The total and repeated reliance by the planing authority on the scientific assessment by the applicant in 18 references which we believe in effect returns the relationship between the planning authority and the applicant to before James Howard and Others vs. The Commissioner for Public Works.


====


1) Section 29 of S.I 94 of 1997 (Natural Habitats Regulations) requires an "appropriate assessment of the implications for the site in view of the site's conservation objectives" An "appropriate assessment" is defined elsewhere in this legislation as an Environmental Impact Assessment.


The "Gortalecka Environmental Background Document" (RPS Cairns, October, 1996) is not an EIS and does not identify itself as such.

Because of the sensitive nature of the site both in terms of the unique physical nature of the karst limestone and because of the remote and vulnerable character of this area of the proposed Burren National Park, the Board would be justified in calling for an EIS for this development under S.I. 349 of 1989, S,I, 25 of 1990, and S.I 86 of 1994, these S.I.'s implementing the EIA Assessment Directives.


While the proposed development's scale is below the threshold for a mandatory EIS according to the Irish regulations , the provision allowing for an EIS in "sensitive" areas was, in our view, included in the legislation for developments in areas just such as this one. The number of visitors projected for the development, the transport involved, the likely impact of such numbers concentrated into a small area require such a formal study.


Further the EIA Regulations considerably widen the scope of public participation and would thus greatly assist the determination of the common good in relation to this project.


2) What we believe to be a false legal issue in the use of a Court judgement to support an argument against the necessity for material contravention (Section 9 of the OPW appeal, James Howard and others -v- the Commissioners of Public Works in Ireland) when in fact the learned Justice made it quite clear that "With the merits of the opposing arguments in that controversy [the proposed interpretative centre] I am in no way concerned."


The appellants suggest that the paragraph of the judgement which they attach to their appeal supports their contention that the proposed development is not a material contravention of the County Development Plan.


In doing so we suggest they have presented the Court's support of a local administration as a considered examination of the planning issues in relation to material contraventions. They further adduce such support from a case which is dead, and without dealing with the actual relevant and substantial legal concerns raised by the appellants opposed to this development.


One of these appellants states: "In view of the background and judicial history described above, and of the similarity of the former proposal for a visitors Centre and the present application for a Visitor Entry Point at the same location (despite the applicant's use of two different names for this location) a reference to the High Court Order of 12 February 1993 (and reconfirmation of that order in subsequent High Court and Supreme Court Hearings involving the applicant) should have been provided in support of the planning application. In the absence of such information, neither the planning authority not the public are in a position to make an informed decision or observation on the application."


In fact an examination of the full text of the case in Irish Planning Law and Practice quoted by the applicant shows that Costello, J. stated clearly at the outset of his judgement:


"With the merits of the opposing arguments in that controversy [the proposed interpretative centre] I am in no way concerned. The controversy for resolution in these proceedings is a different kind."


The quotation the developers chose runs contrary to the judgement's clear refusal to become involved in what is the in the best interest of the proper planning and development of the area. The learned justice simply reviewed the administrative decision, supporting the Councillors and the Planners.


Five years later the Councillors and the Planing authority have ruled that this altered development is in fact a material contravention of the County Development Plan significant enough to require material contravention procedures in order to act in a prudent manner. To grant permission is therefore an imprudent act which we do not believe your Board should support.


We would suggest that Costello, J. would support the current decision of the Council just as he did the previous administration and that the appellants use of that judgement selectively quoted in a manner as to

potentially create a false impression.


3) The failure of the developer in his appeal to accurately represent the recommendations of the Senior Planner, who in fact did not recommend permission with conditions as stated by the applicant in his appeal but recommended the adoption of the Material Contravention procedures in this case as the "prudent" course.


Having first read with great care the appeal of the Office of Public Works which state clearly that the report of the Senior Planner "recommended" a grant of permission subject to conditions, when - after the greatest difficulty - our representative was able to obtain a copy of the report itself we were quite astonished to find that the Senior Planner did nothing of the sort.


Section 7. Planning Authority Assessment and Procedures reviews the Planners report (7.2 and 7.3) as if this report did not contain its first four pages. In particular no reference is made to the seminal section entitled WHY IS THE MATERIAL CONTRAVENTION PROCEDURE BEING USED IN THE LIGHT OF THE POSITION WHICH THE COUNCIL ADOPTED UP TO THIS. (Capitals in original).


