Councillors Banner Councillors
Default text size Large text size Extra large text size High contrast text

Home : Corporate Services : Corporate Services : Council Meetings : Kildare County Council Meetings : 2010 : Minutes



Print this Document

KILDARE COUNTY COUNCIL

Minutes of Special Planning Meeting
held at 10am on Monday, 29th November 2010 at
Áras Chill Dara, Devoy Park, Naas, Co Kildare

Members Present: Councillor B Weld (Mayor); Councillors S Griffin, M Nolan, T Lawlor,
S Langan, C Purcell, K Byrne, J McGinley, M Wall, P McEvoy, P Kelly, S. Moore, C Murphy, L Doyle, M Miley, W Callaghan, S Doyle, P Kennedy, M Heydon, F O’Loughlin, D Scully.

Apologies: Councillors R. Daly, P. MacNamara

Also Present: Mr. M Malone, County Manager, Mr. J Lahart (Director of Services), Mr. Charlie Talbot (Meetings Administrator), Michael Kenny (Senior Planner), Anita Sweeney (Snr. Exec. Planner), Caroline Shinners, Lorcan Griffin, Billy Joe Padden, Mary Foley and other officials.

Adjournment

Due to the inclement weather it was agreed on the proposal of the Mayor, seconded by Cllr. S. Doyle, to adjourn the meeting to 10.45am.

The members observed a minute’s silence.

Chapter 9– Retail

Motion 78 – Cllr. S. Doyle

9.4.3 In support of submission

Add R.4, To apply a specific zoning for Multiple Retailers that can be implemented appropriately through the LAP process. This policy will assist in locating new multiple developments on appropriate sites that will optimise their significant power to direct retail activity into locations that achieve town strengthening objectives.

Manager’s Response - It is the role of adopted LAPs and will be the role of emerging LAPs to identify appropriate locations for particular land uses. It is not considered appropriate to zone lands specifically for ‘multiples’ as to do so would not facilitate proper retail planning and development and would eliminate ‘multiples’ from other sites that are deemed suitable for retail development in principle. In such instances, ‘multiples’, even on a smaller scale, may also be considered inappropriate on town centre sites, which would not be in compliance with the principles of the ‘Sequential Approach’ as identified in the Retail Planning Guidelines. Furthermore the prohibition of ‘multiples’ on sites zoned for town centre / commercial use would result in an anti-competitive environment and this may ultimately detract from the overall retail attractiveness of towns throughout County Kildare.

There is also an onus on the Planning Authority to ensure that sufficient land is zoned for particular land uses, and this is best achieved through the zoning of lands for town centre / commercial uses. The consideration of planning applications under the assessment criteria for retail developments in the Retail Planning Guidelines and Draft County Retail Strategy requires applicants to address the contribution that a proposal will make to the long term strategy of a town centre and its commercial synergies/linkages with the town centre as well as issues of trade diversion and retail impact. This reflects the priority given to town centres/Core Retail Areas under the Sequential Approach.

Manager’s Recommendation - No change

Cllr. S. Doyle referred to the Competition Authority’s definition of multiples and asked for support for her motion.  Cllr. Murphy seconded the motion.  Michael Kenny said the Planning Authority must work primarily to the Planning Act and Guidelines, after which other policy documents may be taken into consideration.  If this motion is adopted the Development Plan will not achieve what is intended in the retail strategy and it could be detrimental to towns and villages in the county.  The members pointed out that the motion does not prohibit development; rather it gives flexibility to the LAP process.  Following further discussion it was agreed to remove the word “specific” and to amend the motion to read as follows: It is the policy of the Council to consider including a   zoning for Multiple Retailers, for  individual retail stores in excess of 1,100 sqm net retail  floorspace  Where appropriate, application of this policy will be considered as part of the LAP process. This policy will assist in locating new multiple developments on appropriate sites that will optimise their significant power to direct retail activity into locations that achieve town strengthening objectives’

 

A vote was taken and the motion was carried.

Motion from Cllrs. S. Doyle & M. Miley

That all settlements within the settlement hierarchy, as outlined in Figure 3.3, that are beneath the population threshold to justify a statutory Local Area Plan, be assessed immediately after the adoption of this plan.  That this assessment encompasses a public consultation process through which a number of strategic settlements can be identified for sustainable development in compliance with the parameters of the policies in the County Development Plan and the regional Planning Guidelines.  Until such time as these settlements are designated, the existing settlements will be permitted to develop in a sequential manner from obvious core and where this is questionable, the core will be determined as location of school, shop/pub, church, crossroads in that order of priority.

