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Geese to the Rescue

Development on lands at St Paul’s school, adjoining St Anne’s park, is illegal under Habitats legislation though there is pressure on the planning authorities to grant developments, particularly residential, regardless of merit or quality

Clontarf/Raheny faces the loss of a big tranche of green space as a large residential development on lands currently used as sports facilities goes before An Bord Pleanála. What has been missed, in the turmoil of local antagonism, is that the development is illegal under Irish and European law as it threatens a famous, cherished and protected species, Brent Geese. The geese are afforded strict legal protection under the Special Protection Area designation for North Bull Island, arising out of the Habitats Directive.

There are currently two planning applications under consideration on a site adjacent to St Anne’s Park and St Paul’s school in Clontarf/Raheny in Dublin. One is a proposed sports facility with permission sought from Dublin City Council. The other is a proposed large-scale (536 units: 104 houses and 432 apartments) residential development under a strategic housing development application to An Bord Pleanála. The two applications are interlinked; the sports facilities are being proposed to compensate for the loss to the residential development of the existing heavily-used sports pitches.

 

Land Ownership and Planning History of the Site

Outlined in red are the lands on which the combined sports facility and residential developments would take place, in the context of the adjacent larger St Anne’s park.

The site was originally part of the St Anne’s estate, the home of the Guinness brewing family on which Lord Ardilaun forged a magnificent Palazzo out of the original seventeenth-century house.

In the 1930s Dublin City Council CPO’d lands (which included this site) and used some of the lands for social housing, the rest became St Anne’s park. The great house burnt down in 1943.

In the 1940s the Vincentian Fathers bought property nearby and developed a school; St. Paul’s. At the same time Dublin City Council wished to extend Vernon Avenue north to the Howth Road via Sybil Hill. A land swap occurred – the Vincentians got 15 acres of the park for a nominal sum and Dublin City Council were able to connect Vernon Avenue with the Howth Road via Sybil Hill.

As to ownership of these lands, a post on the ‘I Love St Anne’s’ Facebook page dated 4 June 2016 (attached to the video clip of Councillor Ciaran O’Moore) states “Interestingly, the last time we checked, the 15 acres were still registered with the Land Registry as belonging to DCC. The legal dept of DCC carried out a title search on the lands last year, concluded that they belonged to DCC & registered them as such. We have been told that this is an irrelevant clerical error, presumably it’s a clerical error that would need to be resolved before Title on the land can pass to Crekav Developments who are rumoured to have paid in excess of €15 million to the Vincentians for it”.

The lands have been used as sports pitches by St Paul’s school and up until very recently (i.e. the last few weeks) by local GAA, soccer and rugby clubs – many hundreds of children have been using these pitches at the weekends. The local sports clubs have now been told they may no longer use the lands.

Up until 2001 the lands were open to, and contiguous with, St Anne’s park. In 2001 the Vincentians, citing insurance reasons, applied for and were granted permission to erect a fence around these lands, creating a barrier/ distinction between them and the park. Despite this separation, local people have always viewed these lands as an integral part of the amenity and facilities of St Anne’s park.

In 2012 the Sisters of Charity won a court case against Dublin City Council about Z15 (i.e. Community and Institutional Resource Lands: Education, Recreation, Community, Green Infrastructure and Health – To protect and provide for institutional and community uses) zoning for lands of theirs in Sandymount, Dublin 4. The Sisters of Charity objected to a condition of the Z15 zoning which precluded development on their lands. All of the order’s 108 acres of lands in 18 separate parcels had been zoned Z15 in the city development plan. They said the Council had given no reasons for the restrictiveness of the zoning compared with other open space lands.

The Commercial Court ruled that all Z15 zonings in the Dublin City Development Plan should be quashed, and the city Council did not have the nous to simply give reasons to Z15 landowners. A good one would have been that the citizenry had built up a dependence on the institutional lands for open space; and that many religious lands had been purchased by monies subscribed by the citizenry for purposes that might now be described as the common good.

Accordingly, in May 2013 Dublin City Council amended its Development Plan and Z15 zonings including for the St Paul’s lands. The result was that the revised zoning allowed residential development as “open for consideration”.

In 2015 the Vincentian Fathers sold the lands to a developer, Arklow-born Greg Kavanagh and Pat Crean from Kerry, through their New Generation Homes, for a reported €25,000,000. It appears that subsequently Greg Kavanagh and Pat Crean split, with Pat Crean now pushing the application at St Paul’s under Marlet Property Group, with financial backing from M&G, an investment-manager arm of the UK’s Prudential.

In 2015 two planning application were lodged, but not pursued, by Crekav Landbank Developments Limited for sports facilities and a residential development (381 units).

In Sept 2017 a planning application was lodged by Orsigny, a Company Limited by Guarantee, for sports facilities. This application is still live. Bizarrely, the Clontarf GAA (which until a few weeks ago had hundreds of children using the site at weekends and have now been told they cannot use the pitches) put in a letter of “full support” for the sports-facilities development. The sports facilities proposed are for two all-weather pitches and a sports hall – which will be a substantially inferior facility to the existing six or seven pitches which will be lost. However, it appears that the GAA club has now put in an objection to the residential application. It really must account for its approach which may say a lot about the approach of sporting bodies to developers. Clontarf Football Club is also now objecting to the development, and claims tenancy rights which may be problematic for the developer, legally. Dublin City Council and An Bord Pleanála have separately told Marlet it should provide ‘like for like’ ie six, pitches, but Marlet is not listening.

