EU's highest court upholds complaints against Ireland

THE GOVERNMENT has broken EU law by failing to conduct environmental impact assessments before allowing work to start on private road projects.

The European Union’s highest court has also ruled that the Irish public is being denied its right under EU law to appeal against developments that could have a significant effect on the environment without facing prohibitive legal costs.

In a judgment yesterday, the European Court of Justice said the practice whereby Irish courts could choose to waive legal costs for an unsuccessful party appealing on environmental grounds did not conform to European law.

The court said it “is merely a discretionary practice on the part of the courts” and could not be regarded as “valid implementation of the obligations arising from” EU directives dating from 1985 and 2003.

The EU directives set out that the procedures established by governments for appealing projects on the basis that they may have a significant effect on the environment should not be “prohibitively expensive”. They form part of a series of EU laws passed over the past three decades aimed at giving the public more rights to participate in the planning project for developments.

The ruling from the European Court of Justice could prompt a major reform of Irish law regarding the financing of planning appeals on environmental grounds.

A spokesman for Minister for the Environment John Gormley said he welcomed the clarification given by the court.

“It is a complex judgment that relates to agencies and bodies outside the Department of the Environment,” Mr Gormley said. “We will engage proactively with the Attorney General and other State agencies to see how best we can implement the judgment.”

The Government said the first part of the judgment, related to not conducting environmental impact assessments before work began on private road projects, had been addressed by the Government.

It has also pledged to try to address a third complaint upheld by the European Court of Justice against a lack of public participation in the planning consent processes handled by agencies such as the Office of Public Works and the Department of Agriculture.

The court found that there were not adequate opportunities for the public to appeal certain types of projects handled by these departments. It found this was contrary to EU law.

However, the European Commission, which took the case against Ireland, was not successful in arguing several other points where it felt the Government had not properly transposed EU directives into national law. For this reason the court ruled that the commission and the Government should bear their own costs in the case.

Irish Times

www.buckplanning.ie

New rules to protect Tara area

NEW PROTECTIONS for the Tara-Skryne Valley, which would prevent the construction of retail parks and superstores along the route of the M3, have been announced by Minister for the Environment John Gormley.

Mr Gormley said he could not prevent the construction of the motorway near the Hill of Tara, which continues to be the subject of protests by environmental and heritage groups, but he could protect the landscape to prevent inappropriate development.

In conjunction with Meath County Council, Mr Gormley proposed to designate the Tara-Skryne Valley a Special Conservation Area. This would protect the archeological and historic landscape and make it difficult for any construction to take place within the zone. However, Mr Gormley said it would in particular stop the type of large-scale development, such as shopping centres, or retail parks, which have been built along motorways in the past.

“This will ensure that the very negative sort of development associated with motorways will not impinge on the area . . . the sort of motorway development we’ve seen in the past, the BQs, that would not be acceptable.”

The plans for the designation, which has been allocated €50,000 funding from the Department of the Environment and the Heritage Council, will have to be submitted for public consultation and agreed by Meath county councillors before the designation is confirmed. It is likely that the protection will be in place by the middle of next year.

Mr Gormley said he also intended to increase the protection for national monuments in the new National Monument’s Act, which is currently at draft stage.

Irish Times

www.buckplanning.ie

Call to take drinking water role away from councils

THE OPERATION of drinking water treatment plants should be taken away from local authorities and outsourced to private companies because of repeated failures to provide safe water, the ESRI says.

The economic think-tank has called for a national authority to be established to take responsibility for providing water which meets EU safety standards.

Using data from the Environmental Protection Agency, the ESRI says that at least one water supply in all Irish cities and counties failed to meet EU standards in 2007.

It also notes that more than 5pc of the population had their drinking water polluted with manganese, iron, lead or aluminium, and that the percentage of people suffering from biological contamination, including e-coli, is "even larger".

"At first sight, these results are alarming," it says.

The 'Drinking Water Quality' bulletin published yesterday says that in 2007, the most recent year for which data is available, water quality was not much better than in 2006.

Skills

In 2006, 88pc of people had something wrong with their water and in 2007 this was 85pc. Many sources that reported a problem in 2006 continued to report the same problem in 2007.

