Hozier unlikely to obtain planning permission for new guest accommodation at Wicklow home

Trying to obtain planning permission for development at your home can arise for any property owner not just Hozier. Call BPS to discuss if you have any such issues.

One of the country’s most popular music stars, Hozier is singing the blues after Council planners have told him that planned new guest accommodation at his Co Wicklow period property falls foul of planning rules. 

Last year, Hozier, whose full name is Andrew Hozier Byrne, lodged plans to construct ancillary accommodation to his main Oldfort home near Newcastle, Co Wicklow comprising a two bed, two storey detached guest lodge and gym and an adjacent double and single height structure with pitched and flat roofs, for a recreation space. Hozier has previously secured planning permission from the Council for a basement swimming pool and modern grass roof extension for the home that he purchased for €780,000. However, in a letter to the multi-award winning Take Me To Church singer-songwriter requesting revised plans and new reports, the Council has told him that it is unlikely to grant planning permission for the guest lodge.

Read the full article @ The Irish Independent

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Wicklow County Council v Beattie [2019] IEHC 18

I had a call this morning asking about the final judgement in this case. Please see the judgement below.

Wicklow County Council v Beattie [2019] IEHC 18

JUDGMENT of Mr. Justice Noonan delivered on the 15th day of January, 2019

1. In this application, the applicant ("the Council") seeks an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, compelling the respondent ("Mr. Beattie") to comply with certain conditions attached to planning permission 07/1080 which relates to the lands comprised in Folio 5759F County Wicklow.

2. The lands in question are part of the Beattie farm situated at Tinode, Kilbride, Blessington, County Wicklow. The farm has been in the possession of the Beattie family since approximately 1912. The farm in total contains 73.9 hectares of which 20.8 are the subject matter of the relevant planning application. Access to the farm is gained via an entrance off the N81 which is the main Tallaght to Blessington Road. This entrance has been in existence for many decades and certainly prior to 1st October, 1964.

3. In 2006, Mr. Beattie applied to the Council for planning permission for a new dwelling house on the land. There was then, and still is, no dwelling house on the land. On 26th April, 2007, planning permission reference no. 06/5174 was granted to Mr. Beattie for the development of a two storey house with a new entrance to the site and a new wastewater treatment plant. A number of the conditions attached to this planning permission related to the new entrance. Condition 5 required 120 metre sight lines, condition 6 related to the surface material of the new entrance and condition 8 provided that surface water runoff from, inter alia , the entrance, should be collected on site and not permitted to flow onto the public roadway.

4. Planning permission 06/5174 was subject to the normal five-year lifespan so that it would, if not implemented, expire on 26th April, 2012. Although it was Mr. Beattie's intention to construct the house, events overtook that plan in the shape of the economic collapse and thereafter he was no longer financially in a position to commence the construction. The entrance provided for by the 06/5174 permission was onto the R759 rural road which also bounded the Beattie farm but importantly carries a lower volume of traffic than the N81. The Council previously refused to grant Mr. Beattie permission for a development that utilised the existing N81 entrance on traffic hazard grounds.

5. The architect that represented Mr. Beattie in his various planning applications was John M. Taylor of Freyer and Taylor Architects, 39 North Avenue, Mount Merrion, County Dublin. Mr. Taylor made a further planning application on Mr. Beattie's behalf in 2007 for retention of certain farm buildings and construction of new ones. This application, bearing reference 07/1080, was granted by the Council on 28th March, 2008, for retention of:- 

"453 sq.m agricultural embryo storage facility with associated stores, office and farm workshop 675 sq.m wintering cattle facility, a new 357 sq.m feed store, new Envirocare wastewater treatment plant with percolation area, all with access from the R759 road at the Beattie farm, Tinode, Kilbride." 

6. As can be seen from the foregoing, the terms of the permission appear to provide for retention of two structures being the embryo storage facility and the wintering cattle facility allied to the erection of a new feed store and wastewater treatment plant. The granting of permission was subject to eighteen conditions but it is with conditions 1, 2, 3, 13, 14, 15, 16 and 17 that this application is concerned. In summary, these conditions provided:-

1. Permission refers to the development as described in the lodged documents;

2. Mr. Beattie should lodge the sum of €2,500 as security for compliance;

3. Mr. Beattie should lodge the sum of €2,000 as security for tree planting;

13. As this is the central issue in the case, I will quote it in full:- "Before the new entrance is brought into use, the existing entrance (off the N81) shall be permanently and effectively closed off by the erection of a boundary matching the existing boundary in height, design, construction and finish, unless otherwise agreed in writing with the planning authority";

14. 120m sight lines should be provided as per the layout plan;

15. Proposals for landscaping and tree planting should be submitted within three months;

16. Tree planting should be carried out during the first planting season;

17. The wastewater treatment plant should comply with certain standards and evidence of that should be submitted to the Council on completion.

7. The planning application was submitted with a covering letter from Mr. Taylor dated 17th May, 2007. In it, he referred to the fact that the application related to 20.8 hectares of the total farm area of 73.9 hectares and that the relevant portion contained the embryo unit to be retained as well as a then proposed winter feeding facility and a new house for Mr. Beattie. In the first page of the letter, Mr. Taylor referred to the fact that permission for this house had been granted on foot of 06/5174 but not yet constructed. On p. 2 of the letter, Mr. Taylor said the following:-

"It is proposed that there will be a shared entrance/exit for the house and the proposed wintering facility from the R759. See enclosed plans. It should be noted that permission has already been granted for an entrance at this location to serve the proposed new house. An application was previously made for this development but was refused on the grounds of access. It was proposed at that time to access the facility from the N81. This new application proposed an alternative means of access to the proposed facility."

8. Although in the course of the hearing of the appeal before me, counsel on behalf of the Council indicated that enforcement of all the above conditions was being sought, it is clear that the primary concern of the Council is with the existing entrance onto the N81, which has not been closed, and the corresponding fact that the entrance onto the R759 has not been constructed.

9. In 2011, with the expiry of the planning permission 06/5174 for the dwelling house fast approaching, Mr. Beattie applied for an extension to that permission. This was refused by the Council for one reason, namely that there was a significant change in the development objectives in the development plan since the date of the original permission such that the development would no longer be consistent with the proper planning and sustainable development of the area. Accordingly, the Council was precluded from extending the permission by virtue of s. 42(1)(a)(ii)(II) of the Planning and Development Act 2000, as amended.

10. What this reason in fact refers to is the intention of the roads authority to construct a new link road over part of the Beattie farm which would in effect destroy at least part of the development that would otherwise have been authorised under permission 06/5174.

11. One of the central issues in this case is whether the entrance onto the R759 was authorised under permission 06/5174 or alternatively, 07/1080. The Council argues that permission 07/1080 clearly on its face provides for access for the retained and new developments from the R759 and the failure to construct the new entrance means that Mr. Beattie is in breach of condition 13.

