Ballymore Eustace Anglers

Irish Times Thursday, July 23, 2009
Ballymore Eustace scheme cleared in court to go ahead

THE SUPREME Court has cleared the way for a development of houses, shops, a creche and a medical centre at Ballymore Eustace, Co Kildare.

The five-judge court yesterday upheld arguments by Abbeydrive Developments Ltd that it was entitled to a default planning permission for the proposed development because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.

Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.

Abbeydrive argued in the High Court that the council’s failure to decide within the eight-week period entitled it to default permission but Mr Justice Roderick Murphy rejected that argument.

Abbeydrive appealed that 2005 judgment to the Supreme Court which yesterday allowed the appeal. It adjourned the issue of what order should be made in the case.

Mr Justice Nial Fennelly said the dispute in the appeal arose from the nature of the proposed development. While almost entirely residential, it also included a very small two-storey community facility comprising a creche, neighbourhood shops and a medical centre. That facility represented some 0.2 per cent of the total floor area of the proposed development.

The judge noted the relevant zoning area in the Co Kildare development plan 1999 was described as “solely residential” but the council’s senior planner had accepted this proposed development was “open for consideration”. The judge said Article 34.8 of the Planning Act 2000 provided a default that permission could be granted where a planning authority had failed to make a decision within eight weeks.

Mr Justice Fennelly ruled that the High Court had erred as a valid permission could have been granted through an exercise of discretion by the council in favour of Abbeydrive. It was not open to the High Court to impose a limitation on the effect of Article 34.8, except on the basis of legal power.

The Ballymore Eustace Trout and Salmon Anglers’ Association on the 31st July 2009 wrote to the Kildare County Manager asking what notice Kildare County Council will serve on the Association in order to allow the Association to exercise its appeal of the default planning permission to An Bord Pleanala. We were informed by Kildare County Council that there is no appeal process. Despite this, the TSAA lodged an appeal dated 12th August 2009 to An Bord Pleanala. The Association were notified by An Bord Pleanala by letter dated 9th September 2009 that “Section 37(1)(d) of the 2000 Act provides that ythe appropriate period for the making of an appeal means the period of four weeks beginning on the day of the decision by the planning authority.

In this case the decision of the planning authority was on 5th February 2003, and the last day for receipt of an appeal was 14th March 2003. However, your appeal was received by the Board on 13th August 2009 and it is regretted that it must, therefore, be regarded as invalid—”

An Taisce also lodged an appeal with An Bord Pleanala and their appeal was also regarded as invalid. They informed the TSAA on the 15th September 2009 that they were taking legal advice on the matter. An Taisce later told us that they would “involve you in any discussion with lawyers on a “without prejudice” basis.”

The case was up before the Supreme Court on Monday 19th October 2009 and was adjourned to consider further written pleadings on what should be the date of and form of any order for a default permission. An Taisce got the right to plead and informed the TSAA (19/10/09) that they will be sending in a written submission. They recommended that the Association should seek the same. The Association replied, also on the 19th October 2009, asking if we could use the An Taisce solicitor and also the likely cost of same. An Taisce replied that the cost would be substantial and that they were preparing an affidavit to present to the Supreme Court.

The Association then sent the following letter to the Chief Justice.

         Ballymore Eustace Trout and Salmon Anglers’ Association

                                                                         Broadleas,
Ballymore Eustace,
Co. Kildare.
4th November 2009
The Hon. Mr. Chief Justice John L. Murray
Supreme Court,
Four Courts,
Inns Quay,
Dublin 7.

Re:     The Supreme Court

                                                                    Record Number: 091/2008
Between:

Abbeydrive Developments Limited

                                                                     Applicant / Appellant
– and –

Kildare County Council

                                                                     Respondent

Dear Mr. Chief Justice Murray,
On the 22nd July 2009 the Supreme Court upheld arguments by Abbeydrive
Developments Limited that it was entitled to a default planning permission for a development of houses, shops, a creche and a medical centre at Ballymore Eustace, Co Kildare, (planning ref; 02/2308) because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.

On hearing the Supreme Court decision, the Ballymore Eustace Trout and Salmon Anglers’ Association by letter dated 31st July 2009 (Appendix 1) asked  the planning authority Kildare County Council what noticed it would serve on the Association in order to implement our right to appeal the default planning permission to  An Bord Pleanala.  Kildare County Council replied by letter dated 5th August 2009 (Appendix 1) that there was no appeal process.  The Association felt aggrieved at this response as the Kildare County Council website informed us that the planning application Ref No. 02/2308 was deemed withdrawn due to a lack of response by Abbeydrive Developments Limited, within the specified time period, to a request by the Planning Authority for further information.