In this section, the Senior Planner reviews the traditional position of the Council in relation to material contravention and states "however, recent Court cases have forced its evaluation." [Presumably this is Roughan and Others vs. Clare County Council. (Keane, J.)]


While the Planner states that in the past the question of the materiality of a contravention revolves around

"The issue of whether or not the objectives of the policy statement is likely to be damaged by the proposed development either in itself or by the precedent…"


and that it may be argued that this approach is "reasonable" and that it has "considerable validity", the Planner clearly concludes:


"it is not appropriate or prudent to proceed in this manner in this case", finishing "it would be prudent to follow the material contravention procedure with regard to the proposed development for the avoidance of doubt regarding the Council's decision."


While the Senior Planner does indeed in his report offer an alternative - a grant subject to conditions - he has prefaced this approach by stating clearly that this application is a material contravention of the planning policy as adopted by the elected Councillors in the 1988 Clare Development Plan.


4) The total and repeated reliance by the planing authority on the scientific assessment by the applicant in 18 references which we believe in effect returns the relationship between the planning authority and the applicant to before James Howard and Others vs. The Commissioner for Public Works.


In all, we note 18 separate references in the Planner's Report to the acknowledged authority of the applicant in determining the scientific impact of his own development.


If the point achieved by the opponents of this ill conceived development in the Courts is to have any meaning, it is that the Commissioner for Public Works must be subject to the same rigorous examination as any other applicant.


Listen then to some of these comments:


"The Department that is making the proposal is that responsible for the management of the National Parks and for the adoption of policies in their regard. It appears to be reasonable for the Council to accept that if the National Body responsible for these matters is that the proposal is reasonable taking all matters into account it is unreasonable for the planning authority to refuse to accept this view." (page 5)


"The National Parks and Wildlife Service has indicated that the development will not have significance consequences of the proposed NHA and Special Areas of Conservation. Again, the NPWS is the body charged with the implementation of the Directive on which these designations are based and it is this body that would normally guide the planning authority on these issues." (page 6)


"Given the very limited scale of the development and its relatively hidden location visual impacts would be small and given the view of the NPWS regarding the impact of the development the location can not be considered necessarily unacceptable merely because of its location within these designated areas." (page 14)


"According to the NPWS there is no significant threat to the ecological quality of the area." (page 15)


"It is not possible to be absolutely precise about the potential threat to the ecology of the area. However, in view of the fact that the NPWS is the body that is responsible for the management and protection of the areas of NHAs and Special Areas of Conservations and in view of that body's acceptance that the threat to any significant plant communities is not great the weight given in these concerns must not be excessive." (page 15)


"The development is acceptable from an environmental point of view insofar as the body responsible for the implementation of NHA and Special Areas of Conservation legislation has indicated that it is satisfied that it will pose no significant threat to the nature conservation functions of the National Park." (page 23)


This approach is seen most clearly in the Planner's evaluation of the status of the Draft Burren Management Plan: the Planner states that the "applicant indicated that the plan did form the background to the proposal and did therefore form the context in which the proposal was set." He then concludes "In this regard, therefore, these plans must be considered Ministerial Policies and given appropriate weight in consideration of the Council." (page 22)


But the Burren Draft Management Plan is and remains to this day a draft plan, and as such can have no more weight in terms of national policy than does a draft County Development Plan when considering a planning application. The Draft Burren Management Plan has not been approved by the elected Government - and they have had ample opportunities.


The point is simply this. Those opposed to this development fought long and hard to enable the proposal to be assessed by the planning system. Is it right then that the planing system should then take the line that because the applicant is also the body charged with the areas protection we should take their word on the nature and extent of the impact?


Surely the applicant should never be accepted as the appropriate body to examine a proposal's impact? Surely the point of the decision in James Howard and Others vs. The Commissioner for Public Works was that the Commissioner for Public Works may not be judge and jury over its own development proposals?




CONCLUSION


This development has a long and bitter planning history. It may well be that at the time the project was conceived Interpretative Centres seemed a positive contribution to the development of a tourist industry in Ireland.