12. Mr. Beattie, on the other hand, contends that the new entrance to the R759 was neither applied for nor granted by permission 07/1080, but was in fact both applied for and granted by permission 06/5174 which has now expired and cannot therefore be implemented, the Council having refused an extension. Mr. Beattie says that condition 13 could only ever apply if and when the new entrance was constructed and as that cannot now happen, condition 13 can never be complied with and is accordingly unenforceable.

13. The Council counter this with the argument that the plans submitted by Mr. Taylor in respect of application 07/1080 clearly showed the new entrance and the development must be carried out in accordance with those plans and particulars. In response, Mr. Beattie says that it was of course appropriate and necessary to show what had already been granted on foot of permission 06/5174 when applying for the new permission. He argues that the plans submitted in support of application 07/1080 not only showed the new entrance but also the new house but it could not seriously be suggested that permission for the house was re-granted by 07/1080.

14. The touchstone in interpreting grants of planning permission is to be found in the unanimous judgment of the Supreme Court delivered by McCarthy J. in X.J.S. Investments Limited [1986] I.R.750 where he said (at 756):-

"Certain principles may be stated in respect of the true construction of planning documents:—

(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material.

(b) They are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning…" 

15. What the court therefore is concerned with in determining the true meaning of planning documents is what an ordinary member of the public would understand them to mean. Such meaning cannot be derived by reference to facts known only to the parties to the application but to such facts as are readily discernible from all of the planning documents that are available to the public when read as a whole. Those documents include of course not only the design drawings and plans but any correspondence on the planning file that is available for the public to peruse.

16. In the present case, such correspondence clearly includes Mr. Taylor's letter of 17th May, 2007. That letter includes a reference to the previous permission 06/5174 in respect of the dwelling house. Such a reference is also to be found in the terms of the pro forma planning application itself. Importantly however, it would be clear to any member of the public reading the passage in Mr. Taylor's letter which I have quoted above that permission had already been granted under the earlier permission for the new entrance and there was thus no requirement for a new application to be made for this entrance.

17. What was applied for under 07/1080 was "access" off the R759 and that is what was granted - not a new entrance onto the R759 because there was no requirement for such permission, same having already been granted a year earlier. I am fortified further in that view by the fact that permission 06/5174 contained explicit conditions, to which I have referred above, referable to the construction of the entrance whereas such or similar conditions are entirely absent from 07/1080. Further support for this conclusion is to be found in the contents of the respective public site notices posted by Mr. Beattie on the lands. The 2006 notice refers to a "new entrance to site" whereas the 2007 notice refers to "all with access from the R759 road".

18. The mere fact that the plans accompanying application 07/1080 showed the new entrance on the R759 cannot without more be taken as indicating that such permission was being applied for because as noted above, the plans also showed the dwelling house for which permission had similarly been granted on foot of 06/5174.

19. Even if it were not clearly the case that 06/5174 grants permission for the new entrance, the best that can be said from the Council's point of view is that there may be an element of ambiguity as between the meaning and intent of 06/5174 and 07/1080 vis-a-vis the new entrance. In an application for a s. 160 injunction, as in any other injunction application, the onus rests upon the moving party to establish, on the balance of probabilities, that unauthorised development has taken, or is taking, place. As that proposition, in the context of condition 13 at any rate, hangs on establishing that the new entrance is permitted under 07/1080 and not 06/5174, the Council must, in my opinion, be viewed as having failed to discharge that onus.

20. It must equally follow that the Council have failed to establish that there has been a breach of condition 13 because there is no requirement to comply with it unless and until the entrance onto the N81 is closed and the new entrance is brought into use, an event which cannot occur by virtue of permission 06/5174 being now spent. I think the Council's argument that the 07/1080 permission granted permission for the new entrance must also be viewed in the light of the fact that if it did, it was not applied for and this would prima facie render it ultra vires the Council. Since the permission must be assumed to have been granted intra vires , this is a further reason for concluding that the later permission did not grant the new entrance.

21. I turn now to the remaining conditions, apart from condition 13, of which complaint is made by the Council. Determining to what, if any, extent these should now be given effect , I must have regard to the well settled principles to be applied in s. 160 proceedings, usefully summarised by Barrett J. in St. Margaret's Concerned Residents Group & ors v. Dublin Airport Authority PLC [2017] IEHC 694 (at para. 86):- 

"It is a well-established principle of Irish planning law that the courts will disregard immaterial deviations from a planning permission, or trivial or technical breaches of same. ( Sweetman, (SC) ) [ Sweetman v. Shell E & P Ireland Limited [2016] IESC 2]). The question of the nature of any breach of planning permission is relevant on two levels. First, from a general perspective a breach may be sufficiently immaterial or trivial as not to amount to unauthorised development. Second, in the specific context of the discretionary nature of s.160 proceedings, even if there has been unauthorised development, the trivial or immaterial nature of any breach may be such that it is not appropriate to grant relief. In the court's view, the facts at issue in the within proceedings come into this second category."

22. As already discussed, although the Council did not abandon alleged breaches of conditions other than condition 13, the latter was very much the focus of this case. There was no realistic suggestion of a failure to otherwise carry out the development in accordance with the permission and in particular, in the context of the tree planting requirements, it appears to be conceded by the Council that Mr. Beattie has planted trees very extensively and far in excess of what was required of him under the terms of the permission. To that extent, insofar as conditions 2 and 3 are concerned, which require security deposits, I am satisfied no ongoing necessity for the lodging of such deposits has been established by the Council and any failure in that regard has now to be viewed as trivial or merely technical. The same considerations apply to conditions 15, 16 and 17. Condition 14 relates to sight lines for the new entrance but in view of the conclusions I have arrived at, this is no longer material.

23. For these reasons therefore, I propose to allow Mr. Beattie's appeal herein and dismiss the Council's application. 

Permanent public link to the judgement available here.

Shed built by couple beside their home was unauthorised, High Court rules

A couple who built a shed/workshop next to their Wicklow house without planning permission have failed in a High Court appeal challenging enforcement proceedings against them. Liam Lee and Jean Tompkins failed to establish the two-storey structure was built more than seven years before the local council brought proceedings against them. No action can be taken, by law, if proceedings are not brought within seven years from the start of the development. Mr Justice Seamus Noonan rejected an appeal by the couple over the dormer-type structure which is independent of their house at Kilmurry Lower, Baltinglass. Mr Lee obtained planning permission from Wicklow Co Council for a two storey dwelling on the land in 2003 and built a house there.

