Frank Connolly
A former Fianna Fáil Minister for the Environment, Dick Roche, has accused Wicklow County Council and two other state agencies of outrageous treatment of a family which has tried to build a data centre on lands near Newtownmountkennedy in recent years.
In the latest zoning and planning controversy to erupt in Wicklow, Roche has sharply criticised Wicklow County Council, the National Roads Authority( NRA) and An Bord Pleanála (ABP) over their treatment of Brian McDonagh and his brothers who obtained planning permission to build a data centre at Kilpedder, Newtown, in July 2010 but have been confronted by a series of obstacles that have prevented the proposed development.
Roche’s criticisms echo concerns of other local councillors, and recent statements in the Dáil by Sinn Féin leader, Gerry Adams who has questioned the role of former environment minister, Phil Hogan, in a number of controversies in Wicklow which, he argued, made him unsuited to be Ireland’s nominee for the European Commissionership.
Village has learned that the McDonagh case and other controversial issues relating to Wicklow County Council and some of its staff and elected members have been brought to the attention of the newly appointed environment minister, Alan Kelly, who is considering whether an inquiry into planning and re-zoning, as well as the multi-million dispute surrounding illegal waste disposal, in the county, should be added to the ‘review’ underway into seven counties (including Donegal). And Junior Finance Minister Simon Harris has called for an investigation into Wicklow County Council.
According to a comprehensive letter of complaint by Dick Roche to the then secretary general of the Department of the Environment, Geraldine Tallon, in July 2011, the treatment of the McDonaghs revealed “serious maladministration” on the part of Wicklow County Council and the NRA as well as a bizarre decision by ABP which the former minister asserts was “quite hard to fathom” and which was subsequently overturned by the Supreme Court.
According to Roche, the McDonagh brothers purchased the 81 acre site at Kilpedder on the edge of the M11 in 2007 and lodged a planning application in January 2008 for a business park on the lands which were then zoned for business, science and technology.
As their planning application was under consideration by Wicklow County Council, the McDonaghs learned that lands on the other side of the M11 from their site at Newtown were to be re-zoned for employment in a new Local Area Plan (LAP). During discussions with Council staff they also discovered that the zoning on their lands might be downgraded to agricultural use only in the draft proposals for the new LAP, rendering it commercially useless to them.
During this period, Brian McDonagh and his brothers were invited to a meeting with a land agent who was acting for a prominent Dublin-based property developer and his partners, where they were offered a 50-acre parcel of land “at a knock down price of €40 million” on the opposite side of the M11 to their site. They were told that the land on offer, which was zoned for agriculture, was going to be re-zoned for industrial use in the new LAP. They were then shocked when the agent showed them a map of the new draft plan which indicated that the land which they owned was going to be de-zoned to agricultural use. Ironically, the agent making the offer was not aware that the McDonaghs owned the lands which he said were to be de-zoned.
A draft contract sent to the McDonaghs also indicated that a nine-acre portion of the lands they were being offered by this private developer was owned by Wicklow County Council. When the McDonaghs asked the land agent acting for the prominent property developer what guarantee he could give that the land on offer would be re-zoned, the agent offered to set up a meeting with senior Council staff where the position would be clarified.
At a hastily arranged meeting the following morning in the Druids Glen hotel in Wicklow, Tony O’Neill, Economic Development Manager of the Council, arrived with a copy of the LAP containing the County Manager’s recommendations for re-zoning. The document showed clearly that the lands on offer were to be re-zoned for employment and that the McDonagh lands were to be de-zoned. O’Neill allegedly assured the McDonaghs that it was 99.5% certain that the lands would be re-zoned by the elected members of Wicklow County Council (although they had yet to see the plans) and that the offer “represented a great investment opportunity” for them.
On allegedly receiving this information, which fundamentally threatened their plans for a new business park, they immediately contacted their solicitors, Whitney Moore, who in turn wrote to the Council demanding that it “stay any further consideration of the 2008 draft LAP” until the proposed de-zoning of their lands was removed, or face injunctive legal action.
After Council management initially denied that any such meeting had taken place at Druid’s Glen a member of the council who was present in the hotel and who had spoken to Brian McDonagh and O’Neill verified that the meeting had occurred. Two weeks later, the Council voted in favour of the Manager’s recommendations with the result that the McDonagh’s lands were indeed de-zoned. Following contact made by the chairman of the planning committee, Councillor Pat Vance (FF), the McDonaghs were invited to attend yet another meeting at the Ramada Hotel in Wicklow where they were asked to put forward fresh proposals for development on the lands they owned. It was at this meeting that they were informed that a proposal for a data centre on the land would be favourably considered by the council as it would not compete with plans for the land on the other side of the M11 which had just been re-zoned.
Rather than lose the prospect of any development the McDonaghs withdrew their planning application for the business park and made a fresh one for a data centre on their lands which was, as promised, quickly processed and granted permission by the Council in July 2010. Ecologic Data Centres Ltd (EDC), the company formed by the McDonaghs which made the successful application, was immediately confronted by more obstacles, this time from the NRA which appealed the planning permission to An Bord Pleanála.
The objection was lodged despite discussions between the McDonaghs and the NRA before the planning application was submitted. The McDonaghs were perplexed at issues raised at their meetings with NRA executives as they were aware that the agency had not objected to proposed developments on the same lands with far greater traffic implications for the area than the data centre would pose.