The Ballymore Eustace Trout and Salmon Anglers’ Association dated 12th August     2009 appealed the default planning permission to An Bord Pleanala. An Bord Pleanala returned our appeal with an accompanying letter dated 9th September 2009 (Appendix 2) stating that the decision of the planning authority was on 5th February 2003 and that our appeal was not made within the period specified for making the appeal.  The Association is at a loss to understand how the decision of the planning authority can be put down as on the 5th February 2003.

The Ballymore Eustace Trout and Salmon Anglers’ Association are not in
a position to incur or be exposed to legal costs.  However the Ballymore Eustace Trout and Salmon Anglers’ Association respectfully requests the Supreme Court to address and confirm our entitlement to appeal to An Bord Pleanala.

Thanking you.

Yours truly,

Thomas Deegan
Honorary Treasurer

Similar correspondence has been sent to The Hon. Mrs. Justice Susan Denham.”

The Private Secretary to the Chief Justice replied by letter dated 6th November 2009.

“I refer to your letter of the 4th inst.,addressed to the Chief Justice and similar correspondence which has been sent to the Hon. Mrs Justice Susan Denham.

I am requested to point out that neither the Chief Justice nor members of the Court can enter into correspondence concerning previous decisions of the Court. The function of the Court is to hear appeals brought before it in accordance with law. The Supreme Court has no function in relation to the giving of legal advice. Regrettably therefore it would be inappropriate to respond to your request.

Yours sincerely”

The case was up before the Supreme Court on the 18th February 2010 and the following article from the Irish Times snyopsises the Court proceeding.

“The Irish Times – Friday, February 19, 2010

Court puts development for Ballymore Eustace on hold

MARY CAROLAN
THE SUPREME Court has upheld arguments by An Taisce that the question of whether a housing and retail development at Ballymore Eustace, Co Kildare, should be put on hold until the High Court determines a key issue in the case. The five-judge court yesterday found “exceptional and unusual circumstances” required the court to revisit its own declaration last year that Abbeydrive Developments Ltd is entitled to default planning permission for its proposed development of houses, shops, a creche and a medical centre at Ballymore Eustace.
That decision is now on hold pending a future High Court decision, and a possible Supreme Court decision on appeal, as to whether a default permission may be legally granted in the absence of an environmental impact assessment as required by a European directive.
The 2009 Supreme Court declaration, upholding a 2005 High Court decision, was granted on grounds of Kildare County Council’s failure to make a decision on Abbeydrive’s planning application within the eight-week period set down by law.
Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.
The Supreme Court granted its declaration in July 2009 but had not made final orders in the case because An Taisce raised concerns.
An Taisce, which was incorrectly told by the council in 2007 the planning application was deemed withdrawn and was unaware of the legal action until it read a newspaper report in July 2009, raised concerns a default permission in the circumstances of the case was contrary to European law. An Taisce argued the proposed development, because it was subject to the requirements of a 1985 European directive relating to Environmental Impact Assessments, could not be the subject of a default permission.
It said a valid permission could not have been given because of the council’s failure to assess the EIS submitted by Abbeydrive.”

An Taisce won its case.  The default planning permission is now void.  Abbeydrive are in liquidation but have sold the site on to another developer, so keep an eye out for the next planning application.

 

 

 

 

An Bord Pleanala were due to make a decision on our appeal against the decision of Kildare County Council granting planning permission to Dublin City Council for the construction of a new Sludge Treatment Plant at Bishopsland, Ballymore Eustace, Co. Kildare in November 2008 and this decision was put back until the 5th January 2009.

However in a surprise move, An Bord Pleanala by letter dated 19th January 2009 have requested Dublin City Council to submit the following information.

"The Board has examined the appeal and is of the opinion that certain information is necessary for the purpose of enabling it to determine the appeal.

The Board considered that further, more detailed and comprehensive, information is required in respect of the physico-chemistry nature of the current process wastewater stream and, on completion of the proposed sludge treatment plant, in respect of any anticipated changes in the composition of the wastewater stream…

(a) entering the wastewater management plant, and (b) prior to discharge to the River Liffey.