Read the full article @ The Irish Independent

The High Court judgement is provided below:

Wicklow County Council v LIAM LEE AND JEAN TOMPKINS [2019] IEHC 19

JUDGMENT of Mr. Justice Noonan delivered on the 15th day of January, 2019 1. This appeal is brought by the respondents from an order of the Circuit Court (Her Honour Judge Reynolds) made on the 30th June, 2015 pursuant to s.160 of the Planning and Development Act, 2000, as amended, whereby the respondents were enjoined to cease an unauthorised development on their property at Kilmurry Lower Baltinglass, County Wicklow being the property comprised in Folio 25510F County Wicklow. In the original motion before the Circuit Court, the applicant ("the Council") sought a wide range of reliefs which were granted but the within appeal is concerned only with that part of the order that related to an unauthorised dormer structure/dwelling, to which I will refer as "the shed/workshop", and the construction of an unauthorised wall, referred to as "the screen wall". 2. On the 16th May, 2002, the Council granted planning permission to the first respondent to build a single storey dwelling on the lands (reference 02/6132). On the 24th April, 2003, the Council issued a further permission to the first respondent for a change of house type from single storey to two storey (reference 02/7168). The dwelling house and associated works were duly completed on the land. 3. In or about 2013, it came to the Council's attention that a large two storey dormer structure, independent of the house, had also been constructed on the lands without permission. Further a large brick wall was constructed also without permission. It is not in dispute that both of these structures, the shed/workshop and the screen wall, are unauthorised. 4. The dispute in this case centres on a single issue, namely whether the Council are precluded from bringing the within proceedings by virtue of lapse of time. In that regard the relevant statutory provision is to be found in s.160 subs. (6) of the 2000 Act which provides as follows:   "(6) (a) An application to the High Court or Circuit Court for an order under this section shall not be made— (i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or (ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40) or, as the case may be, of the appropriate period as extended under section 42 …"   5. It can be seen therefore that where the development is one for which no permission has been granted, a seven-year limitation period applies but in the case of a development for which permission has been granted, the period is seven years from the expiry of the permission, which itself has a lifespan of five years, giving a total limitation period of twelve years. The affidavits in support of the application were sworn by the Council's assistant planner, Lucy Roche which detail the planning history of the matter. The issues that arise in these proceedings were first brought to Ms. Roche's attention in or about February of 2013 when she reviewed the file and, on the 21st March, 2013, carried out an inspection of the property. Although she could not access the site, she was able to observe that an unauthorised large dormer structure was constructed to the east of the dwelling enclosed by a large brick wall. 6. Arising from Ms. Roche's inspection, a warning letter was sent by the Council to the respondents on the 9th April, 2013. This resulted in the Council being contacted by a Mr. John O'Hanlon on behalf of the respondents who indicated that he had been requested to deal with the matters raised in the warning letter. Nothing further was heard from Mr. O'Hanlon and accordingly a second warning letter was sent on the 10th July, 2013. A second inspection was carried out by Ms. Roche on the 1st October, 2013 which disclosed no change and accordingly on the next day, the 2nd October, 2013 an enforcement notice was served upon the respondents. 7. This again elicited no response and a third inspection was carried out by Ms. Roche on the 21st January, 2014 again disclosing no change. In apparent response to the enforcement notice, on the 15th April, 2014 the first respondent applied for retention permission to the Council in respect of, inter alia , the shed/workshop. The Council's solicitors sought an undertaking from the respondents that they would cease the unauthorised development by letter of the 24th April, 2014 to which no response was forthcoming. Accordingly, the within proceedings issued on the 14th May, 2014. 8. A further retention application was made by the first respondent seeking retention of the screen wall on the 9th October, 2014. A fourth inspection was carried out by Ms. Roche on the 15th October, 2014. On the 20th November, 2014, the Council refused permission for the screen wall and by further decision of the 21st January, 2015, refused retention of the shed/workshop. 9. Following the refusal of the two retention applications, the first respondent swore a replying affidavit in these proceedings on the 27th April, 2015, when he raised for the first time the limitation issue on the basis that since more than seven years had elapsed between the commencement of the unauthorised development and the commencement of the proceedings, the Council could not pursue the matter further. Following the making of the order by the Circuit Court in April 2015, the respondents served notice of appeal and on the 30th June, 2015, again applied for retention permission of the existing dwelling house, garage and outbuildings as constructed. On the 3rd July, 2015, the Council granted permission for the dwelling house but refused retention of the garage and outbuildings. 10. In his first replying affidavit, the first respondent accepts that the shed/workshop and screen wall were built without planning permission. He claims however that the development commenced more than seven years prior to the institution of these proceedings. The first respondent's evidence in this regard is that the construction of the shed/workshop commenced on or about the 22nd April, 2004 and the foundations of the screen wall were constructed on the 3rd February, 2005. He refers to certain invoices for concrete he claims was purchased for this purpose. The first respondent's evidence in that regard is supported by an affidavit of Donougha O'Brien, a groundworks contractor who avers that in April 2004, he was engaged to excavate and lay foundations for the shed/workshop and screen wall, inter alia . 11. He further says that as a result of consulting his diary, he is satisfied that on the 20th April, 2004, he excavated foundations for the entrance wall and boiler house, neither of which are relevant to these proceedings. He goes on to say that on the 22nd April, 2004, he returned in order to pour the concrete floor of the shed/workshop. He does not appear to make any explicit reference to pouring the foundations for the screen wall. 12. The respondents rely on a further affidavit of Gerry Nolan, a block layer, who avers that he attended in early 2005 at the property to build the screen wall, the foundations of which were already completed. He does not appear to indicate what actual works were carried out by him or to what extent the construction of the screen wall was undertaken. In fact, this is confirmed by the first respondent's second affidavit. In response to an averment by Ms. Roche that an aerial photograph taken in 2005 does not appear to detail the garage or screen wall, the first respondent says the following: "For the avoidance of any doubt, the respondents have never claimed that these structures were completed before 2005. We maintain that these developments were, however, commenced in 2004 and 2005 respectively. I worked on those structures on a piecemeal basis after the development commenced: I purchased materials when I could afford them and I did the work myself. As a result, although the development commenced in 2004 and 2005, the shed (which was the last structure to be finished) was not actually completed until late 2010 or early 2011." 13. A number of Google Earth and Google Street View images are exhibited in the affidavits of Ms. Roche. A street view image from March 2009 clearly shows that while the screen wall is present, the shed/workshop is not, certainly above the level of the wall at any rate. The Google Earth image from 2010 appears to show items such as vehicles and/or containers in the area now occupied by the shed/workshop. Google Earth and Street View images from 2011 clearly however show the presence of the shed/workshop which appears to be fully or substantially completed. This appears to be confirmed by the first respondent in his affidavit above quoted where he says that the shed/workshop was not actually completed until late 2010 or early 2011. 14. It is notable however that there is no evidence before the court as to what precise works were done by the respondents or when they were done, either in terms of the shed/workshop or the screen wall. All that the evidence appears to establish is that the concrete for the workshop floor was poured in April 2004 and foundations for the wall possibly in 2005. It is thus not known when the screen wall that is to be seen in the 2009 photographs was actually constructed to the extent seen in those photographs, nor is there evidence of what degree of construction of the shed/workshop actually occurred before it was substantially or totally completed in 2010/2011. 15. The only persons who can establish these facts are the respondents who have chosen not to do so. In the case of the screen wall for example, the building of such wall, up to a certain height at any rate, may well have constituted exempted development under the planning code. It is only when the permitted height was exceeded, as it was here, that this development became an unauthorised development. There is no evidence before the court as to when this occurred. 16. I am satisfied that the authorities establish that where a time bar defence is relied upon by a developer in answer to an application under s.160, the onus rests upon the developer to prove when the development commenced - see Wicklow County Council v. Fortune [2012] IEHC 406. In tandem with that issue lies the question of when a development can be said to have commenced. In that regard, it is important to bear in mind that the evidence in this case, in relation to the shed/workshop at any rate, establishes that while some very preliminary work in the nature of concrete pouring may well have been undertaken in 2004, nothing of substance appears to have happened subsequently for some six years. In Dublin County Council South v. Balfe Ltd [1995] WJSC-HC 4391, this court (Costello J.) considered when a development had commenced for the purposes of an application under s.27 of the Local Government (Planning and Development) Act, 1976, the predecessor of s.160. In that case, as here, there had been a substantial lacuna between what the developer claimed was the commencement of the unauthorised user and its resumption. In that regard, the court noted (at p.4408):   "In my opinion when a use has been abandoned and then recommenced nearly four years later an occupant cannot rely on an earlier use to support a claim that the limitation period in the section should run from the earlier date and not from the date of recommencement. If construed in the way urged by the respondents it would be a simple matter to drive a coach-and-four through the section by discontinuing an unauthorised use after a warning notice had been served and then re-commence it again after several years when a limitation period based on the discontinued unauthorized user had expired, and I consider that the section cannot be so construed." 17. Although that case concerned user as distinct from construction, it seems to me that this logic must be equally applicable to the facts of the present case. It would for example clearly be an absurd construction of the section to suggest that because one block is laid and left in situ for ten years before a building is constructed that the development commenced with the laying of the block. In Kildare County Council v. Goode [1999] 2 IR 495, the Supreme Court had to consider whether quarrying activities carried on by the respondents on their lands required planning permission. They contended that the extraction of sand and gravel was a "works development" as defined by the Local Government (Planning and Development) Act, 1963. 18. Barron J., with whom the other members of the court agreed, found that the expression "works" was intended to refer to activity which was "carried out once and for all and as a means to an end rather than an end in itself. It was intended to apply to temporary activity involving the erection of structures or changes to or removal of existing structures" (at p. 502). 19. In my view, the concept of "commencement of the development" involves a reasonably continuous, but temporary, unitary process leading to a completion of the development in issue. Something which is done sporadically and piecemeal with intervening significant periods of inactivity and abandonment, cannot in my opinion amount to a "commencement of the development" within the meaning of s.160. Seen in that light, it seems probable that the development here which led to the completion or substantial completion of the shed/workshop can only be viewed as having commenced in or around 2010. However, it is not for the Council to prove that. 20. In relation to the shed/workshop, I am therefore satisfied that the respondents have not discharged the onus of establishing that the commencement of the development happened more than seven years prior to the institution of these proceedings. 21. With regard to the screen wall, as I have already indicated there is no evidence before the court as to when this was constructed, to its present height at any rate. As noted above, the development would only have become unauthorised once a certain height was reached and the respondents have chosen to put no evidence before the court of when this occurred. The pouring of the foundations, without more, cannot therefore amount to the commencement of the development, which of course can only refer to the unauthorised development. 22. For these reasons therefore, the respondents have failed to discharge the onus which rests upon them of establishing that the unauthorised development in issue commenced more than seven years prior to the institution of these proceedings. It is accordingly unnecessary for me to consider whether or not the longer twelve-year time limit would in any event be applicable to this case. I therefore propose to dismiss this appeal and affirm the order of the Circuit Court.