The Mayor indicated that Cllr. Doyle had asked him on Friday for leave to add this motion to the agenda.  Charlie Talbot advised however that the motion was out of order as this matter had been dealt with at the last meeting and was therefore in contravention of item 13 of Standing Orders.  Cllr. Doyle argued that this was a different motion.  John Lahart referred to the words “all settlements be assessed” and said that the members had spent two days dealing with this issue already.  He also referred to the words “the existing settlements will be permitted to develop in a sequential manner” and said that this policy was contained in the Draft Plan and the motion added nothing to that policy.

Cllr. Miley seconded the motion and said the large rural population of Kildare should be afforded sufficient time to determine what is in their best interest.  Cllr. Murphy asked whether the public consultation could take place after the adoption of the Plan so that its findings could be used at the two year review stage and the Plan amended at that stage if necessary.  John Lahart pointed out that the information on the settlements had been available to the members since December 2009.  There was no statutory basis for what they were proposing in this motion and the midterm review was of the implementation of the Plan not a review of the Plan itself.  Charlie Talbot added that there had already been public consultation on the Draft Plan and over 6,000 submissions received.  In reply to a question from Cllrs Wall and Murphy as to whether all issues in Chapters 4 and 17 were now closed for discussion, Charlie Talbot pointed out that this is a re-entry of an issue already dealt with, not one that was missed in previous deliberations.

Based on the advice of the Manager and Charlie Talbot, the Mayor ruled the motion out of order.

Cancellation of JPC Meeting

Due to the inclement weather it was agreed to cancel the JPC Meeting scheduled for that evening.

Motion 16 from meeting of 12th November

Motion 16 – Cllr. M. Nolan

With the ongoing works of the flood relief scheme in Johnstown, this will restrict the amount of land available for amenity/ community development. This proposal will cater for amenity/ community development for the village in the long term. Can clarification be given regarding policy NR 3 in relation to these lands as they do not adjoin an interchange and if there is a proposal for the use of these lands under this policy can this be identified.

NR 3:  To identify areas at interchanges which may be required for future upgrading and improvement in the medium to long term and when identified to restrict development within these areas and preserve them free of development for those future improvements and upgrades.

Managers Response - It is considered that there is sufficient Open Space and Amenity zoned land in the Village Centre to accommodate a community / amenity development.

All types of development at this location are premature pending the completion of the Johnstown Flood Alleviation scheme. The proposed access to the lands in question (i.e. the proposed by pass / distributor road) may adversely impact on the delivery of policy NR3 for the Maudlins interchange

Managers Recommendation: No change

As Councillor Lawlor had an interest in this motion he left the Chamber.

Cllr. Moore said the proposal in Submission 198 was for 10 acres residential, 10 acres amenity and the remainder of the lands for white lands.  He said there was no proposal for developing the residential phase until after 2014 when the flood alleviation work would be completed and this phasing arrangement suited the local residents.  Cllr. Nolan seconded the motion.

Cllr. McGinley opposed the motion saying land should not be zoned on a flood plain.  Cllr. Kelly opposed the ad hoc manner of zoning land where there was already a sufficiency without proposals for where zoned land should be reduced elsewhere.

Michael Kenny said it was a policy in the Plan to try to avoid the coalescence of towns and villages and if this motion was adopted Johnstown would link up with Naas.  He said the Census indicated significant population increase between 2002 and 2006.  Other landowners were seeking significant residential zoning and over 4ha of land was zoned to cater for the projected amount of residential development.   The motion is not in the interest of proper planning and sustainable development.  Cllr. Griffin referred to the statement in the Draft Plan regarding “development to the east of Johnstown” and suggested removing the words “development to the east”.  This was agreed and on that basis, Cllrs Moore and Nolan agreed to withdraw the motion.

Donaghcumper.  Motions 81 and 82 were taken together.