In accordance with section 132 of the Planning and Development Act 2000 and having regard to article 73 of the Planning and development Regulations 2001you are required to submit, on or before 2nd March, 2009, the following information:
1.       Submit a comprehensive report of water quality monitoring activities, including sample records, in relation to the composition of the current wastewater stream and of the receiving water after final discharge.

2.       Although the Board recognizes the functional advantages of the proposed siting of the new facility beside the existing sludge treatment plant, it considers that an alternative, more satisfactory location might be available within the substantial landholding of the applicant at this location.

In addressing this matter you are requested to examine possible alterative site locations and to provide a detailed evaluation of the alternatives considered, the submission should be accompanied by relevant site plans, section drawings and photomontages."

Also by letter dated 19th January 2009 An Bord Pleanala have invited the Trout and Salmon Anglers’ Association to make a submission or observation on the following:

"The Board proposes to take into account the following:

1.    The Board noted that the proposed development is situated outside the existing treatment plant boundaries and at an elevated and visually prominent location within the River Liffey Valley. Having regard to the visual character and scenic/recreational value of this open, rural landscape the Board considered that the proposed structure and site boundary fencing, by reason of scale bulk, materials and design, would be visually obtrusive and incongruous in the landscape and thereby, might seriously injure the visual and recreational amenities of the area, particularly in views from the Golden Falls Reservoir and lands further to the south.

2       Furthermore, and having particular regard to the proximity of the site to a substantial bowl barrow archaeological feature – Recorded Monument (KD029:051) – the Board considered mat me proposed development might be unduly close to the monument and interfere with its setting and, thereby, detract from the archaeological interest of the area. The proposed development might, therefore, be contrary to the proper planning and sustainable development of the area.

In accordance with section 137 of the Planning and Development Act 2000 you are invited to submit any submission or observation that you may have in relation to the matters raised on or before 16th February, 2009. Any submission or observation you make should be confined to the issues specified above as the Board cannot consider comments that are outside the scope of the matter(s) in question. Your submission in response to this notice must be received by the Board not later than 5.30 p.m. on the date specified above."

The Association has responded by letter dated 7th February as follows:

"Thank you for your correspondence dated 19th January 2009.

On behalf of the above Association I wish to make the following submission.

With regard to item No. 1 in your correspondence, the above Association is in agreement with the view expressed and that  “The proposed development is situated outside the existing treatment plant boundaries and at an elevated and visually prominent location within the River Liffey Valley.” In fact the proposed development is on the summit of the hill overlooking Golden Falls and can be clearly seen from Golden Falls Reservoir and from as far away as the Hollywood hills.

We believe that the proposed development would be visually obtrusive and would injure the visual and recreational amenities of Golden Falls Reservoir.  The proposed development would ‘stand out like a sore thumb’ as viewed from Golden Falls Reservoir.

With regard to item No. 2 in your correspondence we are of the opinion that a ‘safety first’ or ‘precautionary principle’ approach must be adopted.  If there is any chance of interfering with the setting of the bowl barrow archaeological feature (Recorded Monument KD 029:051) then an alternative location for the proposed development must be found."

We were very surprised to received further correspondence dated 24th February from An Bord Pleanala along with a copy of queries received by An Bord on the 28th January 2009 from Dublin City Council’s Consultants plus a copy of the statutory notice issued by An Bord Pleanala with An Bord’s responses to the queries dated 24th February 2009.

The Association on the 16th March 2009 made a submission and observation on this correspondence with photographs of the views of the proposed site from five locations south of the site and including a flow diagram of the present Sludge Treatment Plant.

An Bord Pleanala granted the following planning permission with conditions dated 28th August 2009.

"AN BORD PLEANALA

PLANNING AND DEVELOPMENT ACTS 2000 TO 2007

Kildare County
Planning Register Reference Number: 08/520

An Bord Pleanála Reference Number: PL 09.229575

APPEAL by Ballymore Eustace Trout and Salmon Anglers Association of Barrack Street, Ballymore Eustace, County Kildare and by The Eastern Regional Fisheries Board of 15a Main Street, Blackrock, County Dublin against the decision made on the 21st day of May, 2008 by Kildare County Council to grant subject to conditions a permission to Dublin City Council care of Colum McGaughey of Room 412, Floor 4, 68-70 Marrowbone Lane, Dublin in accordance with plans and particulars lodged with
the said Council.