Public link to the judgement available here.

Key changes to Greystones plan

BUILDERS OF the €300 million redevelopment scheme under way at Greystones harbour in Co Wicklow are to seek increases in the residential and commercial elements of the project.

Sispar, a consortium involving John Sisk and Company and house builders Park Developments, in partnership with Wicklow County Council, is proposing to increase the number of new homes in the scheme from 341 to 375.

It also proposes to increase the commercial area to 6,425sq m – an addition of about 800sq m. Car parking at the €300 million redevelopment project is to be increased from 953 spaces to 1002.

Because of the involvement of Wicklow County Council the application is be decided by Wicklow county councillors under Part VIII of the Planning and Development Act, which does not provide for an appeal against the local authority’s decision.

Sispar had initially sought planning permission for 375 homes, the maximum allowed under the County Development Plan. But this was reduced by An Bord Pleanála to 341 in a move designed to reduce the bulk of the new homes at the front of the project and create a larger civic square.

Sispar said the use of Part VIII of the Planning and Development Act was not a move to undermine the planning board’s decision. Spokesman Paraic Keogh said the board’s decision had been designed to create a civic square and this would be retained in the project. The additional apartments would be located to the rear of the development, on part of a site reserved for a 16-acre park. The move would utilise about three acres of the park.

The commercial changes proposed include the redesignation of most of a block of apartments known as “block D” fronting on to the civic square, for commercial purposes.

This increased commercial space would then be used for a primary care, medical centre. Mr Keogh said a deal had already been agreed with healthcare company Meret, which had an agreement with the HSE.

Wicklow County Council director of services Seán Quirke said the application would be the subject of four weeks of public consultation, followed by two weeks for objections.

The decision would ultimately be made by a vote of elected councillors and there was no provision in Part VIII of the Planning Act to appeal the decision either to the council or to the planning board.

The application to reconfigure block D is to be made next week, followed in July by the application to change the number of new homes. Work on the existing harbour walls is due to be completed by this October.

Should planning permission be granted, work will then get under way on the development of the reconfigured block D, car parking and the civic square.

Work would also continue on the provision of facilities for local clubs.

By the end of 2011 hoardings opposite the Beach House pub and Bayswater Terrace would come down and the public would have access to the square and the waterfront.

No date for the start or completion of the housing elements of the plan was given.

According to Mr Keogh the application to vary the development represented a firm commitment to complete the project. “Sispar are prepared to finish with this subject to achieving the necessary amendments,” the company said.

The alternative is that the harbour walls would be completed with an unfinished public square and routes through the site to the sea for boat users, the developers said.

Irish Times

www.buckplanning.ie

€60,000 dumping fine for waste firm and boss

A WASTE disposal company and its director, Louis Moriarty, have been fined a total of € 60,000 at Dublin Circuit Criminal Court for illegal dumping in Co. Wicklow.

Judge Tony Hunt said it was ironic that hotelier Moriarty (68) was now trading on Ireland's image as a green and beautiful country in his current business in contrast to his illegal dumping activities nine years ago.

Swalcliffe Ltd , trading as Dublin Waste, of East Wall Industrial Complex, Dublin 3, pleaded guilty, through solicitor Mr Vincent Shannon, to holding or disposing of waste in a manner that caused or was likely to cause environmental pollution on dates in 2001 at lands owned by Clifford Fenton at Coolnamadra, Donard.

Company director Moriarty, of Griffith Avenue, Drumcondra, pleaded guilty to disposing of waste in manner that could cause pollution at the Coolnamadra site and at Whitestown, Baltinglass over three months in 2001.

