News July August 2012

NATIONAL NEWS CSO July 2012/National Housing Construction Index August, 2012 The National Housing Construction Index indicates that over the period 2011 – 2102 there has been a sharp drop in planning applications nationally, with Kildare (-41%), Kerry (-39%), Clare (-35%) , Mayo and Louth (-31%) experiencing the most significant drops. Dublin and Sligo recorded the lowest drop (-2%). CSO statistics for July, 2012 reveal that one-off houses accounted for 64.1% of all new dwelling units granted planning permission in Quarter 1 2012. In this quarter there was a corresponding decrease of 58.9% and 84.5% in planning permissions granted for multi-unit housing and apartment developments respectively. The CSO data demonstrates that planning permissions for new dwellings in rural counties are significantly higher than those for new dwellings in urban areas. A Resource Opportunity: Waste Management Policy in Ireland July 2012 The Department has published the Government’s new waste management policy. The key elements of the new policy are as follows: (a) Waste Management Plans will remain a function of Local Authorities, with their evaluation to be completed by the end of 2012: these plans will remain in force until the start of 2014 when there will be three new waste management planning regions (reduced from the current ten regions); (b) There will be a strengthened and reformed household waste collection permitting system, and householders will be obliged to demonstrate that they are managing their waste (waivers/alternative support schemes are to be introduced for low income families). Penalties will be introduced; (c) The establishment of a team of Waste Enforcement Officers for cases relating to serious criminal activity will be prioritised, in consultation with An Garda Síochána; (d) The household waste collection market will be carried out in 2016 at the latest; (e) The Review of Producer Responsibility Initiatives is currently underway; (f) Prioritisation of waste prevention will continue, while reuse will be encouraged and promoted; (g) Draft Household Food Waste Regulations will be published in September, 2012 to require separate collection of such material: separate collection of organics will be required waste permit condition, to be introduced on a phased basis over a 4 year period; (h) Ireland requires an adequate network of quality waste treatment facilities – a review of recovery infrastructure will be completed by December, 2012; (i) The exemption from the landfill levy for shredder residue is being removed in order to support the achievement of end-of-life vehicles recycling and recovery targets; (j) The Policy supports a move away from landfill, which only has 12 years of capacity left, to its virtual elimination and replacement through prevention, reuse, recycling and recovery. This new policy, which does not address incineration, comes in the wake of a new report on how Member States manage their municipal waste commissioned by the EU (Waste Management Performance of EU Member States, August, 2012). This shows that Ireland’s performance is poor in areas such as decoupling of waste from consumption (“decoupling” is a requirement of member states to ensure that waste production is not linked to economic growth), access to waste collection services and the rate of waste going to landfills. Ireland ranks 15 out of 27 Member States, scoring 19 out of 42 points (by contrast Austria and the Netherlands scored 39 points). The Commission is using this report to prepare roadmaps for the ten worst performing Member States. The Roadmaps will help spread best practices and will contain tailor-made recommendations on how to improve waste management using economic, legal and administrative tools, and EU structural funds. The Commission is looking to use EU structural funds with a greater focus on the objectives of EU waste policy. The proposed Multiannual Financial Framework (MFF) 2014-2020 will ensure that EU funding is only invested in waste management projects if certain conditions are met beforehand, including the development of Waste Management Plans in accordance with the Waste Framework Directive and with the waste hierarchy, favouring prevention, reuse and recycling over incineration with energy recovery, with landfilling or incineration without energy recovery as a last resort. Section 261A of the Planning and Development Act, 2000 as amended: Supplementary Guidelines (Quarries) for Planning Authorities July, 2012 Further to the Guidelines on Quarries issued in January, 2012, the Department issued Supplementary Guidelines in July, 2012. The key amendments to the January, 2012 Guidelines include: • Where a quarry should have had an EIA and/or AA but did not, and was issued with a subsection 2(a) determination, the enforcement notice it to relate to the cessation of the unauthorised quarrying only (and not any permitted quarrying); • Until the S261A process has been fully played out, including the outcome of any applications to the Board for reviews, the Board will not consider any application from a quarry for leave to apply for substitute consent; • In determining whether or not an appropriate assessment was required, Regulation 27 of the European Communities (Natural Habitats) Regulations, 1997 stated that an environmental impact assessment in respect of a proposed development “shall be an appropriate assessment”. These Regulations remained in place until they were revoked on 21 September 2011, replaced by Part XAB of the Planning and Development Act, 2000. However, in the decision of the European Court of Justice in case C-418/04, given on 13 December 2007, a similar provision in Regulation 17 of the Habitats Regulations was not correct. Therefore a view could be taken that until 13 December 2007 at least, provided that an environmental impact assessment was carried out, appropriate assessment requirements could be deemed to be adequately addressed. However, where an adverse impact on the integrity of the site was identified and permission was subsequently granted, the requirements of the Habitats Regulations would not have been met, unless imperative reasons of overriding public interest were identified, there were no alternative solutions and there were compensatory measures taken to ensure that the overall coherence of Natura 2000 was protected; • Clarification that fulfilling the requirements in relation to registration means the same as having ‘registered’ and does not for example refer to compliance with conditions; • Clarifications on consultation with quarry operators/owners and communicating decisions As previously noted, most Planning Authorities have now completed their assessments of quarries, and have issued letters requiring an application for substitute consent, cessation of operations or no further action. Those in receipt of notices (either the quarry owner or a Third Party) have 21 days to