"Maintaining drinking water quality requires particular skills and expertise as well as resources. Given the results set out above, it is questionable whether the existing system, with the local authorities at the centre, is equipped to guarantee drinking water quality," the report says.

It adds that in some counties, the number of people using local supplies do not justify employing a full-time expert to operate plants, and that the civil service "does not offer a career perspective" for specialists.

While local authorities should remain responsible for ensuring safety standards are met, the operation of the plants should be outsourced to specialist companies.

"These problems can be addressed. For example, county councils could outsource the operation of drinking water facilities to specialised companies or responsibility for water services could be transferred to a single national authority."

The City and County Managers Association rejected claims there was no career path for specialists, adding that a "wide range" of approaches were used to manage water infrastructure. It added there was a need for continued investment to ensure standards were maintained.

Paul Melia
Irish Independent

www.buckplanning.ie

Reopening of Lissadell House for two months welcomed

TOURISM EXECUTIVES in the northwest yesterday welcomed the announcement that Lissadell House, the ancestral home of 1916 leader Countess Markievicz, is to reopen to the public on a temporary basis from tomorrow.

The historic Co Sligo house has been closed for six months because of a dispute over rights of way. A High Court hearing on the issue is due to open on October 20th and is expected to last up to two weeks.

Isobel Cassidy, manager of the estate, said yesterday that the long-term future of the house depended on the outcome of the hearing.

Pascal Mooney, chairman of North West Tourism, and the mayor of Sligo, Cllr Jim McGarry, were among those who yesterday welcomed the announcement that the house and gardens, which attracted 44,000 visitors last year, will be open to the public from July 17th to September 20th next.

The mayor recently said huge numbers of visitors were turning up to find closed signs on the locked gates at Lissadell.

The reopening comes just a week before the opening of the 50th Yeats International Summer School. Mr Mooney pointed out that Lissadell was an important landmark on the Yeats Trail, launched in Sligo earlier this year by Nobel laureate Seamus Heaney to mark the 70th anniversary of the poet’s death.

In a statement yesterday, owners Constance Cassidy and Edward Walsh said they had made the decision to reopen for “a limited period” after discussions with the mayor and local Fine Gael TD John Perry, who had expressed concern about the damage being done to tourism in Sligo and to local businesses as a result of the closure.

“Following discussions with Deputy Perry and Cllr McGarry, and having regard to our pre-existing contractual commitments for this year, we have agreed to open Lissadell to the public on a limited basis for a limited period,” they said.

It is understood that Lissadell is registered with the Revenue Commissioners as a heritage house. Under section 42 of the Finance Bill such properties can avail of tax relief for expenditure on repair and maintenance work but are required to open to the public for 60 days annually, including 40 days from May to September.

But Isabel Cassidy said yesterday that the decision to open had been prompted by the fact that a date had been set for the court hearing and also by the concerns of Mr Perry and the mayor about the impact of the closure to many businesses in Sligo.

She said the family was also anxious to “keep the place alive” in the event that it will be reopening on a permanent basis. “The future of Lissadell depends on the case,” she added.

Ms Cassidy said that since it closed to the public “the place is very sad” but she said that already following the announcement, there was a “great buzz around”.

Mr McGarry recently pointed out that the owners, who purchased the estate from the Gore Booth family, had invested €12 million in it and had employed 34 full-time and part-time staff.

The family said yesterday that a unanimous motion passed by Sligo County Council last December “in which they sought to declare all of the avenues within Lissadell to be subject to public rights of way” had rendered it incapable of being operated as a flagship tourism facility.

Sligo County Council said it would be making no comment on the decision to reopen given that the matter is sub judice.

Irish Times

www.buckplanning.ie

Slane HGV ban could mean problems for other road users, committee told

AN ORDER to ban HGVs going through an accident blackspot near the village of Slane will be difficult to implement, the Meath county manager has admitted.

Meath councillors voted earlier this year to ban HGVs going through Slane because of the dangerous and steep incline from the bridge on the N2 into the village. A total of 22 people have died on the stretch in the last 30 years.

County manager Tom Dowling told the Oireachtas Committee on Transport yesterday that a ban might lead to problems elsewhere, with HGVs using roads not built to carry them. He told committee members and local residents that a ban was “not a black and white issue”, and that the only real solution was a village bypass, which is currently in the planning stages.