Moriarty had made a saving of between €1,000 and €2,250 per lorry load by dumping the waste illegally.

Judge Hunt noted that although Moriarty was only responsible for 14 lorry loads or 350 tonnes of waste from the total of 8,000 tonnes ultimately recovered from Coolnamadra, he had paid over €1.3 million for remediation of the entire site all waste.

There was some hospital waste dumped by Swalcliffe at this site but it was largely non-hazardous.

He said that compared to any commercial benefit gained the cost of the remediation 'was a punishment in itself '.

Judge Hunt noted that Mr Patrick Gageby SC, defence counsel for Moriarty and Swalcliffe, had indicated that Moriarty was also willing to pay for remediation work at Whitestown but this has been held up due to civil proceedings.

Mr Gageby said a sum in excess of one million euro could be made available for the work.

An estimated 8,000 tonnes of waste in 314 lorry loads was deposited at Whitestown by Moriarty's company including mixture of demolition waste and household waste. There are an estimated 90,000 tonnes of waste at Whitestown in two landfills for which prosecutions have been brought against a number of people.

Mr Donal O'Laoire, environmental consultant, gave evidence that remediation of the entire site at Whitestown would cost approximately €3.8 million euro.

Judge Hunt said the risk to the environment had been eliminated at Coolnamadra and he could not see significant actual damage at Whitestown but understood there was the potential for pollution as long as the waste remained.

Detective Garda Declan O'Brien told Mr Paul Murray BL, prosecuting, that the gardai became involved in the case in February 2002 when they received a complaint from Wicklow County Council after a council worker observed a lorry entering the site at Coolnamadra and

investigations were carried out in the area.

Moriarty was interviewed by gardai on a number of occasions and admitted dumping waste from his sorting premises on East Wall at the two sites in Wicklow after the landowners had agreed to accept waste.

Swalcliff has two previous convictions and Moriarty one previous conviction in relation to similar activities

Mr. Gageby said the remediation of Coolnamadra was an example of 'the polluter pays' and submitted that Moriarty had been 'stymied' in his efforts to do similar work at Whitestown by the ongoing civil case.

A number of other people have already been sentenced at Dublin Circuit Criminal Court in relation to illegal dumping activities at Whitestown and Coolnamadra sites.

Wicklow People

www.buckplanning.ie

€60,000 dumping fine for waste firm and boss

A WASTE disposal company and its director, Louis Moriarty, have been fined a total of € 60,000 at Dublin Circuit Criminal Court for illegal dumping in Co. Wicklow.

Judge Tony Hunt said it was ironic that hotelier Moriarty (68) was now trading on Ireland's image as a green and beautiful country in his current business in contrast to his illegal dumping activities nine years ago.

Swalcliffe Ltd , trading as Dublin Waste, of East Wall Industrial Complex, Dublin 3, pleaded guilty, through solicitor Mr Vincent Shannon, to holding or disposing of waste in a manner that caused or was likely to cause environmental pollution on dates in 2001 at lands owned by Clifford Fenton at Coolnamadra, Donard.

Company director Moriarty, of Griffith Avenue, Drumcondra, pleaded guilty to disposing of waste in manner that could cause pollution at the Coolnamadra site and at Whitestown, Baltinglass over three months in 2001.

Moriarty had made a saving of between €1,000 and €2,250 per lorry load by dumping the waste illegally.

Judge Hunt noted that although Moriarty was only responsible for 14 lorry loads or 350 tonnes of waste from the total of 8,000 tonnes ultimately recovered from Coolnamadra, he had paid over €1.3 million for remediation of the entire site all waste.

There was some hospital waste dumped by Swalcliffe at this site but it was largely non-hazardous.

He said that compared to any commercial benefit gained the cost of the remediation 'was a punishment in itself '.

Judge Hunt noted that Mr Patrick Gageby SC, defence counsel for Moriarty and Swalcliffe, had indicated that Moriarty was also willing to pay for remediation work at Whitestown but this has been held up due to civil proceedings.

Mr Gageby said a sum in excess of one million euro could be made available for the work.

An estimated 8,000 tonnes of waste in 314 lorry loads was deposited at Whitestown by Moriarty's company including mixture of demolition waste and household waste. There are an estimated 90,000 tonnes of waste at Whitestown in two landfills for which prosecutions have been brought against a number of people.

Mr Donal O'Laoire, environmental consultant, gave evidence that remediation of the entire site at Whitestown would cost approximately €3.8 million euro.

Judge Hunt said the risk to the environment had been eliminated at Coolnamadra and he could not see significant actual damage at Whitestown but understood there was the potential for pollution as long as the waste remained.

Detective Garda Declan O'Brien told Mr Paul Murray BL, prosecuting, that the gardai became involved in the case in February 2002 when they received a complaint from Wicklow County Council after a council worker observed a lorry entering the site at Coolnamadra and

investigations were carried out in the area.

Moriarty was interviewed by gardai on a number of occasions and admitted dumping waste from his sorting premises on East Wall at the two sites in Wicklow after the landowners had agreed to accept waste.

Swalcliff has two previous convictions and Moriarty one previous conviction in relation to similar activities

Mr. Gageby said the remediation of Coolnamadra was an example of 'the polluter pays' and submitted that Moriarty had been 'stymied' in his efforts to do similar work at Whitestown by the ongoing civil case.

A number of other people have already been sentenced at Dublin Circuit Criminal Court in relation to illegal dumping activities at Whitestown and Coolnamadra sites.

Wicklow People

www.buckplanning.ie

Councillors seek inquiry into issuing of permit

Members of Wicklow County Council have voted to ask the Minister for the Environment to hold a full public inquiry into “all aspects of the performance and functions of Wicklow County Council” in the issuing of a waste management permit in 2003.

The councillors, who passed the resolution by 14 votes to five, also resolved that the handling of a previous investigation by the Department of the Environment’s Local Government Audit Service (LGAS) be itself investigated.

Speaking at a special meeting of the county council, Independent councillor Tommy Cullen said the issue related to allegations that the council’s then director of services, Michael Nicholson, had ordered the shredding of a waste permit covering lands at Ballybeg, near Rathnew, in January 2003.

The waste permit had a commercial value of more than €400,000, he said and he claimed the Byrne family who owned the land could have lost their farm, been fined up to €12.7 million and faced up to 10 years in jail if they had been convicted of operating a waste facility without a permit.

A draft report of the previous LGAS investigation noted that Mr Nicholson had ordered the permit removed from the file and shredded.

The LGAS report noted that Wicklow county manager Eddie Sheehy had told the LGAS inspector he felt he had not been given accurate information by Mr Nicholson.

In an at times heated debate, Mr Sheehy said he was “appalled” to read in The Irish Times before Christmas that he had received inaccurate information on a number of occasions from Mr Nicholson. He said he wanted to make it clear that any information provided by Mr Nicholson was something Mr Nicholson had himself been told - “and not something he had made up”. He asked that the newspaper note his remarks.