PROPOSED DEVELOPMENT: The construction of a new sludge treatment plant comprising one number sludge treatment building, three number thickened sludge storage tanks, one number dried sludge storage silo and associated site infrastructure at Ballymore Eustace Water Treatment Plant, Bishopsland, Ballymore Eustace, County Kildare.

DECISION

GRANT permission for the above proposed development in accordance with the said plans and particulars based on the reasons and considerations under and subject to the conditions set out below.

MATTERS CONSIDERED

In making its decision, the Board had regard to those matters to which, by virtue of the Planning and Development Acts and Regulations made thereunder, it was required to have regard. Such matters included any submissions and observations received by it in accordance with statutory provisions.

REASONS AND CONSIDERATIONS

Having regard to:

(a) the provisions of the Strategic Planning Guidelines for the Greater Dublin Area and the objectives of the planning authority, as set out in the current Kildare County Development Plan, which seek to facilitate the upgrading of the water supply infrastructure within the county and the region,
(b) the close proximity of associated infrastructural facilities within the adjoining
water treatment plant, and
(c) the proposed measures for the treatment and discharge of water to the River
Liffey,
it is considered that the proposed development would contribute to the provision of an enhanced public water supply for the region and, subject to compliance with the conditions set out below, would be acceptable in terms of its impacts on the visual amenities and archaeological interest of the area and on the water quality of the River Liffey and would, therefore, be in accordance with the proper planning and sustainable development of the area.

CONDITIONS

1. The layout and design of the proposed development shall be modified as
follows:
(a) The proposed fenceline along the south-east boundary of the site (approximate length -55 metres) shall be relocated in a north-westerly direction and shall be aligned so that it does not encroach on the line of the existing ditch/bank which terminates at the ‘bowl barrow’ recorded monument.
(b) The layout of the south-east corner of the proposed sludge treatment building shall be redesigned to ensure that no part of the building lies within five metres of the re-aligned fenceline. The location/footprint of the western perimeter of the redesigned building shall not extend beyond that indicated on the Site Layout Plan (Drawing Number PL022-Revision P01) which was received by An Bord Pleanála on the 19th day of March, 2009.
Detailed drawings (to a scale of not less than 1:200) indicating the proposed method of compliance with these requirements shall be submitted to and agreed in writing with the planning authority prior to the commencement of development.

Reason: In order to protect existing natural features within the site and the
visual amenities of the area.

2. Prior to commencement of construction, details of the materials, colours and textures of all the external finishes shall be submitted to and agreed in writing with the planning authority. The colour of the elevations may not be altered at any time without the prior written agreement of the planning authority.
Reason: In the interest of visual amenity and the protection of the rural character of the area.

3. Water supply and drainage arrangements, including the disposal of surface water, shall comply with the requirements of the planning authority for such works and services.
Reason: In the interest of public health and to ensure a proper standard of development.

4. Construction works at the site shall be carried out in accordance with the “Requirements for the Protection of Fisheries Habitat during Construction Works at Rivers Sites” (available at www.fishingireland.net).
Reason: In order to protect the watercourse from pollution and in the interest of the proper planning and sustainable development of the area.

5. Pre-development testing shall consist of the following:
(1) The developer shall engage the services of a suitably qualified archaeologist (licensed under the National Monuments Acts 19301994) to carry out pre-development testing at the site. No sub-surface work shall be undertaken in the absence of the archaeologist without his/her express consent.
(2) The archaeologist shall notify the National Monuments Service of the Department of the Environment, Heritage and Local Government in writing at least four weeks prior to the commencement of site preparations. This will allow the archaeologist sufficient time to obtain a licence to carry out the work.
(3) The archaeologist shall carry out any relevant documentary research and may excavate test trenches at locations chosen by the archaeologist, having consulted the proposed development plans.
(4) Having completed the work, the archaeologist shall submit a written report to the planning authority and to the National Monuments Service for consideration.
(5) Where archaeological material is shown to be present, preservation in situ, preservation by record (excavation) and/or monitoring may be required and the National Monuments Service will advise the developer with regard to these matters.

(6) No site preparation or construction work shall be carried out until after the archaeologist’s report has been submitted and permission to proceed has been received in writing from the planning authority in consultation with the National Monuments Service.
Reason: To ensure the continued preservation (either in situ or by record) of features or other objects of archaeological interest which may lie within the site.