Motion 81 - Cllrs Byrne, MacNamara, Purcell and McGinley

That objective R14 ‘To promote and progress the delivery of the integrated expansion of Celbridge Town Centre on the Donaghcumper lands’ be deleted

Manager’s Response - The Donaghcumper Town Extension Area has been an objective of the Council since 2002. It responds to the recognition that, for a centre of its size and potential, Celbridge was underperforming in terms of retail floor space with proximity and accessibility to the higher order centres of Dublin City Centre, Liffey Valley and Blanchardstown being the key reasons for its underperformance. The recently adopted Celbridge LAP 2010 also seeks to redress this.  At the County Development Plan, Town Development Plan/ LAP and AAP levels there has always been a strong recognition and commitment to ensuring that the development of the Town Centre Extension Area will pay the highest attention and respect to the natural, built and archaeological heritage of the area, and that of the town as a whole.

The Donaghcumper Town Expansion Area will be an integrated part of Celbridge Town Centre. Policy R14 recognises the need for there to be parallel progress in the renewal of the historic town centre and its back lands. This reflects the more comprehensive objectives and policies in the Celbridge LAP which seek to achieve the overall functional and environmental improvement of the town centre. Policies R36, 38 and R39 of the Draft County Development Plan should also be noted:

R36: To encourage and facilitate the enhancement and environmental improvement of the county’s towns and villages.

R38: To ensure that the best quality of design is achieved for all new retail development….

R39: To protect and enhance the amenities and character of town centres. The Council will seek to balance the competing needs of commercial, service, social and cultural functions which town centres perform with the need to protect recognised architectural quality of streetscapes.

It should also be noted that An Bord Pleanala decision (referred to in this motion) refers to lands zoned ‘New Residential’ and located at a distance from the town centre. An Bord Pleanala decision is pending with regard to the lands zoned ‘Retail and Commercial’ located adjacent to the town centre area of Celbridge.

Furthermore, it should also be noted that the members adopted the Celbridge LAP in January 2010. This decision post-dated the designation of the Donaghcumper Demesne as a protected structure on 30th March 2009.

Manager’s Recommendation - No change

 

Motion 82 - Cllr Murphy & Cllr McEvoy

Delete the current objective R14 and replace with “To secure the continued consolidation of Celbridge town centre subject to the physical constraints imposed by the exceptional circumstances of the proximity of Castletown House and Demesne and Donaghcumper House and Demesne, the need to protect the architectural and historic heritage of the Georgian streetscape and its protected structures, and the proximity of the River Liffey and its associated pastoral landscapes.

Explanation: 1, A recent refusal from An Bord Pleanála on a planning application to build on part of the Donaghcumper zoned lands (Ref:09.233937) gives testimony to the exceptional circumstances pertaining to development in this area. The Board refused permission for reasons that include the following: The proposed development is located in the demesne associated with Donaghcumper House, a protected structure, and in close proximity to Castletown House and its historic grounds. It is an objective of the planning authority, as set out in the current Kildare County Development Plan, to prohibit development in gardens or landscapes, which are deemed to be an important part of the setting of a protected structure. Having regard to the social and historic links between the demesnes of Donaghcumper, Castletown and St. Wolstan’s, it is considered that, notwithstanding the residential zoning of the site, the proposed development, by reason of its nature and scale and the loss of historic parkland, would negatively impact on this designed landscape and would materially and adversely affect the character and setting of Castletown House, a protected structure of international importance, and Donaghcumper House itself. The proposed development would, therefore, contravene the provisions of the development plan, would seriously injure the amenities of the area and of property in the vicinity and would be contrary to the proper planning and sustainable development of the area.

2, Policy R14 is not in line with the manager’s acceptance that the ENTIRE Donaghcumper Demesne is Protected (Ref chapter 12, manager’s response to sub 125, (b) which states that The designation of the entire demesne as a protected structure was adopted on 30th March 2009, (b) Manager’s Response Agreed.

3, It conflicts with the objectives of Table 12: Regional Green Infrastructure Classifications and Actions, pg 162 of the Regional Planning Guidelines which examples “Castletown House and attendant demesnes” (i.e. Donaghcumper Demesne and St Wolstan’s Demesne) in the category of Regional Scale Managed Parks and Strategic Green Belts. It is the aim of the RPGs to provide an overview of environmental and cultural resources and the identification of strategic priority elements, areas and routes for inclusion in Green Infrastructure development within the Greater Dublin Area.

Manager’s Response - Same response as (81) above applies in this instance.