seek a review by An Bord Pleanála, (by either the owner/operator or third parties). Applications for Substitute Consent are made directly to An Bord Pleanála within a period of 12 weeks from the date of notification from the Planning Authority unless an additional period of time is agreed with An Bord Pleanála. At this stage, An Bord Pleanála has received approximately 250 Notices from Planning Authorities. Decisions are being issued by the Board in the last week where no review of the Planning Authority decision is taken by the quarry operator/owner and/or any Third Party. An Bord Pleanála has also granted a number of extensions of time to make an application for leave to appeal for Substitute Consent. Draft Guidelines for Planning Authorities and An Bord Pleanála on carrying out Environmental Impact Assessment July, 2012 The Department has published draft guidelines for planning authorities on carrying out environmental impact assessment for consultation until Friday 14th September, 2012. The Guidelines follow the ECJ decision on Case C-50/09, with the effect being that the competent authority is responsible for carrying out an environmental impact assessment in relevant cases. The Guidelines require an Environmental Impact Assessment report to be included in the planner’s report which co-ordinates all internal reports on the relevant EIS section. The Manager or the decision-maker must carry out an assessment of the environmental impact of the proposed development, by way of a separate written statement on the planner’s Environmental Impact Assessment report, and set out whether he/she accepts the conclusions of the report in whole or in part or has not accepted the conclusions (reasons are to be provided for the latter). A separate assessment of an Appropriate Assessment is to be carried out. RECENT AN BORD PLEANÁLA DECISIONS/APPLICATIONS/APPEALS OF NOTE PL07 .239053: Western Power Developments Ltd has been refused permission for a 14-turbine wind farm, varying from 80-90 metres hub height with 50 metre blade tip, and capacity 42MW, (Retention of Met Mast) Control building, substation and ancillary works at Knockranny and Arderroo, Moycullen, Co. Galway. The proposed development site is located in an area designated – ‘Strategic Area’. It is not within an SAC, SPA or NHA in the Galway County Council Development Plan 2009-2015. It is within an area with a High Landscape Value Rating (see MAP HL3) and has a Landscape Sensitivity Rating of Class 3 – High (there are five classes ranging from 1-low to 5-unique). It is located within a protected focal point/view. In overturning the Inspector’s recommendation to grant permission, the Board refused permission for two reasons as follows: 1. The Galway County Development Plan 2009 – 2015 sets out policies in relation to the protection of archaeological heritage. Policy HL23 seeks to “support the preservation, conservation and maintenance of archaeological sites, together with the integrity of the setting of these monuments and sites. Development, which would destroy, alter or damage monuments or archaeological sites, or cause inappropriate change to their settings and character will be prohibited.” Policy HL25 seeks to “protect and preserve archaeological sites, which have been identified subsequent to the publication of the Record of Monuments and Places.” The archaeological surveys submitted on file identify an archaeological landscape of postmedieval settlements with intact associated field systems, and several prehistoric features newly-documented on the site, including fulachtaí fia, kilns and huts. It is considered that the number and layout of wind turbines, and the locations of the associated access roads, do not take account of the archaeological heritage of the site. The development, as proposed, would therefore be seriously detrimental to the archaeological and cultural heritage of the site. Furthermore, recorded national monument GA067-029 is located at the peak of Knockranny Hill, and the Board is not satisfied, on the basis of the submissions on file, that the turbine layout, which surrounds this hill, takes sufficient account of the visual impact on this monument or would not seriously injure the setting of the monument. The proposed development would therefore contravene the policies of the Development Plan and would be contrary to the proper planning and sustainable development of the area. 2. Notwithstanding the detailed geotechnical surveys undertaken, the Board is not satisfied that all geotechnical/peat slippage risks have been fully resolved for all turbine locations, and it is considered that the resultant risk of environmental damage is unacceptable, that the proposed development would therefore pose an unacceptable risk of environmental pollution, and would be contrary to the proper planning and sustainable development of the area. In deciding not to accept the Inspector’s recommendation to grant permission, the Board considered that the information on archaeology and geotechnics submitted to An Bord Pleanála at Further Information stage was significant, and having regard to all the submissions on archaeology, considered that the layout proposed would not be acceptable, and did not consider it appropriate to grant permission. Moreover, notwithstanding the detailed geotechnical survey work undertaken, some concerns remained with regard to turbine locations, and particularly those of turbines 8 and 13. In making its decision, the Board noted that having regard to the archaeological concerns, it did not think it was appropriate to address the geotechnical concerns by means of condition. Furthermore, it appeared to the Board that, in the response provided to the Board’s request for further information, the redesign of the turbine layout might have been unduly restricted by confining the relocation of turbines to within 20 m of the original turbine locations, and to within the original red line boundary. The original EIS for the proposed development stated that there are no Protected Structures or National Monuments within the site, and that archaeological monitoring during construction period. One of the observers submitted an Archaeological Report which referred to a circular feature at the summit of Knockranny, which requires further investigation, and that the archaeological potential is greater than the information supplied. The Inspector had concluded that there is a need for archaeological monitoring during construction period and this can be covered by way of condition. In the EIA, it had been determined that there would be a low risk of peat instability. The Inspector commented that while it is accepted that any intervention incorporates a degree of risk the proposed development represents a comprehensive attempt to deal with drainage issues and is considered to be technically acceptable subject to appropriate conditions/monitoring being put in place. PL35 .240508: In this case for permission for the change of use of premises at ground floor level from insurance offices to gaming and amusement arcade (Protected Structure), at No. 46 Leinster Street, Athy, Co. Kildare, the Board granted temporary permission. In deciding not to accept the Inspector’s recommendation to grant permission, the Board noted the policy of the planning authority to discourage gaming and amusement arcades in the core retail area but consider that temporary use of the building, for a period of three years would be acceptable in terms of maintaining the building, a Protected Structure. This is interesting in the context of the guidance on temporary planning permissions set out in the Department of Environment’s Development Management Guidelines, 2007. PL06D. RL2922: Dublin Bus sought a determination from the Board on whether the re-location of the N11 bus stop adjacent to St Laurence’s Park, Stillorgan, Co. Dublin, erection of bus shelter and re-siting of footpath and cycleway and removal of trees is or is not development or is or is not exempted development. The Board decided that the clearance/removal of part of an existing wooded embankment/buffer adjoining Saint Laurence’s Park, relocation of footpath and cycleway into the cleared area, relocation of a bus stop, as part of development of a bus lay-by at N11 bus stop adjacent to Saint Laurence’s Park, Stillorgan County Dublin is development and is exempted development it comes within the scope of Section 4 (1)(f) of the Planning and Development Act, 2000, and the erection of a bus shelter at this location is development and is not exempted development. Of interest is that the current/established use of the lands is amenity space / wooded buffer zone. The Inspector commented that the provision of footpath / cycleway / bus stop in this area constitutes change in the use of the land and that this change is ‘material’ having regard to the reduction in the width of the buffer zone, and nature of the new use. He concluded that while in Part 8 Section 80 the requirements in respect of development by, on behalf of or in partnership with local authorities is prescribed, this restriction does not specify that local authority must carry out the development in accordance with Section 178, 179 (and Part 8 of the Regulations prescribed for the purposes of Section 179 of the Act) in order to avail any exemption. As such, a determination of whether the planning authority has complied with the necessary ‘restrictions’ or ‘procedures’ outlined in these (such as consultation) is a ‘procedural’ matter and outside the scope of a referral to An Bord Pleanála under Section 5 of the Planning and Development Act, 2000. PL08 .RL2915: this referral sought a determination on whether the change of use of a commercial unit permitted as retail warehousing to convenience retail use at Mile High Retail Park, Manor East, Tralee, County Kerry is or is not development or is or is not exempted development. The Inspector concluded that it was not development on the basis that the previous grants of outline permission and approvals did not restrict the use of the permitted buildings to the sale of comparison or bulky goods. In disagreeing with the Inspector, the Board considered that the permitted use of the buildings had narrowed from the outline of permission to the use approved and the permission constructed complied with the development granted on approval. In referral case PL09 .RA2012 on whether an application for permission by Lidl Ireland GmbH at Maynooth Road, Celbridge, Co. Kildare (register reference 11/1010) is the same development or development of the same description as register reference 11/760 currently on appeal under PL09.239690, the Board determined this referral under Section 37(5)(c) of the Planning and Development Act 2000 and decided, unanimously, and against the Inspector’s recommendation that the application is not for the same development but is for development of the same description as an application for permission for development which is the subject of an appeal to the Board (Ref. PL09.239690). The referrer’s case was that the two descriptions of development are unequivocally different; and the two proposals relate to significantly different development. The only similarity between the two proposals is the allowance for deliveries on Sundays and Public Holidays however the latter planning application proposes deliveries in a significantly more constrained manner in terms of the specific limitation of the number of deliveries and the significantly reduced ‘window’ for deliveries to take place. The Board noted that the application seeks to address a part of Condition 14 attaching to PL09.237924 regarding restrictions to the hours during which the store can be serviced, a matter which is already under consideration by An Bord Pleanala as part of PL09.239690. Accordingly, to avoid the inappropriate circumstance of having simultaneous applications for the same operating retail business, regarding the same basic issue and with a possibility of different outcomes, the Board concluded that application 11/1010 is for development of the same description as an application for permission for development which is the subject of an appeal to the Board (Ref. PL09.239690). The Board granted permission for a proposed drive-thru restaurant and ancillary works at Douglas Court Shopping Centre, Douglas, Co. Cork PL04 .239825 against the Inspector’s recommendation to refuse permission on grounds that the proposed development is premature pending the LUTS because of the likely high vehicular traffic generating use proposed, and that the proposed development would adversely affect the use of the R610 and nearby N28 by the generation of additional traffic and movements on an already congested roundabout on the R610. In overturning the Inspector’s recommendation, the Board had regard to the overall scale of the proposed development and its proposed location within a large car park area and was of the view that the additional traffic movements generated by the proposed development would not be excessive and would not have a significant impact on the national road network. Lidl Regional Distribution Centre, Ballyhay, Charleville, Co. Cork A First Party Appeal (PL04 .240382 )against a general development contribution was lodged with the Board on the basis that it had not properly been applied, in that Cork County Council included the proposed ‘refuse collection area / compound’ in the reckonable floor area despite this floorspace having been deemed not ‘useable’, and that the proposed refuse compound is not fully enclosed. However, The Board (i) considered that the refuse collection area by reason of its enclosed form constitutes reckonable floor area for the purposes of the Cork County Council Development Contribution Scheme and (ii) calculated the amount to be levied based on the Development Contribution