However, he also acknowledged that inaccurate information relating to the waste permit was given to the Byrne family, the elected councillors and solicitors for the Byrne family, in denying that a waste permit had been shredded.

Mr Sheehy said the LGAS had ultimately determined that an “administrative error” had occurred, which had no further implications for the council. A new waste permit had been issued by the council.

He also said the Byrnes were ultimately able to realise the value of the reissued permit and the council had apologised for giving inaccurate information to the Byrnes’ solicitors. Mr Sheehy said he would co-operate with any properly held inquiry.

The Irish Times

www.buckplanning.ie

Wicklow County Council - Forward Planning

In answer to a phone call today, Forward Planning is the area of Wicklow County Council's Planning Department which deals with the preparation and review of the County Development Plan, Local Area Plans, Town Plans, Heritage and Protected Structures.

If you want to make a submission to the Planning Department in respect of any area of the County, it is to this Department the submission goes.

www.buckplanning.ie

Council call for help to deal with planning application

WICKLOW County Council has requested the assistance of An Bord Pleanála in dealing with a planning application from Multimetals Recycling Limited for a facility on the Murrough.

Under Section 5 of the Planning Act, Wicklow County Council has referred the case to An Bord Pleanála to decide whether the provision of a metal recycling facility and construction of a 1.8m high wall is or is not development and is or is not exempt development. Section 5 involves a referral of a declaration by a planning authority of a question as to what is or is not development or exempted development.

The case is to be decided by April 29. A number of objections to the planning application have already been lodged with Wicklow County Council, including objections from Friends of the Murrough and others.

Wicklow People

www.buckplanning.ie

Waste permit controversy

A FORMER director of Environmental Services at Wicklow County Council had a signed waste permit and removed and replaced with an unsigned version.

Papers released by the Department of the Environment under the Freedom of Information Act show that the existence of the permit only came to light after the Environmental Protection Agency (EPA) said it had a copy of the permit retained in its files.

The waste permit related to land belonging to the Byrne family of Ballybeg, Rathnew. The family had agreed to let a road building consortium to use a site as a 'borrow' pit, for the extraction of soil and later for infill, as part of the construction of the Ashford/Rathnew bypass.

The deal, worth €400,000 was dependent on Wicklow County Council granting a waste permit.

The FOI documents include a draft report by the Local Government Audit Service (LGAS). The main report couldn't be found but Information Commissioner, Emily O'Reilly, felt the draft report appeared to be 'a largely factual statement of events', while noting the main LGAS file 'has apparently disappeared without explanation.'

In the report it is revealed that Michael Nicholson, the then Director of Environmental Services, signed the waste permit on Friday, January 17, 2003. But three days later on Monday, January 20, he instructed the removal of the signed copy from the file to be replaced with an unsigned permit. The signed permit was shredded and a copy being sent to the applicant was withdrawn from the post.

Letters show that the Environmental Department of Wicklow County Council wrote to solicitors for the Byrne family on March 10 2003, stating 'your clients visited our office last week and the full file was made available to them.' The letter added that the waste permit 'has not being signed yet.'

Wicklow County Council did issue an apology to the landowner for giving false information and a new permit was signed by Mr. Nicholson on May 15 2003 and backdated to January 17.

The draft report says it was Mr. Nicholson's contention that he was acting to save the council money because payments from the contractor to the landowner could add to the final road bills the council would end up paying the contractor.

LGAS Director of Audit, Noel O'Connell wrote to Minister of the Environment at the time, Dick Roche, stating that 'an administrative error occurred but had no wider implications for the overall quality of the councils systems and procedures in the area of waste management.'

Myles BUCHANAN
Wicklow People

www.buckplanning.ie

Draft County Development Plan 2010 - 2016 - Wicklow County Council

Closing date for submissions is 23rd of December 2009.

www.buckplanning.ie

Wicklow waste permit was shredded

A FORMER director of environmental services at Wicklow County Council removed a signed waste permit worth €400,000 from a council file, replaced it with an unsigned version and shredded the original, according to papers released under the Freedom of Information (FOI) Act.

The FOI documents, released by the Department of Environment after a 16-month discussion with Information Commissioner Emily OReilly, also reveal the then director of environmental services, now director of housing services Michael Nicholson, subsequently denied on a number of occasions that the waste permit had ever been signed or issued.

The existence of the original permit only came to light after the Environmental Protection Agency (EPA) said a copy of the permit, dated January 17th, 2003, and signed by Mr Nicholson, had been issued to it and had been retained in its files.

Wicklow County Council subsequently apologised for giving false information to solicitors for the landowner, and a new waste permit was signed by Mr Nicholson on May 15th, 2003. It was backdated to January 17th on the advice of the council’s law agent.

The waste permit related to the creation of a “borrow” pit on land belonging to the Byrne family of Ballybeg, near Rathnew. A road-building consortium had agreed with the Byrnes to use a site on the Byrne family lands as a borrow pit, first for the extraction of soil and later for infill, as part of the construction of the Ashford-Rathnew bypass.

The deal was worth about €400,000 in payments to the Byrnes, but was dependent on Wicklow County Council granting a waste permit.

The FOI documents, released to Independent councillor Tommy Cullen, include copies of correspondence from Wicklow County Council to councillors, the landowners and the landowners’ solicitors on the issue, as well as a draft report on the issue by the Local Government Audit Service (LGAS).

The main LGAS report could not be found. But the Information Commissioner ruled the draft report should be released, noting it appeared to be “a largely factual statement of events” and that the “the main LGAS file has apparently disappeared without explanation”.

The draft report records Mr Nicholson personally signed the waste permit on Friday, January 17th, 2003. But on the following Monday, January 20th, he instructed the signed copy be taken from the file and replaced with an unsigned permit. The signed permit was shredded and a copy which was being sent to the applicant was withdrawn from the post.

Letters released under the FOI Act show Mr Nicholson’s department wrote to solicitors for the landowners on March 10th, 2003, stating “your clients visited our office last week and the full file in the case was made available to them”. The letter continued that, from the file, it could be seen that the waste permit “has not been signed yet”.

The draft report notes Mr Nicholson’s contention that he had acted to save the council money, as payments from the contractor to the landowner could add to the final roads bill which the council would pay the contractor.

A letter from the LGAS director of audit Noel OConnell reported to then minister for the environment Dick Roche that “an administrative error occurred within the council”. However, Mr O’Connell said the error had “no wider implications for the overall quality of the councils systems and procedures in the area of waste permitting”.

In a statement to The Irish Times, Mr Nicholson, on behalf of the council, said: “This matter was the subject of an investigation by the director of audit of the Department of Environment, Heritage and Local Government and in his report in December 2005 he stated that the overall system for issuing waste permits in Wicklow County Council was properly carried out.”

But Mr Cullen called on the LGAS to say how it arrived at its conclusion that “an administrative error” had occurred in relation to the granting of the waste permit. The documents offered no explanation as to how this conclusion was arrived at, he said.