6. The site shall be landscaped in accordance with a tree survey and landscaping scheme which shall be submitted to the planning authority for agreement before development commences. This scheme shall include:
(a) A plan to scale of not less than 1:500 showing

(i) the trees to be removed and those to be retained, indicating species, heights, crown spread and condition,
(ii) the species, setting and height of all new planting which shall provide for deciduous trees within the site boundary fence and additional deciduous trees along the line of the existing ditch/bank which lies to the south-east of the realigned site boundary.
(iii) proposals for levelling, mounding and surface treatment of external areas including hard surfaced areas.
(iv) landscape management plan to include details of the measures to protect existing trees and shrubs during the construction phase; and
(v) a timescale for the implementation of this scheme.
Reason: In the interest of visual amenity.

7. The proposed overground oil storage tank shall be adequately bunded to protect against spillage. Bunding shall be impermeable and capable of retaining a volume equal to 1.5 times the capacity of the tank. Filling and take off points shall be located within the bunded area.
Reason: In the interest of public health and safety.

8. (a) Comprehensive monitoring arrangements relating to the volume and quality of the treated filtrate and supernatant wastewater discharges to the River Liffey shall be submitted to and agreed in writing with the planning authority prior to the commencement of development. In this regard, the process wastewater shall be treated to ensure compliance with the parameter limits which shall be specified by the planning authority having regard to the River Liffey Catchment Management Plan under the Water Framework Directive.
 

(b) The agreed monitoring regime shall provide for sampling, at regular, specified, intervals of the following:
(i) Supernatant from the sludge thickening tanks.
(ii) Spillway contents, including the combined filtrate, supernatant, washwater and surface water from the plant, prior to discharge.
(iii) Water in the Golden Falls Reservoir, upstream of the spillway discharge from the plant.
(iv) Water in the River Liffey, downstream of the spillway discharge from the plant.
(c) The physico/chemical parameters to be monitored shall include the following: Colour, Turbidity, Aluminium, Suspended Solids and PH.
(d) The data generated from this sampling/monitoring regime shall be forwarded to the planning authority at regular, specified, intervals and shall be made available for public inspection.
Reason: In order to protect the quality of the water in the River Liffey in the interest of public health and recreational amenity, including angling.

9. The developer shall pay to the planning authority a financial contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority in accordance with the terms of the Development Contribution Scheme made under section 48 of the Planning and Development Act 2000. The contribution shall be paid prior to the commencement of development or in such phased payments as the planning authority may
facilitate and shall be subject to any applicable indexation provisions of the Scheme at the time of payment. Details of the application of the terms of the Scheme shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to the Board to determine the proper application of the terms of the Scheme.
Reason: It is a requirement of the Planning and Development Act 2000 that a condition requiring a contribution in accordance with the Development Contribution Scheme made under section 48 of the Act be applied to the permission.

Member of An Bord Pleanála Margaret Byrne duly authorised to authenticate the seal of the Board.

Dated this 28th day of August 2009.

The Association is delighted with An Bord Pleanala’s permission and looks forward to seeing the comprehensive monitoring arrangements which must be put in place.

The Association wrote to the Director of Services Kildare County Council asking that we be given an input into the monitoring arrangements that must now be drawn up and the Director replied inter alia by letter dated 16th September 2009 " Please be assured that they will be in contact with relevant officials from Dublin City Council in order to have an input into the plans and proposals relating to monitoring arrangements as envisaged in the parent planning permission.  I am also pleased to advise that Mr. Holligan will liase directly with you in this regard." 

So far so good?

At a River Liffey Workshop at Carton House on the 4th September 2008 anglers were astonished to hear Dr. Paddy Gargan of the Central Fisheries Board state that in the past 20 years survival of salmon at sea had declined from 20% survival rate to 6% survival rate.

In order to investigate the increasing mortality of salmon at sea the European Union has in 2008 funded a multi million euro research project to look at what is happening to salmon survival at sea.

Marine research vessels from Ireland, Norway, Iceland and Canada will spend the next two years looking at salmon distribution, feeding, location, etc at sea and collect a wide range of parameters including temperature, food availability etc. Salmon captured will be traced back to home rivers by looking at the genetic make up of their scales. The Irish boat the Celtic Warrior was very successful on a cruise in May 2008 at capturing salmon post-smolts up as far as Faroes.

For more information click on www.salmonatsea.com