He said the council was “deeply concerned” a HGV ban would create problems for residents elsewhere. “Yes, we can do it. Yes, the law allows us to do it, but we have just got to find a way,” he said.

Fine Gael TD Fergus O’Dowd suggested to Mr Dowling that he had to implement the ban. “You don’t have a choice,” he said.

Meath East TD Thomas Byrne (FF) suggested to Mr Dowling he could bring in the ban with a “stroke of your biro”, and that he, an elected representative, would not allow objections from other residents to a Slane HGV ban.

Fellow Meath East TD Shane McEntee (FG) said the stretch of road was the “worst accident blackspot in Europe”. He told officials from the National Roads Authority (NRA) and Mr Dowling they had a responsibility to provide a safe road.

NRA chief executive Fred Barry said it was working closely with Meath County Council on drawing up plans for a bypass, but such a bypass was proving to be challenging because of the special cultural heritage of the area.

Slane residents spokesman John Ryle said the response of the authorities had been very disappointing. “Either they know how serious the situation is and they really don’t care, in which case they are in gross neglect of their responsibilities, or they do not, in fact, understand the extreme urgency of the situation,” he said.

Irish Times

www.buckplanning.ie

Smyth lost out on big profit in Tallaght mall, court told

A COMPANY involving solicitor and developer Noel Smyth lost out on huge profits from the proposed redevelopment of The Square shopping centre in Tallaght due to the conduct of three other developers, the Commercial Court was told yesterday.

The 18-acre site at The Square alone was valued at some €375 million in April 2004 without any redevelopment having taken place and it was also estimated in 2004 there could be a €413 million net profit from redevelopment, Paul Sreenan SC, for Redfern Ltd, Mr Smyth’s company, said.

Mr Sreenan said documents indicated Bank of Scotland Ireland had in early 2006 believed the profits from the redevelopment would be some €316 million for Redfern and another €240 million for Aifca Ltd, a company formerly controlled by developers Larry O’Mahony and Thomas McFeely but now controlled by developer Liam Carroll.

Mr Smyth was an experienced developer and had adopted a more conservative approach to profitability, believing the bulk of profits would come from a planned phase four development, Mr Sreenan said.

As a result of the actions of Mr O’Mahony, Mr McFeely and Mr Carroll, Redfern’s interest was now “valueless” and it is entitled to aggravated and exemplary damages of more than €140 million from them as there was now no prospect of carrying out the development as originally planned, counsel said.

While Mr Smyth still hoped to go ahead with some development, the most he could hope for in the current economic climate was to break even, counsel added.

Redfern’s €140 million claim includes general damages of more than €130 million, including for €32.7 million for Redfern’s lost profit share; €21.2 million in lost project management fees and €42 million for loss of rental value.

It is also claiming special damages of more than €8.7 million allegedly incurred through wasted costs and time on progressing a planned joint venture with Mr O’Mahony and Mr McFeely.

Redfern claims that joint venture never proceeded because Mr O’Mahony and Mr McFeely instead did a deal behind Redfern’s back with Mr Carroll, owner of a rival development in Tallaght.

Mr Sreenan said it was clear from documents discovered for the legal action that, while Mr O’Mahony and Mr McFeely were in negotiations with Mr Smyth about a joint venture development of The Square, they were also in contact with Mr Carroll who was being kept informed of developments.

Counsel was continuing his opening of the action in which Redfern alleges Mr O’Mahony and Mr McFeely broke a deal with Redfern of August 4th, 2005 for redevelopment of The Square and “double dealt” with Mr Carroll.

The case before Mr Justice Brian McGovern is expected to last eight weeks. Redfern claims it was in a key position to develop The Square but needed control of the Lowe licence, required to secure access to large areas of the shopping centre.

Irish Times

www.buckplanning.ie

Developer claims secret Carroll deal sabotaged project

THREE PROMINENT developers – Larry O’Mahony, Thomas McFeely and Liam Carroll – are being sued for €140 million in damages at the Commercial Court over alleged involvement in secret deals related to a planned €300 million development at The Square centre in Tallaght.