Irish Times

www.buckplanning.ie

Councillors cannot get transcripts in Wicklow dump case

MEMBERS OF Wicklow County Council have been told they cannot have transcripts of evidence given to the High Court by county manager Eddie Sheehy.

Mr Sheehy’s evidence was given in a civil case taken by the county council against a number of waste operators and the current and former owners of an illegal dump at Whitestown quarry in west Wicklow. The cost of the clean up has been estimated to be as high as €60 million.

In a case listed to continue next month, the High Court is considering allegations that the council’s own contractor had dumped thousands of tonnes of highly polluting tar and bitumen at Whitestown, while council staff had carried out gate duties and directed lorry drivers to where they should dump.

The High Court is also considering allegations that senior management at the council was aware of Whitestown dump several years before the council announced its environmental staff had discovered it “by accident” in 2001.

Council chairman Pat Vance (FF) said transcripts could not be circulated. Instead, he circulated the opinion of two senior counsel advising that circulating the transcripts may lead to their contents falling into the wrong hands.

The council apologised to the court last month for circulating transcripts of the manager’s evidence to the council’s consultant on cleaning up the dumps, Donal Ó Laoire, in breach of a High Court undertaking.

At a council meeting there were angry exchanges as some 11 councillors voted in favour of suspending standing orders to discuss the case, while 10 councillors opposed the motion. The motion was not carried as it did not garner a required majority of two-thirds of members.

Irish Times

www.buckplanning.ie

Call for release of secret files on dumping

THE DEPARTMENT of the Environment has been criticised by the office of the Commissioner for Environmental Information, Emily O’Reilly, for refusing to disclose information on waste licensing, planning and illegal dumping in Wicklow.

Ms O’Reilly’s office also expressed concern that “a relevant file” was discovered to be missing only after her office sought a copy.

The role of the Commissioner for Environmental Information is similar to that of the Commissioner for Freedom of Information, and both commissionerships are occupied by Ms O’Reilly.

The criticisms were contained in a summary of “preliminary views” sent by Ms O’Reilly’s environmental information office to Wicklow county councillor Tommy Cullen in June.

Mr Cullen had sought access to documents from the Department of Environment relating to illegal dumping in Wicklow, the issuing of a waste licence for lands at Ballybeg, Rathnew, and the making of the Baltinglass town plan.

According to the “preliminary views” seen by The Irish Times, the commissioner’s office recommended that 45 of 50 records withheld by the Department should be released.

Ms O’Reilly’s office also said it was “disappointing” that while the initial request was made by Mr Cullen in July 2008, and the office had sought copies of records in November of that year, “further relevant records were being identified as late as April 2009”.

The commissioner’s office was also critical that one file, a local government audit service review of the circumstances surrounding the issue of a waste permit for lands at Ballybeg, “has been misplaced and has not been located after extensive searches”.

The office expressed concern that while the Department was aware of the file, it had only discovered it was missing when the commissioner requested a copy.

The audit service review related to complaints about Wicklow County Council’s handling of the Ballybeg waste licence application.

The commissioner’s office also expressed concern that the Department “at no point” appeared to have addressed “the public interest” in the records. It said it appeared “there is considerable public interest in information being released about illegal dumping and planning matters in Co Wicklow”.

The identification of additional files after the commissioner’s office became involved “calls into question efforts made by the department to fully identify all relevant information at the outset”.

The office also found that many of the records relating to the making of the Baltinglass town plan were factual in nature and should be released.

However, it said that while Mr Cullen “may be of the view that further records should exist, this does not necessarily mean that such records do exist”.

A spokesman for the Department of the Environment said considerable work had been done in identifying records. The missing file was itself an audit of other files that had been found.

Irish Times

www.buckplanning.ie

Action over costs of cleaning up illegal dump in Wicklow

A LEGAL action to determine who is responsible for the costs of restoring lands in west Co Wicklow on which large quantities of untreated hospital and other hazardous waste were dumped has opened before the High Court.

Wicklow County Council has claimed the dumping caused, and continues to cause, environmental pollution and has denied claims it too was engaged in dumping waste on the lands at Whitestown, Co Wicklow, situated between Blessington and Baltinglass in the flood plain of the Carrigower river, a tributary of the river Slaney.

Mr Justice Daniel O’Keeffe is hearing two sets of proceedings to determine what remediation works should be carried out and who is liable for the costs of such works.

In the first action, Wicklow County Council is seeking orders under the Waste Management Act against the former owner of the Whitestown lands, John O’Reilly; Brownfield Restoration Ireland Ltd, which bought the lands from Mr O’Reilly in 2003; and two waste companies, Swalcliffe Ltd, trading as Dublin Waste, and Dean Waste Co Ltd.

The council claims John O’Reilly has admitted he had allowed Dublin Waste and Dean Waste to dump waste on the lands and had received payment for that. It also claims Brownfield entered into a contract with Mr O’Reilly in 2003 to buy the lands and took possession of the lands in September 2003 in full knowledge of the illegal activities.

Investigations carried out on the Whitestown site had revealed some 286,000 tonnes of waste, which in turn had contaminated surrounding soil, the council claims. Some 1,140,000 tonnes of waste and contaminated soil will need to be removed and/or treated, it argued.

One landfill area on the site had been found to hold more than 90,000 tonnes of waste, equivalent to the loads of some 4,686 20-tonne waste trucks, the council said. Material in that area had been traced to Dublin Waste, including blood and hospital waste.

The council claims most of that waste was put there in 2000 and 2001, but some could date back to the late 1990s.

The council claims Dean Waste dumped other waste in another landfill area on the site and alleges there is evidence to support claims that company was responsible for a large volume of polluting material found on that site.

Dean Waste claims it dumped only construction and demolition waste there in early 1998 and such waste is not an environmental hazard. Other waste on another landfill site, including the remains of a burned out pub, appeared to relate to Mr O’Reilly only, the council claimed. In its claim against Brownfield, the council claims it has been the holder of the waste since it took possession of the lands in 2003 and remains in possession or control of the waste.

It alleges Brownfield has ongoing obligations which, under the Protection of the Environment Act 2003, render it accountable for the waste on the site.

In cross-proceedings, Brownfield and Dean Waste alleges the council was itself engaged in dumping on the lands, including of road work materials, and should bear the remediation costs. The council denies those claims.

Irish Times

www.buckplanning.ie

Greystones harbour development not at risk, claims council

FEARS THAT the housing market downturn could scupper the €300 million redevelopment of Greystones harbour have been rejected by Wicklow County Council.

Responding to local concern that the five-year project – which is dependent on the sale of 341 housing units – could be halted by the recession, council chairman Derek Mitchell said 80 per cent of the new harbour’s south wall was already in place.

He said this, and a €10 million builders’ bond, would ensure that the harbour with its two public slipways and maritime club houses would be completed by autumn 2010, which he said would be “only a few months late”.

He said hoardings around the south side of the harbour would likely come down then, and the 230-berth marina would be completed later, “even if the housing at the northern end is mothballed for a while”.