Scheme as updated by the planning authority on 22nd February, 2012. PL01 .JA0032 Powerstown Landfill. Carlow County Council sought approval for the continuation of existing landfill operations at Powerstown landfill, and for an increase in the annual waste acceptance from 40,000 to 50,000 tonnes per annum at the facility. The application, made under Section 175 of the Planning and Development Act, 2000, was submitted to the Board on 20th February 2012. Of interest is that the Inspector noted that existing landfill operations on the site were approved under ref. 01.EL2020, which expired on 21st January 2012, and concluded that the continued operation of the civic amenity site constituted unauthorised development, and recommended a condition be attached that an approval does not relate to the continued operation of the civic amenity site, due to its continued operation in contravention of condition no. 1 of approval Ref. PL01.EL202. The Board approved the continued operation of the landfill having regard to the national policy in relation to waste management, including policy documents “Waste Management: Taking Stock and Moving Forward” (April 2004) and “A Resource Opportunity: Waste Management Policy in Ireland” (July, 2012). The Board did not include the Inspector’s condition regarding the civic amenity site, as the on-going operation of these local recycling facilities was not a substantive issue in the determination of the Environmental Impact Assessment. PL03 .RL2942 Tulla Road, Ennis, Co. Clare. A referral by Eirgrid on whether the proposed replacement of existing busbar equipment (which involves replacing a set of four lattice steel gantries supporting the busbar with new smaller tubular gantries together with associated equipment of post insulators, circuit breakers and current transformer) within an existing 110kV electricity substation at Tulla Road, Ennis, Co. Clare is or is not exempted development, the Board concluded that, having regard to sections 2, 3, 4(1)(g) and 4(1)(h) of the Planning and Development Act, 2000, as amended, the proposed development consists of the carrying out by a statutory undertaker of works for the purpose of renewing and altering or removing apparatus and would, therefore, come within the exempted development provisions of section 4(1)(g) of the Planning and Development Act, 2000. Clare County Council had determined that there is no provision in section 4(1)(g and (h) of the 2000 Act which allows for the proposed development to be exempt as the development comprises of the replacement of an existing structure within the existing substation complex. The sections referred to above only allow for renewal, alteration and removal of a structure under section 4(1)(g) and maintenance, improvement or other alteration to a structure under 4(1)(h). These sections do not allow for replacement. PL28 .239971 Appeal by Loom Development Ltd against the supplementary contribution (condition no. 3) in the case of a change of use of retail space to office space at Lavitts Quay North, Pauls Lane and Half Moon Street, Cork City. The Board determined that the terms of the Cork City Council Supplementary Development Contribution Scheme 2009, and in particular the provisions of Table 4 of that document, the development qualifies for a 100% reduction in the contribution payable. It is, therefore, considered that the terms of the development contribution scheme were not properly applied and that condition number 3 should be removed. The Inspector noted that in considering the proposed development, the planning authority acknowledged the permitted and unoccupied nature of the existing retail space and provided a 100% exemption from the payment of General Development Contributions. This was based on an exemption provided for in Table 5 of the General Development Contribution Scheme relating to development “where a change of use is granted and the original permitted use was never executed”. This exemption does not differentiate between development which was previously subject to supplementary development contributions and those which were not so charged. The exemption refers only to a change of use where the original use was never carried out, which is the case in this appeal. While this may indicate a lacuna in the supplementary development contribution scheme, the terms of the scheme can only be applied as they have been drafted. PL63 .239853 Appeal against the retention by Sundays’ Well Properties Limited of (a) change of use from permitted commercial use to medical centre use at first and second floors of Block 2 and first floor (part of) and second floor of Block 1, (b) change of use and subdivision of permitted ground floor retail unit number 10 to accommodate (i) reduced permitted retail floor space (pharmacy), (ii) café area and (iii) new lift shaft lobby area to medical centre and (c) new set-down area adjacent to Block 2, all at Blocks 1 and 2, Reeks Gateway, Ardnamweely, Killarney, Co. Kerry The Board granted permission for change of use from permitted commercial use to medical centre use on first floor only, change of use and subdivision of ground floor unit number 10 for pharmacy/café/medical centre, new set down area adjacent to block 2, but refused permission for change of use from permitted commercial use to medical use on second floor, as it would have a negative impact on the vitality and viability of the existing town centre. In deciding not to accept the Inspector’s recommendation to grant permission for the entire development, the Board had regard to the importance of protecting the economic viability of the existing town centre of Killarney. Dunkettle Interchange Improvement Motorway Scheme 2012. The National Roads Authority has lodged its application and Motorway Order for the Dunkettle Interchange Improvement Motorway Scheme 2012 and EIS (PL04 .MA0011 and HA0039 respectively). A decision is due on 28th January, 2013. Particulars can be viewed at the offices of Cork County Council, Cork City Council, or on the project website www.n8n25dunkettle.jacobs.com. The proposed development comprises the reconfiguration of the existing Dunkettle Interchange to a free flowing interchange in so far as practicable, i.e. an interchange whereby traffic movements aren’t conflicted by opposing traffic movements either by yielding or stopping at traffic signals, as is the case with the existing interchange. The proposed development includes the following elements of infrastructure: • A series of direct road links between the N8, the N25 and the N40 and links to the R623 Regional Road in Little Island and Burys Bridge in Dunkettle; • 1 grade separated junction arrangement at the existing N25 to the east of the existing Dunkettle Interchange; • 4 roundabouts – 2 at the grade separated junction and 2 at tie ins with the existing road network; • 43 major structures of various forms; • Several culverts where the scheme crosses