 

Manager’s Recommendation - No change

 

The Manager referred to the legal advice he had received in relation to Donaghcumper and possible claims for compensation from down zoning of land.  He said the statutory position in relation to the 1999 Planning & Development Act was that there was a presumption that Members are entitled to alter zoning in review of a Plan.  In the Planning Act 2000 it was clarified that land could be downzoned via the County Plan but there was ambiguity regarding Local Area Plans.  The Planning Amendment Act 2010 indicates that land can be down zoned via County Development Plan and Local Area Plan but the decision to down zone must be rational and evidence based and any change must occur at end of the LAP cycle – not by way of amendment to an LAP during the life of the LAP.

He said one cannot rely on extrapolation of the An Bord Pleanála decision on lands zoned residential in the Celbridge LAP 2010 and apply that criteria to lands zoned commercial / town centre in the LAP.

Regarding the proposal to extend the protection boundary, the advice was that the extended “blue line” does not alter the zoning of the additional protected area.  Development can take place within protected area (per zoning).  He said the members should be mindful of using the basis of a protected structure to trigger a status change in zoning.  In summary he said the provisions of P&D Acts allow down zoning and provided the decision is rational, evidence based and made at end of plan cycle, there is little risk of a successful compensation claim.  If there is a change to a Development Plan which results in a contradiction in an LAP, the LAP must be reviewed within one year as per the Planning & Development Amendment Act 2010.
Claims may arise if a developer relied on legitimate expectation from the adoption of an LAP or if an LAP was amended.  He noted that the Celbridge LAP was adopted before the 2010 Planning & Development (Amendment) Act and therefore the developer would have a legitimate expectation that the status of the land would remain in place for the duration of the LAP.  He said any decision to downzone must be rational and reasonable.

 

In relation to the policy theme boundaries he said the members had the right to change the boundaries or remove same with little danger of a successful compensation claim. 

Cllr. Murphy said she had received legal advice also which stated that there was no legal impediment to changing the zoning of land in a Development Plan just because they were zoned in the Celbridge LAP.  The Manager pointed out that the members had requested him to seek legal advice which he had done and which he had presented this morning.  There could not be two legal advices.

 

Cllr. McGinley moved the motion and made the following points:

  • The members had voted to designate the entire demesne as a protected structure
  • The passing of the amendment act removed the risk from down zoning
  • The ABP refusal for low density housing had changed the circumstances and effectively  dezoned the land
  • The Celbridge LAP will have to be reviewed to meet the retail needs of the town and he proposed that this take place in early 2011

 

Cllr. Murphy gave a lengthy argument in favour of motion 82 referring to the following:

  • During the review of the Celbridge LAP the members were told it was more appropriate to deal with this issue during the review of the DP
  • The Inspector’s Report in the ABP decision PL09.233937 (Donaghcumper)
  • Architectural Heritage Protection Guidelines
  • Dr. O’Kane Crimmons & Dr. John Olley’s report “The Designed Landscape of Castletown Celbridge & Adjacent Demesnes”
  • The inconsistencies between the 1999 County Development Plan and the 2002 Celbridge Development Plan
  • “Towards a Liffey Valley Park Strategy”
  • Protected views
  • Sensitivity of the Liffey Valley

She said there was a major conflict in the Development Plan in the zoning of this land for retail/commercial and the reasons given for its removal were in line with proper planning and sustainable development.  Cllr. McEvoy added that 4,073 submissions were made on this issue before the ABP decision on the planning application.

 

John Lahart said extending the protected boundary (blue line) does not require a change in zoning.  He cautioned that the members cannot rely on the ABP refusal to determine the status of the retail/commercial land.  He said the advice regarding the LAP was relevant at the time it was given and had been modified by the Amendment Act.  He said there will always be a conflict between protection and development and required balancing to allow the town centre to develop in a reasonable and sequential manner against the issue of the protected structure.  In reply to questions from Cllrs. Kelly & Griffin, Michael Kenny said there was no such thing as “high amenity zoning” in our Development Plan but areas of high amenity were identified in the County Development Plan i.e. the Curragh.  The passing of the motion will not result in a change of zoning.

 

After further discussion Cllr. Griffin proposed removing the words “on the Donaghcumper Lands” from objective R14.  He was seconded by Cllr. Lawlor.

 

The Manager said this amendment would not trigger a review of the LAP and he strongly recommended that objective R14 stay as it is due to other objectives in the DP and so as to send out proper signals re our retail development policy.

 

The amended motion was agreed.

 

Adjournment

It was agreed to adjourn the remainder of the business to 2pm on Wednesday 1st December.