In December 2007 FIE began an investigation into non-compliance with Quarry registration conditions. The Department of Environment advised that conditions imposed through the Planning Act 2000 registration process were unenforceable. Despite prolonged and widespead lobbying to the Department of the Environment, Local Authorites, the Competitions Authority, the Ombudsman, the Comptroller and Auditor General, and the National Public Procurement Unit the legislation remains unchanged and the ridiculous situation continues where local authorites to purchase material from Quarries in non-complinace with conditions imposed by the Local Authrorities, including non-payment of development levies and bonds.
In December 2007 FIE began an investigation into non-compliance with Quarry registration conditions. Under access to information on the environment legislation FIE requested documentary evidence to confirm compliance with registration conditions. No such documents existed.
When we asked why nothing was being done to enforce the conditions, we were told that the County Council ‘did not believe they had the authority to do so' and that ‘clarification is being sought from the Department of the Environment (DoE) and it has also been referred to the Council's Legal Department for advice'
In April 2008 FIE wrote to the Minister of the Environment bringing this matter to his attention and requesting urgent action. No reply was issued.
The quarry used in the FIE case study continued to operate in non-compliance with registration conditions. So in February 2009 FIE wrote to Cork County Council repeating our concerns and repeating the original AIE request. Their reply stated that they were still waiting for clarification from the DoE. We did however receive sections of an 'environmental management system' (EMS). This showed significant flaws in the quarry registration process. Critical information provided by the quarry owner/operator was inaccurate yet had been accepted verbatim by the County Council. A complaint was issued in relation to this administrative failure in the Quarry Registration process both to Cork County Council and the DoE.
On the 5th May 2009 FIE contacted the Ombudsman informing them that there appeared to have been an administrative breakdown between the DoE and the Local Authority.
The Ombudsman replied that ‘The department advised that conditions imposed on a pre 1964 quarry were unenforceable. The department are aware of the difficulties caused and were looking into it but unfortunately no timeframe was given The ombudsman can not make a finding of maladministration against the local authority if they are not in a position legally to conduct an administrative action'.
However the Ombudsman did not say whether they could make a finding of maladministration against the DoE. To clarify this FIE issued a further letter and we await the reply.
FIE also contacted the Competitions Authority who have a statutory function to advocate reform of legislation, regulations and administrative practices that have anti-competitive effects. However in this case the Competition Authority replied that the Department acknowledge already that there is a problem and hence they deemed their advocacy role as unnecessary. This is despite the fact that the Department have known about this problem since (at least) 2007 and no time frame has been given to address this matter.
The draft Planning Bill 2009 published this month [July 2009] failed to even mention quarries which we were told will be addressed in 'future amendments'.
We asked the Competition Authority specifically if the purchase of quarried material from registered quarries by the state (e.g. county council/NRA) is anti-competitive. We were told that the state is not breaching competition law by doing this. As a purchaser however the State could use its position to strategically purchase from those that have adhered to the conditions imposed by planning authorities, and refuse to purchase from those that have not, in effort to encourage all quarries to comply.
They did suggest we contact the National Public Procurement Unit as this may be against public procurement legislation. But enquiries indicated that although Local Authorities could choose not to purchase from operators who are not in compliance with registration condition they were not obliged to do so.
In May FIE were told informally by a Local Authority official that a quarry survey had been sent to all Local Authorities. To confirm this FIE sent an AIE request to the DoE looking for any documentation, relating to the limitations and unenforceability of Section 261 of the Planning and Development Act including the results of any survey or questionnaire to local authorities. The DoE only provided 12 of 60 records held, all of which relate to FIE enquiries, press releases and published news articles. The failure to give details and reason for refusal and the basis of their decision to withhold 48 records is currently under appeal .
FIE wrote to the DoE on the 7th June 2009 requesting a reply to our 28 April 2008 seeking the status of Section 261 of the Planning and Development Act 2000.
We informed the Minister that the Ombudsman had informed us that the DoE had told them on 12 February 2009 that ‘the act did not provide a mechanism for pursuing legal proceedings for non-compliance'. And that it was our understanding from various local authorities that the Minister had not replied to their queries in this regard either. The letter requested a statement on the matter. No answer has been received.
On 16th June FIE wrote to the DoE requesting that they write to all local authorities advising them to purchase no materials from quarries registered under this act which have not paid their levies and complied in full to their conditions of registration. We requested a full reply within 15 days as per the ‘Customer Charter' either acknowledging that such a letter would be issued or giving the reasons for not doing so. No reply has been received.
FIE also wrote to the Comptroller and Auditor General in their role of ‘providing independent assurance that public money is properly managed and spent to good effect'. We gave the example of a Local Authority purchasing material from a quarry for extensive local road upgrades, notwithstanding the failure of the quarry to pay its contribution and address almost all of its 65 conditions of Registration. FIE also pointed out that this was anti-competitive against quarries that do comply with conditions.
We requested consideration of this matter in the context of ensuring that public money is spent ‘to good effect' and advise of their views accordingly.
On 21 July 2009 FIE wrote to all Local Authorities requesting that they refuse to purchase from those that have not complied with conditions,(which includes the non-payment of development levies and bonds), seeking full reply within four weeks ether acknowledging that this will become their policy 'or giving your reasons for not doing so'.
Meanwhile quarries continue to operate in non-compliance with registration conditions while supplying local authority projects with materials.
And how many quarries slipped through the planning process via quarry registration through the provision of incorrect and inaccurate information that nobody checked?