They were informed by a senior NRA executive that they had unfortunately being caught in ‘cross-fire’ between the NRA and the County Council. It was eventually agreed between both agencies that the McDonaghs would finance a survey to assess the impact of the data centre development on traffic flows at the Ballyroan junction on the M11.
When the report was produced by Moylan Consulting Engineers another controversy erupted when the Council refused to present the report to the NRA while the NRA refused to request it from the Council. When the McDonaghs tried to present the report to the CEO of the NRA at its headquarters they were asked to leave under threat of arrest.
By this time they had made contact with various local and national representatives including Roche who was by then the Minister for European Affairs in the dying months of the Fianna Fáil-Green Party coalition.
Roche raised the issue with the Council which agreed to provide any undertaking required to allay the NRA’s concerns regarding safety issues at the Ballyroan junction and thus allow the road agency to withdraw its objection to ABP. When he called the NRA executive with whom he had been dealing to inquire as to whether its objection had been withdrawn in February 2011, McDonagh was put on to a different official, Sean O’Neill, with whom he had had no previous contact.
O’Neill appeared familiar with the plans of EDC for a data centre and raised the prospect of transferring its location to a completely different site close to Shannon airport in the south-west of Ireland. O’Neill gave Brian McDonagh the name and contact details for a man whom he described as a friend of his, who could identify a suitable, alternative site at Shannon. Shortly afterwards, McDonagh was contacted by the man in Shannon who, over a succession of calls, put forward the benefits of EDC re-locating to the Shannon region. According to Sean O’Neill, his referral to the executive at Shannon was innocent and arose after he had a discussion with Brian McDonagh over the potential loss of jobs if the data centre scheme did not go ahead in Wicklow due to planning difficulties.
“I was told that if did not happen all of these jobs could be lost and I discussed the possibility of other places it could happen so that these jobs could be saved”, O’Neill told Village.
This particular episode which Roche described in his letter as “odd if not downright improper” did not lead to anything as the NRA sent a letter to ABP on 18th February indicating that the agency had reached agreement with Wicklow County Council on the traffic issues and was withdrawing its objection.
“Whatever the issues between these two state agencies may have been it seems utterly disgraceful to me that a third party should have been dragged into that dispute, particularly when the row between the state agencies stands to cause a third party to lose millions”, Roche wrote in his letter to Tallon in July 2011. By then, the McDonaghs were exposed to a loss approaching €30m on the chronically delayed project.
Following discussion with the McDonaghs, the only other objector, adjoining land owner, Marc Michel, withdrew his appeal of the data centre plans as the date for a decision by ABP approached in the Spring of 2011. As there were no appeals remaining ABP could now allow the development to proceed, but life for the McDonaghs was never going to be that simple.
Instead the planning consultants GVA acting for the McDonaghs were informed that ABP would make a decision on the matter on 24th March and the board’s own files, signed by one of its members, Conall Boland, indicated that while it had been discussed by board members on 14th March a decision had been deferred to a further board meeting. On 16th March the board was informed by Frank O’Gallachóir, the planning agent for the McDonaghs, that all objections had been withdrawn.
In response ABP wrote to O’Gallachóir two days later stating that his letter “had not been received in sufficient time for the Board to effect the withdrawal as a decision had already been taken in the case”. This was despite the note by Boland on ABP files that consideration of the appeal had been deferred on 14th March. Subsequently, on 21st March, ABP refused permission for the data centre overturning the grant of permission by Wicklow County Council.
The ABP decision was successfully appealed by the McDonaghs to the High Court which questioned the manner in which ABP dealt with the appeal and ruled that the board had not acted fairly or properly. Compounding the McDonaghs’ misery ABP appealed the High Court ruling to the Supreme Court which ruled again in favour of the McDonaghs last year.
A reply to his letter to Geraldine Tallon was sent to Dick Roche by Des O’Brien the Director of Services, Planning and Development, with Wicklow County Council in February 2012. In his letter, O’Brien accused Roche of having “a warped analysis of events”. Before this communication he had received no response from Tallon or the Department to his explosive letter of complaint.
O’Brien wrote: “The planning system operates in full public view, and Wicklow County Council has behaved honourably, responsibly, and effectively throughout this process. Your letter to the Department is unworthy, spinning facts, and through innuendo painting dedicated officials as either corrupt or obstructive, and wholly unconcerned about the public, and in this case planning applicants, who we are here to serve”.
Roche wrote an email to Tallon a month later expressing his grave disappointment at the manner in which the issue was handled by the Department of the Environment and what he described as a “dis-edifying attempt at ‘pass the parcel’”.
He said that much of the material in O’Brien’s letter was a “political rant that should not be written by a public servant” and had “no bearing whatever on the key issue of the manner in which ABP has conducted its affairs”. Roche also wrote that it was a “matter of scandal that two statutory agencies (Wicklow Co Co and the NRA) could not deal with the issues that existed between them in connection with road planning”.
Meanwhile, the McDonaghs are considering legal action in relation to the losses they have incurred which are now in excess of €30m. “I am at a loss to understand why there is such hostility to a project which would bring quality jobs to Wicklow”, McDonagh told Village. •