watercourses or intertidal areas; and • Pedestrian and cyclist facilities. The proposed development also has consideration for an access to a potential Park and Ride site for Irish Rail. Traffic Analysis has demonstrated that the proposed development significantly reduces congestion thereby reducing journey times through the interchange. The proposed scheme is the Red Option presented by the NRA in previous consultation phases. The closing date for submissions is 5.30pm Friday 14th September, 2012. Submissions require payment of a €50 fee to An Bord Pleanála. APPLICATIONS FOR EXTENSION OF DURATION UNDER SECTION 42(1)(A)(II) OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED Following on from recent updates, we present below a number of recent decisions by Cork County Council on applications for extension of duration which are worthy of note: (a) 12/05015 Construction of 145no. dwelling houses, 32 no. garages/carports, crèche and associated site works and services, extension of duration to permission granted under An Bord Pleanála ref. no. PL. 04 221079 (planning reg. no. 06/6928) by Blackline Properties at Coolmore Gardens Upper Shanbally Carrigaline Co. Cork. The Planning Authority considered that this planning proposal for 131 units would be inconsistent with the Guidelines on Sustainable Residential Development in Urban Areas issued under S28, in particular because of the scale, pattern, density and poor connectivity to the village centre. Having regard to: – the scale of the existing settlement of Ringaskiddy, – the scale and siting of the development proposed within this application (131 no. dwellinghouses), – the requirements set out under Section 42 of the Planning and Development Act 2010. – Objective HOU 7-1 of the Cork County Development Plan 2009, – the provisions of the Guidelines for Planning Authorities on Sustainable Development in Urban Areas issued by the Minister in May 2009 under Section 28 of the Planning & Development Act. It is considered that the scale, pattern and density of development, together with the distance from and poor connectivity to the village centre would render the development inconsistent with the proper planning and sustainable development of the area having regard to the Guidelines on Sustianable Residential Development in Urban Areas issued under Section 28 of the Planning & Development Act. Furthermore, the development would be inconsistent with Objective HOU 7-1 of the Cork County Development Plan 2009. The proposal does not satisfy criteria (II) and (III) of S42(1)(a)(ii) of the Planning and Development Act 2010 and the Planning Authority is not therefore satisfied that it is appropriate to grant the extension of duration of the permission. In arriving at this decision, the planner comments that in the text of the Carrigaline LAP 2011 it is stated that (4.4.2) “In the absence of a 2020 target population it is envisaged that Ringaskiddy’s population will remain relatively static. There is potential for limited residential development within the town centre areas of Ringaskiddy and Shanbally villages. The land which was zoned for residential development in previous plans has now been included within the overall town centre zonings of Ringaskiddy and Shanbally villages. This plan proposes an additional 90 units be provided in Ringaskiddy (including Shanbally village) over the lifetime of the plan, representing an increase of 20% over the existing supply”…. Additionally, it is also stated in the text of the Carrigaline LAP that “it is considered that there is sufficient capacity on the town centre land supply for the housing needs of the settlement”. It is also noted that the Carrigaline Electoral Area Local Area Plan 2011 includes an objective relating to the completion of existing development, i.e. CED 1-1 which states that “Notwithstanding any other objectives in this plan, in the interests of the proper planning and sustainable development of the area, it is an objective of this plan to secure the satisfactory completion of any development for which planning permission was granted prior to the making of this plan where works were carried out pursuant to the permission prior to the making of this plan”. While the Planning and Development Act 2000 (as amended) does not include Local Area Plans in the range of documents that can be considered in the determination of extension of duration applications, as an aside, it is noted that the Carrigaline Local Area Plan (LAP) 2011 envisages that Ringaskiddy’s population will remain relatively static. It is also identified that there is potential for limited residential development within the town centre zonings of Ringaskiddy and Shanbally villages and that the 90 no. additional units that are to be provided in Ringaskiddy and Shanbally villages would be provided in the existing town centre areas, as there is sufficient capacity on the town centre land supply to provide for the housing needs of the settlement to 2020 (noted that within Ringaskiddy town centre there are valid permissions for 41 no. dwellings as permitted under 06/13454 / PL.226044 due to expire in May 2013 and 45 no. units permitted under 07/7002due to expire in March 2013). The LAP also identifies that the scale and form of development will be very much dependent on retaining the character of the villages and no one proposal for residential development should be larger than 30 units. Additionally, while provision is made in the Carrigaline LAP for the completion of existing development, this applies to development for which permission was granted prior to the making of the 2011 LAP, where works were carried out pursuant to the permission prior to making of the LAP. (b) 12/295 Structures for horticultural use to include nursery building, storage shed, composting areas, underground water tanks, polytunnels, planting strips, attenuation pond, entrance, parking spaces, treatment plant and all associated site works by Bridie and Val Farrell at Tullig, Leap, Co Cork. The applicant submitted a letter outlining details of works carried out on site to date to include walls at entrance, filling of site with 3000 cubic metres and other site development works. A breakdown of the costs have also been submitted which accounts for over 40% of total expenditure. No ‘development’ works of this nature were observed. Given that no substantial development works have commenced on site to date, the applicant should be given the opportunity to answer question no. 9 of the application form as the Planning Authority must be satisfied that there were considerations of a commercial, economic or technical nature beyond the control of the applicant which substantially militated against either the commencement of development or the carrying out of substantial works pursuant to the planning permission to warrant an extension of duration to this permission. The SEP report of 19th July, 2012 states that the application