Falling visitors figures, a growing understanding of the concept of sustainable development and a change in the public perception of the value of an unspoiled environment make the current proposal, even should it be reduced to its barest minimum, quite "inappropriate" and "imprudent".


Should tourism thrive in Ireland in the coming millennium there is no doubt that further development would be proposed - even required - at this site in order to ensure the highest standards of tourism services required by continually rising tourist expectations and ensured by the additional employment this expansion would promise. Should tourism decline, the Burren will have been disfigured forever by a short term decision that will prove in the end not to have been in the best interests of the Burren or those who live and work there.


This is why it is so important that the Board refuse permission for any form of development at this site, no matter how innocuous and innocent of impacts the Commissioners for Public Works assure us the proposal will be.


Yours etc,


FIE


Burren decision by Appeals Board
Read Michael D Higgins on this decision


See our submission


AN BORD PLEANALA

Local Government (Planning and Development) Acts, 1963 to 1999

County Clare

Planning Register Reference Number: P96/1330

APPEAL by the Burren Action Group care of Environmental Management Services Limited of Seapoint Avenue, 42 Villarea Park, Glenageary, County Dublin and by An Taisce of Tailor's Hall, Black Lane, Dublin and by the Minister for Arts, Heritage, Gaeltacht and the Islands (care of the Commissioners of Public Works in Ireland of 51 St. Stephen's Green, Dublin) against the decision made on the 15th day of September, 1998 by the Council of the County of Clare to refuse permission to the said Minister for development comprising and Entry Point at Crag Road (CR103), Gortlecka and Knockaunroe, to the Burren National Park comprising covered waiting area, toilets, ranger accommodation, ancillary parking, storage and signage. This application proposes the removal of elements including the equipment building, treatment plant (part), landscaping (part) and the retention and completion of elements landscaping (part), reservoir and treatment plant (part) of a previously proposed visitor centre which will otherwise be backfilled and the land reinstated to its previous condition at the Burren National Park, County Clare:

DECISION: Pursuant to the Local Government (Planning and Development) Acts, 1963 to 1999, permission is hereby refused for the said development for the reasons set out in the schedule hereto.

SCHEDULE

1. Having regard to the fact that -

(a) the proposed development is located on a site within a relatively remote and undeveloped part of the Burren in the vicinity of "the core area" of the Burren National Park which contains a significant number of habitats and species (for example, turloughs and limestone pavements) which are required to be protected under the terms of the Council Directive 92/43/EEC of the 21st day of May, 1992, on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) with a view towards ensuring bio-diversity,

(b) the Burren is of international botanical importance, and

(c) the Management Plan for the Burren National Park indicates that nature conservation takes precedence when conflicts arise between different objectives for the management of the Burren National Park,

it is considered that the provision of the proposed Entry Point and ancillary facilities at this particular location would generate significant concentrations of visitors and traffic within "the core area" of the Burren National Park, and that the proposed development would seriously injure the amenities of the area by reason of:-

(i) the impact of the development on the fragile ecology of the habitats within "the core area" of the National Park arising from the intensification of visitor use which would lead to and unacceptable degradation of the physical environment in this area of outstanding landscape quality,

(ii) the impact of the development on the natural character of an undeveloped part of the Burren where such development and associated traffic movements would be obtrusive in the landscape and detract from the remote quality of the area, and

(iii) the impact of necessary road works associated with the access route from Kilnaboy to the site which would seriously detract from the scenic amenity and rural character of the landscape.

In these circumstances it is considered that the proposed development would not be in accordance with the principles of sustainable development as set out in "Sustainable Development - A Strategy for Ireland", published by the Government in April, 1997, and would, therefore, be contrary to the proper planning and development of the area.

2. Having regard particularly to the intrinsic conservation significance of the environs of the site, the potential availability of additional alternative access locations to the Burren National Park and in the absence of and pending the implementation of a satisfactory integrated programme for the provision of appropriate visitor information facilities on the periphery of the Burren region in accordance with best international practice, it is considered appropriate to apply the precautionary principle to the proposed development, because it is considered that it would constitute an unacceptable risk to the conservation of natural habitats and species.


Signed by Member of An Bord Pleanala - 3 March, 2000