On 22 December 2017 a planning application was lodged by Crekav Landbank Developments Limited to An Bord Pleanála for a 536-unit residential. This application is live and the deadline for submissions is 5 February 2018. Under the strategic housing legislation the decision on this application cannot be appealed.

 

The Brent Goose Issue

The St Paul’s site supports an internationally important population of Brent Geese. The population of Brent Geese on the North Bull Island Special Protection Area are heavily reliant on the availability of inland feeding grounds, like St Paul’s, that are not designated, but are nonetheless protected, under habitats legislation.

The site supports around 50% of the Dublin Bay population of the Brent Goose, and is one of the most important inland feeding sites for the species in Dublin. This is reflected in correspondence from Dublin County Council, Department of Culture, Heritage and the Gaeltacht and Birdwatch Ireland on relevant planning applications for the St Paul’s site.

Dublin City Council’s Parks & Landscape Division commented on the sports proposal as follows:

“Based on the information provided by the [ecologists’] study, the site in question (St Paul’s) can be regarded as the most important ex-situ feeding site for Brent Geese in Dublin based on highest peak counts of Brent Geese, regularity of use, its geographical location in relation to North Bull Island, its size, and the relative lack of disturbance”.

According to government, through the Department of Culture, Heritage and the Gaeltacht:

“The proposed development will result in the permanent loss of feeding habit for the pale-bellied Brent Goose. The numbers recorded in the report are well above the international-importance numbers for the species and represent approximately 50% of the roosting stock associated with the North Bull Island roosting Special Protection Area for Birds.

Amenity parklands and grass football pitches are valuable feeding areas for geese. The replacement of them with all-weather pitches results in the loss of feeding areas. This forces the geese to travel greater distances to feed and potentially to bring them into conflict with agricultural interests feeding on winter cereal crops. This results in greater expenditure of energy which impacts on the condition of the birds and their ability to complete the annual migration to their breeding grounds…The cumulative effects of the existing impacts need to be taken into consideration. In addition the local authority needs to ensure that such areas are zoned appropriately in its development plan. It is obliged to comply with the Birds Directive”.

Dublin City Council notes that the developer’s ‘Natural Impact Statement’ report concludes that:

“The impact of the proposed development is mitigated by the availability of a network of alternative inland feeding sites (124 known sites and 25 potential sites) which have the capacity to absorb the loss of the St Paul’s site, in-combination with the loss of 12 other identified sites. It states that this network of sites is subject to protective policies and objectives as outlined in Appendix F of the report”.

The Council notes:

“The submitted report does not suggest that the temporary loss of feeding habitat due to construction can be mitigated by the timing of these works, or that the permanent loss can be minimised by the layout of the on-site development. In this regard, subject to the provision of further information to demonstrate same, it may be possible to rule out significant impacts of this development on its own. However, this is not likely to be possible in-combination with the referenced residential development”.

The Council goes on:

“As per ‘Appropriate Assessment of Plans and Projects in Ireland – Guidance for Planning Authorities’, if mitigation measures are insufficient, or are not actually practicable and achievable to avoid the risk entirely, then, in the light of a negative assessment, the plan or project may not proceed. There is no indication that the applicant has control over the management of the sites within the proposed network of alternative inland feeding sites, which comprises lands in both public and private ownership, with varying land-use zonings, and located in different local authority areas. The report also notes that thirty of the sites (as of July 2017) have planning permissions granted or pending, and it is conceivable in the context of the current economic climate, that this number is likely to rise, increasing developmental pressure on the network”.

There is sufficient scientific information available to demonstrate that if the strategic housing application to ABP is granted (probably also if the sports application to DCC is granted, although its impacts on Brent Geese are much less severe, that this would be in contravention of the Habitats Directive, and the relevant Irish transposing legislation. However there is a real risk that DCC and ABP may not fully understand this or appreciate the significance of the impacts on Brent Geese. The implications of an incorrect grant of planning in the case of the strategic housing application are particularly significant as there is no opportunity to appeal this decision. In that event the only course of action would be judicial review.

Aside from the Brent Goose issue, there is a very valid concern around project-splitting and EIA as the sports facility element of the development has been carved out into a separate application to DCC, which is not accompanied by an EIAR (formerly called EIS). Dublin City Council Parks and Landscape Division noted, “It is important that this application is assessed both on its own merits, but also in-combination with the proposed residential development”.

It appears that the developer bought the lands outright, and not conditional on planning, and is perhaps desperate to get a financial return on the investment. When a motion was put forward to rezone these lands from Z15 to Z9 open space (presumably in an attempt to protect them from development), councillors were pestered by the developer to try to influence their vote on the zoning. There are eight videos of councillors commenting on these approaches, one of which refers to bullying and threats of legal action by the developer. All local councillors oppose the development.

Since the 2012 court ruling on the Sisters of Charity case, there has been a trend of sale and/ or development of institutional (primarily owned by religious orders) lands for re-development for housing e.g. Our Ladies Grove in Goatstown, Clonkeen College, Oatlands College. This seems to be a win-win for the government (meeting their priority to get houses built), the religious orders (financial gain) and developers/investors (financial gain). But is it a win for proper planning and sustainable development? In the name of solving the homeless and housing crises, the government is making the fast-tracking of residential developments a priority. Speed is a good thing but residential developments are forever, or at least for hundreds of years. There is pressure on planning authorities to grant residential developments regardless of merit or quality. Mistakes that tend to reduce quality of life and sustainability are inevitable. This scheme is a clear manifestation. And if the scheme faces a challenge for non-compliance with the Habitats Directive or project-splitting, it will almost certainly lose.