was deferred for further information on 20th June, 2012, but that the applicants have not responded to the request for further information. Article 45 (3) of the Planning and Development Regulations 2001, as amended, states: Where an applicant does not comply with any requirement under this article within 4 weeks of such requirement, the planning authority shall refuse the application. The above current regulations do not allow for any discretion on the part of the Planning Authority to assess the application further. Having regard to the above current regulations and as no response has been received by the Planning Authority within 4 weeks of the request for further information, the application to extend the appropriate period of 07/900 should be refused. (c) 12/04068 Completion of residential development of 42 no. apartments in five storey block with basement car parking, landscaped amenity area to include a neighbourhood play area with riverside walk, entrance and associated site works and services as permitted under Planning Reg. 07/4648 at Commissioners Quay Castleredmond Midleton by Rossdale Enterprises Ltd refused on 27th July, 2012 for the following reason: It is considered that the application to extend the duration of planning permission 07/4648 does not comply with the requirments of :- (i) Subsection 42 (1)(a)(ii) (11) of the Act in as much as the subject site is located in an area deemed to be susceptible to coastal flooding and there are significant changes to the development objectives contained in the current Co. Development Plan and the Midleton Local Area Plan in relation to flood risk management such that the development as originally proposed is no longer consistent with the promotion of the proper planning and sustainable development of the area. (ii) Subsection 42 (1)(a)(ii) (III) of the Act in that the current application is inconsistent with the proper planning and sustainable development of the area having regard to the requirements specified in the Planning System and Flood Risk Management: Guidelines for Planning Authorities (Nov 2009) together with its technical appendices as issued by the Minister under Section 28 of the Planning and Development Act in that the site is located in an area identified as being prone to flooding and the planning application 07/4648 was not accompanied by a Flood Risk Assessment (iii) Subsection 42 (1)(a)(ii) (1V) of the Act in that an appropriate assessment, which is considered necessary was not carried out prior to planning application 07/ 6468 being granted. Accordingly, it is considered that the application does not meet the criteria of all relevant subsections of Section 42 (1) of the Act as amended under Section 28 of the Planning and Development Act 2010, as is required. The Senior Executive Planner in his report dated 7th March, 2012 noted that: In the 2011 Midleton Electoral Local Area Plan for Midleton Town the subject site is zoned a “existing built up area”. On this basis and on that basis that there are similar types of high rise apartments development in the immediate area of the subject site, I consider it reasonable for the Planning Authority to form the view that the use of the subject site for apartment type development is consistent with the zoning policies for the site as contained in the current plan. However the site is also located in Flood Zone A. Therefore the provisions of the Flood Management Guidelines take precedence over the zoning objective. (d) 12/05222 Change of use of Screen 2 from cinema to retail use with separate entrance and alterations to elevations of Cosey Cinema premises, extension of duration of permission granted under Planning Reg. No. 07/12857 refused to Kanturk Ironworks Ltd on 25th July, 2012 as the site of the development is within an area identified as being liable to flood. Consequently, a Flood Risk Assessment is required in accordance with the procedures set out in ‘The Planning System and Flood Risk Management Guidelines for Planning Authorities’ (2009), to which the Planning Authority must have regard. The Planning Authority, in dealing with applications under section 42, cannot revisit planning issues, including matters relating to flooding. The Planning Authority is, therefore, precluded from granting an extension of the appropriate period having regard to the provisions of section 42 (1)(a)(ii)(III) of the Planning and Development (Amendment) Act, 2010. The site is located on lands zoned for Town Centre uses and is within an Architectural Conservation Area. The Kanturk Electoral Area Local Area Plan, 2011, also identifies the site as being an area susceptible to flooding (Zone B). OTHER Proposed Material Alterations to proposed Variation No. 8 of the Kerry County Development Plan 2009-2015 (Renewable Energy Strategy) Kerry County Council has issued the Proposed Material Alterations to the County’s Renewable Energy Strategy. Some of the key changes include: • the Strategic Site Search Area in the vicinity of the Munster Blackwater be re-designated as “Open to Consideration”; • the “Unsuitable for Wind Development” area in the townlands of Cappalivane, Curraglass South and Redtrench North be re-designated as “Open to Consideration”; • the “Unsuitable for Wind Development” area in the townland of Derrincullig be re-designated as “Open to Consideration”; • the “Unsuitable for Wind Development” area to the northeast of Ballyheigue be re-designated as “Open to Consideration”; • the “Open to Consideration” area in the Inny Valley be redesignated as “Unsuitable for Wind Development”; • At a minimum, turbines shall be set-back a distance equalling the blade tip height of the turbine from national roads and railways. Setback from other roads will be site specific and determined at application stage; • Only renewable energy proposals within, upstream or adjacent to Natura 2000 sites that have undergone a Habitats Directive Assessment which concludes no likely significant affects on the integrity of Natura 2000 sites will be permitted; • Any proposed development of on-shore wind adjacent to Natura 2000 sites will have to ensure a suitable buffer zone exists between the development and the Natura 2000 boundary; • Applications for wind development shall be accompanied by a technical assessment in relation to the slope stability, landslide susceptibility of the development site and the proposed project. This assessment shall incorporate slope stability mapping and groundcover assessment in the context of potential cumulative effects arising from multiple developments and consider potential impacts on slope stability in relation to climate change impacts, particularly flash floods and changing weather conditions. The Proposed Material Alterations to the County’s Renewable Energy Strategy are on public display from Wednesday 29th August, 2012 to 4pm on Thursday 27th September 2012 (both dates inclusive). A referral (reference PL03 .RP2081) has been issued to An Bord Pleanála by Banner Energy Ltd on a point of detail which is in dispute (S34(5)) on whether 2no. 2.3MW Enercon E70 turbines might be use in place of General Electric GE1.5x a Carrownaweelaun, Carrigaholt, Co. Clare. An Bord Pleanala is to hold an oral hearing on the Clashavoon to Dunmanway 110kv overhead line (PL.04 VA0010) at the Castle Hotel, Main Street, Macroom, Co. Cork commencing 10th September, 2012. An application by Calboura Ltd (11/6168) for the construction of one wind turbine generator (with a maximum hub height of up to 76 metres, a maximum rotor diameter of up to 56 metres, and a maximum blade tip height of up to 100 metres) associated crane hardstanding area, electrical substation, access tracks and ancillary facilities including underground cabling at Moneygorm, Glenville, Co. Cork, which was subject to Further Information and a 3 month extension, refused permission on the basis that there was insufficient information to make a decision on the potential for the proposed development to have effects on the Hen Harrier population, which had been recorded to be breeding close to the site in recent years. The Heritage Officer, in response to the Request for Further Information, advised that a minimum of a 12 month survey should have been completed in advance of submission of the planning application to establish the use of the site and to thereby assess the potential impacts of the proposed development on this species as set out in the ‘Survey methods for use in assessing the impacts of onshore windfarms on birds communities (revised December 2010)’ for which the recommended minimum is that 36hours of watched should be conducted at each Vantage Point (VP) for each season (breeding, non-breeding, migratory) when the species is present. The National Park Wildlife Service (NPWS) did not comment on the file but the Heritage Officer had consulted with them. Bank Casino Card Club, Clarke’s Bridge House 4/5 Wandesford Street, Cork City An application to retain the change of use of part of the first floor from office to private members’ club was refused by Cork City Council on 1st August, 2012 by reason of the materially different use, outside the range of uses generally associated with office uses; the material impacts on residential and other amenities; and the potential for property devaluation. Temporary permission was previously granted for three years for a change of use to gaming and leisure on the ground floor (but not implemented). An influencing factor in the decision was the provisions of section 7.5 of the Department of Environment’s Development Management Guidelines, 2007, particularly to the granting of a second temporary permission. The development is also subject to a referral to An Bord Pleanála to determine if the change of use from permitted office space to a private members club is or is not development or is or is not exempted development (PL28 .RL3010 due 11th October, 2012). Douglas Land Use and Transportation Study (LUTs) Cork County Council in conjunction with MVA Consultancy has completed the 2nd round of consultation on the Douglas LUTs. Preferred options for the future sustainable development of Douglas are to be progressed in September, 2012, with a further consultation period in October, 2012. The final LUTs is to be completed by December, 2012. Cork Metropolitan Joint Retail Study GVA Planning has been appointed to prepare the Cork Metropolitan Joint Retail Study on behalf of Cork City and County Councils. Carrigaline Western Relief Road, Co. Cork Cork County Council proposes a Part 8 development comprising three access points along the proposed Carrigaline Western Relief Road to allow access to adjoining zoned lands if and when the lands are developed. Plans and particulars can be inspected at the offices of Cork County Council from 17th August, 2012 to 28th September, 2012, with submissions to the Senior Engineer, Road Design Office, Cork County Council, Innishmore, Ballincollig, Co. Cork on or before 3pm on 3rd October, 2012. Draft Direction relating to South Clare Local Area Plan 2012-2018. On 6th July, 2012, the Minister issued a notice of intent to issue a direction to Clare County Council relating to the South Clare Local Area Plan 2012 – 2018. The Minister had formed the provisional opinion that, in making the South Clare Local Area Plan 2012 – 2018: 1. The planning authority has ignored or not taken account of a submission made on the Minister’s behalf in April 2012 in respect of the then draft local area plan 2. The plan is not in compliance with the requirements of sections 19, 20 and 177V of the Planning and Development Act 2000 (as amended). The statement of reasons given for the draft direction is as follows: 1. A written submission on the proposed material alterations to the Draft Local Area Plan was made to Clare County Council on behalf of the Minister for the Environment, Community and Local Government in April 2012. This written submission drew attention inter alia to the fact that the planning authority’s own habitats directive screening report indicated that the proposed zoning objective for the Lands will have a negative impact on Natura 2000 sites. The written submission on behalf of the minister recommended that the zoning objective revert to that of the draft local area plan. The planning authority has ignored, or has not taken sufficient account of the said written submission, in that the planning authority proceeded to adopt the impugned zoning objective. In so doing, the elected members relied on an improper consideration, namely a report by Conor Kelleher dated June 2012, which was not subject to the public consultation procedure prescribed under s.20 of the Planning and Development Act 2000 (as amended), in preference to the written submissions on behalf of the minister. 2. The zoning objective ‘R5’ (Quin) set out in the local area plan is inconsistent with the provisions of the Clare County Development Plan. The core strategy of the Clare County Development Plan 2011 – 2017 sets out, inter alia, that objective CDP17.18 requires, where appropriate, that all plans and projects comply with the requirements of the habitats directive. The zoning objective is therefore not compliant with s.19 of the Planning and Development Act 2000 (as amended). 3. The local area plan includes a zoning objective for the lands which would allow for a use, namely residential, which would adversely affect the integrity of a European site. This does not comply with the provisions of s.177V of the Planning and Development Act 2000 (as amended) and is in breach of the requirements of Article 6 of the EU Habitats Directive. 4. The effect of the zoning objective is to defer the carrying out of an appropriate assessment in respect of the lands until the stage of an application for planning permission. This is not compliant with the requirements of Part XAB of the Planning and Development Act 2000 (as amended) and not compliant with Article 6 of the EU Habitats Directive as interpreted in Case C-418/04 Commission v. Ireland. 