The council’s spokesman on the project Seán Quirke said the developers were concerned at the fall in house prices, but insisted this was not affecting their commitment.

He said work on completing the outer walls had recently gone to a double shift and divers were working “until midnight and afterwards” in a bid to have the walls completed before next winter.

Sea swells last winter caused some movement in giant cement blocks before rock armour could be put in position and as a result by spring the project was running three months behind.

Work on the club houses has been put back to next winter to focus on completing the sea walls.

The council’s private sector partners are civil engineers John Sisk and home builders Park Developments, working as the Sispar Consortium. The project, which included the compulsory acquisition of properties on the sea front, is heavily dependent on the sale of the 341 new homes with retail facilities, and income from the marina.

In 2006 Mr Quirke said that “what has kept the scheme viable is the strong performance of the property market”. Mr Mitchell said he was confident there was always a market for houses in Greystones, and the timeframe of completion by 2013 could allow for a pause in house building if needed.

Irish Times

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Fresh ethics inquiry facing Wicklow's Cllr. Whittle

WICKLOW County Council's ethics committee has been ordered by the High Court to carry out a fresh inquiry into complaints that Cllr. Fachtna Whittle breached ethics legislation.

Cllr. Whittle, who is also a solicitor, is accused by Green Party Senator Deirdre de Burca of proposing and voting for the rezoning of land without disclosing that the land belonged to an owner his law firm had represented.

On Wednesday, Justice John Hedigan ruled that the ethics committee hadn't dealt with the right questions while reviewing the case.

In June of 2005 the committee released its findings, mainly that while Cllr. Whittle had been 'unwise to propose the motion he did' he had no ' beneficial or pecuniary interest' and the complaint was 'unjustified'.

Justice Hedigan has now quashed that report and has directed the Council to review the matter. He felt that if the Council had properly construed the provisions of the local government act 2001 relating to ethical frameworks then the ethics committee wouldn't have reached the conclusion it did.

Senator de Burca had argued that the report failed to ask did Cllr. Whittle have a beneficial interest, within the meaning of section 176.2 of the 2001 act, when proposing the rezoning of lands at Ballylusk, Ashford to extend a quarry there.

She felt he had breached the ethics provision by failing to disclose that his legal firm was acting for the quarry owner in legal proceedings trying to determine the planning status of the site.

Cllr. Whittle argued that even if the rezoning had been adopted it wouldn't have had an affect on those proceedings, and that he was only aware of the proceedings involving the landowner in a very 'general way'.

Judge Hedigan ruled that the council had failed to consider the concept of a deemed beneficial interest under Section 176 (2) of the Act and had 'made a serious error of law'. The ethics committee must now carry out a second investigation under which councillors provide details of declarable interests as part of the annual declaration.

Myles BUCHANAN
Wicklow People

www.buckplanning.ie

New inquiry into councillor's role in rezoning

THE HIGH Court has directed Wicklow County Council’s ethics registrar to carry out a fresh inquiry into a complaint by Green Party Senator Deirdre de Búrca that Fianna Fáil councillor Facthna Whittle, who is also a solicitor, breached ethics legislation by proposing and voting for a quarry rezoning motion without disclosing his law firm had acted for the quarry owner in legal proceedings.

Mr Justice John Hedigan yesterday ruled the council’s ethics committee had not dealt with the correct questions in its report reviewing the conduct of Mr Whittle.

A report by the council and the county manager in June 2005 had concluded that Mr Whittle had acted unwisely but had not breached ethics legislation.

Quashing that report yesterday and directing the council’s ethics registrar to review the matter, the judge said it did not seem possible to him that the committee could have reached the conclusions it did had it properly construed the provisions of the Local Government Act 2001 relating to the ethical framework for local government service.

The judge also said criticism levelled at Ms de Búrca in the media in the wake of the report, was “unfair and vitriolic”.

She was not a crank seeking to disturb the administrative regime but had a well-founded actionable interest to ensure that high ethical standards in public office are maintained, he said.

In her challenge to the committee’s report, Ms de Búrca argued the authors of the report had simply failed to ask themselves the correct question: did Mr Whittle have a beneficial interest, within the meaning of Section 176.2 of the 2001 Act, in the motion? As a solicitor whose firm was acting for the landowner involved, Ms de Búrca’s case was that he did.

The report was compiled after Ms de Búrca formally complained to the ethics registrar of the council about Mr Whittle’s conduct during a council meeting on the county development plan on July 12th, 2004.

Mr Whittle had proposed the rezoning of lands at Ballylusk, Ashford, to extend a quarry there.

Ms de Búrca claimed Mr Whittle breached the ethics provisions because he failed to disclose that the solicitors’ firm of which he is principal was acting for the quarry owner in legal proceedings concerning the planning status of the site.

Mr Whittle had argued he was only aware of the judicial review proceedings concerning the landowner in a general way and even if the rezoning had been adopted, it would have had no effect on those proceedings.

In his judgment, Mr Justice Hedigan said he was quashing the report and remitting the matter for further consideration to the council’s ethics registrar under which councillors provide details of declarable interests as part of their annual declaration.

He said he did not find merit in the arguments of the council and Mr Whittle that the report had dealt with the correct questions in the absence of clear evidence to the contrary. The council had patently failed to consider the concept of a deemed beneficial interest under Section 176 (2) of the Act and in failing to do so, had made “a serious error of law”.

Irish Times

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Shopping centre near Greystones refused planning

AN BORD PLEANÁLA has refused planning permission for a shopping centre which was to be at the heart of a large-scale development on the outskirts of Greystones, Co Wicklow.

The planning authority granted permission for other elements of the town centre style scheme on a 100-acre site at Charlesland, some 3km from Greystones town centre, including offices, an enterprise centre and sites for a proposed new Garda station and primary school.

The scheme, which was to be located beside the existing Charlesland development of 1,500 homes, was to consist of 20,000sq m of shops, 26,000sq m of offices, 16,000sq m of retail warehousing, 11,500sq m of motor showrooms, as well as light industrial units and 260 new homes.

However, a report by an An Bord Pleanála inspector said the shopping centre would conflict with national policy contained in the Retail Guidelines for Planning Authorities Act of 2005 which would favour the location of such a facility in the town centre.

The report also said the development would undermine the designated role of Bray to serve the county’s retail needs.

“The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area,” it continued.

The development was proposed by Zapi Ltd – a property company controlled by Seán Dunne of Mountbrook Homes and Seán Mulryan of Ballymore.

Zapi was to contribute €100,000 towards the development of a Greystones heritage centre and €500,000 towards the cost of a recycling facility for the town.

Wicklow County Council approved planning permission for the development in December 2007, but three appeals were subsequently lodged against the scheme.

The cathaoirleach of Wicklow County Council, Cllr Derek Mitchell of Fine Gael, said he was disappointed by the decision and believed that in the current economic climate, the development was unlikely to go ahead without the shopping centre.

Cllr Mitchell said the arrival of big name retailers and an enterprise centre would have generated much needed employment for the area and reduced Greystones dependency on commuting.

Irish Times

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