“The story is not a pretty one,” Paul Sreenan SC, for Redfern Ltd, said when opening its action before Mr Justice Brian McGovern yesterday. Redfern is a company involving prominent solicitor and developer Noel Smyth, which alleges Mr O’Mahony and Mr McFeely broke a binding agreement with it for the proposed Tallaght development by, unknown to Redfern, entering a secret deal with Mr Carroll, who had a rival development in Tallaght.

Mr Sreenan said Mr O’Mahony and Mr McFeely had broken the deal with Redfern of August 4th, 2005, and “double dealt” with Mr Carroll. Counsel said Mr Carroll had, in one stroke, sabotaged the entire joint venture project. Mr Carroll’s insistence on his name being kept secret was almost pathological, counsel added.

There was now “nil prospect” of developing as planned given the financial difficulties of Mr O’Mahony and Mr McFeely and the economic climate, and his client was entitled to substantial damages, Mr Sreenan said.

Redfern, following agreements with Square Management Ltd, had been in a key position to develop The Square centre some years ago but the “missing piece of the jigsaw” related to securing ownership of what was known as the Lowe licence, required to secure access to large areas of the shopping centre, counsel said.

Mr Smyth had spent two years seeking to buy the Lowe licence from businessman Seán Davin, the original owner of Lowe Taverns Ltd, but believed Mr Davin was seeking too much: €36-40 million.

Counsel said Mr Smyth learned in March 2005 Mr McFeely and Mr O’Mahony had bought the Lowe licence from Mr Davin for €55 million, with finance from Bank of Scotland Ireland, and held that interest through a company, Aifca Ltd. After “torturous” negotiations brokered by former trade union leader Phil Flynn, who was acting for Mr O’Mahony and Mr McFeely, counsel said a binding agreement was signed with Redfern in August 2005, essentially involving the disposal of the Lowe interest to Alburn, a subsidiary of Redfern, and a joint venture development of the centre.

It is alleged that, while Mr Smyth was progressing the development, Mr O’Mahony and Mr McFeely brokered another deal behind his back with Mr Carroll, causing Aifca’s shares in Lowe to be transferred to Tafica Ltd, a company controlled by Mr Carroll.

“They kept this deal secret for quite some time,” counsel said, adding the details had emerged only after defences were filed in this case. It is claimed an implied term of the agreement meant none of the sides would do anything to hinder or prevent the due completion of the agreement, and therefore Mr O’Mahony and Mr McFeely were not entitled to dilute or assign their ownership or control of Aifca. Mr Carroll had also unlawfully interfered in another man’s contract, it is alleged.

The defendants deny the claims and in separate defences have alleged Redfern failed to complete the August 2005 agreement which caused serious financial difficulties for Mr O’Mahony and Mr McFeely, resulting in their reaching an agreement with Mr Carroll so as to refinance their borrowings. Mr Carroll and his companies also deny they have any liability under the August 2005 agreement, as they were not party to it.

The proceedings were initiated in July 2007 by Redfern, with registered offices in St Helier, Jersey, against Mr O’Mahony, Shrewsbury Road, Ballsbridge, Dublin; and Mr McFeely, Ailesbury Road, Dublin. Mr Carroll, of Sycamore Road, Mount Merrion, Co Dublin; Tafica Ltd, Chapel House, Parnell Street, Dublin; and Aifca Ltd, Upper Mount Street, Dublin, were later also joined as defendants.

Redfern claims Mr Carroll, Tafica and Aifca Ltd knew or must have known of the existence of the August 2005 agreement, and acted with the intention of interfering with due performance of that agreement and/or inducing Mr O’Mahony and Mr McFeely to breach it. Redfern claims it is the sole beneficial shareholder in Alburn, and, prior to the August 2005 agreement, Mr O’Mahony and Mr McFeely controlled Lowe Taverns (Tallaght) Ltd through their shareholding in Aifca Ltd. It claims the agreement provided for the sale of Lowe to Alburn in exchange for Redfern’s issue of shares in Alburn to Mr O’Mahony and Mr McFeely.

Redfern claims it, with the consent of the Mr O’Mahony and Mr McFeely, secured planning permission for development of phase III of The Square, valued at more than €300 million.

That proposed development, expected to be completed by August 2008, was for 1.3 million square feet of mixed-use development.

Irish Times

www.buckplanning.ie