5. In the alternative, the local area plan includes a zoning objective for the lands which would allow for a use, namely residential use, in circumstances where it is not certain (‘no reasonable scientific doubt’) that such a use will not adversely affect the integrity of the European site. This does not comply with the provisions of s.177V of the Planning and Development Act 2000 (as amended) and is in breach of the requirements of Article 6 of the EU Habitats Directive. 6. The local area plan does not set out any reasons for the zoning objective of the lands. This does not comply with the provisions of s.20 of the Planning and Development Act 2000 (as amended), or with the provisions of s.177V of the Planning and Development Act 2000 (as amended). 7. The decision to zone the lands for residential use was informed by an improper consideration, namely a report by Conor Kelleher dated June 2012, which was not subject to the public consultation procedure prescribed under s.20 of the Planning and Development Act 2000 (as amended). 8. The decision to zone the lands for residential use was made in breach of the requirement of s.20 and s.177V of the Planning and Development Act 2000 (as amended). In particular, the decision was made in the absence of a determination that the local area plan shall not adversely affect the integrity of a European site. The habitats directive assessment carried out on behalf of the planning authority indicated that the lands should not be subject to a zoning objective for residential use. The draft direction was open to consultation until Thursday 2nd August 2012. All submissions received will be taken into consideration by the Minister before directing the planning authority pursuant to Section 31 of the Planning and Development Act 2000 (as amended by section 21 of the Planning and Development (Amendment) Act 2010). Judicial Review – Sean Dunne & Anor. v An Bord Pleanala & Anor. High Court, unreported, Hedigan J., 30th March 2012; [2012] IEHC 146 The applicants, owners of the Whitewater Shopping Centre, Newbridge, Co. Kildare sought leave to quash the Board’s determination on referral PL09 .RP2017 made to the Board on 7th February, 2008 in relation to the amounts of the levies applicable in respect of conditions 14 and 15 of 02/1514 (parent permission) and 27 and 28 of 03/1981 (amendment permission). The applicants were refused leave on all grounds. The case was premised on the argument that a substantial amount of works, the funding of which was to have been contributed to by the applicants on foot of the subject permission and conditions thereto, had been carried out by the applicants on behalf of Kildare County Council. The Board determined that: (a) the amount of the contribution in relation to condition number 14 be €100,000 and (b) the amount of the contribution in relation to condition number 15 be €16,091,700. The Court considered that the decision of the board was not res judicata, and the parties remained free to resolve by agreement, arbitration or litigation the quantum meruit to which the applicants referred. Thus there was no substantial interest in play for the applicant, no order of the Court could benefit them and thus they had no locus standi. In relation to the basis for the referral, the Court considered the authorities governing the jurisdiction to leave matters over for agreement, including Boland v An Bard Pleanála [1996] 3 IR 435 and O’Connor v Dublin Corporation (No.2) 2000 IECJ 68 and found the following principles emerged: (i) In a referral, the Board is confined by the planning permission. (ii) The permission should provide sufficient detail to guide the Board in determining the matter left for agreement. (iii) Where it is unclear the Board must interpret its terms as best it can. (iv) The Board acting thus is exercising its decision making powers as an expert body. (v) Where a number of possible alternatives exist it is for the Board to decide which one it will choose. The Court held that the role of the Court in Judicial Review of decisions of expert bodies is well established and the Court cited its own decision in the case of Frank Harrington Ltd. V An Board Pleanála [2010] IEHC 428 and applying the principles therein, found that when the Board used the traffic generation methodology in order to assess the contribution to be made by the applicants, it was acting well within the bounds of reasonableness. Department of the Environment Circular Letter: PHFPD 05/12 dated 27th July, 2012 in relation to data protection • Planning Application Forms: This Circular states that at the next opportunity, articles 27 and 31 of the Planning and Development Regulations 2001 as amended will be further amended to require the banner headings on the weekly lists to state that: “The use of the personal details of planning applicants, including for marketing purposes, may be unlawful under the Data Protection Acts 1988-2003 and may result in action by the Data Protection Commissioner against the sender, including prosecution”. In advance of the change in the Regulations, Planning Authorities are asked to start using the new wording on their weekly planning lists as soon as possible. All weekly lists issued by the Planning Authority, whether in hard or electronic copy, should be amended immediately to substitute the new wording for the current wording. Planning Authorities are also asked to replace the caution on the front of the planning application form under the heading “Data Protection” with the above wording. • Publication of data in relation to planning enforcement: The Department’s policy is that maximum transparency should prevail in relation to planning enforcement so that in a situation where one case is pursued while another case is not it will be clear from the files why the relevant decisions were made. It is accepted however that there may be exceptional cases) where it may not be appropriate to put all documentation into the public domain. • Section 5 declarations: In relation to Section 5 declarations, Section 7(2)(h) of the Act requires the planning authority to enter into the planning register “particulars of any declaration made by a planning authority under section 5”. However, section 7(2)(h) does not elaborate on which particulars should be published. The Department’s circular states that this is a matter that will be considered when the Act is next being amended (it is intended to review section 5 fully at that time). Pending such a full review, the Department advises Planning Authorities not to publish in the planning register the address of a person who requested a section 5 declaration in a case where this is not the address of the development in respect of which the declaration is requested, or any other contact details.