In April An Bord Pleanála surprisingly granted permission to Crekav Trading for 104 houses and 432 apartments on playing fields east of St Paul’s College on Sybil Hill Road in Raheny, despite receiving more than 1,000 objections, and a recommendation for refusal from Dublin City Council. 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.
According to Dublin City Council’s Parks Division, St Paul’s is the most important ex-situ (ie outside of the North Bull Island) feeding site for Brent Geese in Dublin, based on numbers (a large majority of the Dublin population feed at this site), regularity of use, geographical location in relation to North Bull Island, size, and the relative lack of disturbance. The Brent Geese on the North Bull Island Special Protection Area are now largely reliant on the availability of inland feeding grounds, like St Paul’s. These lands are not designated but are nonetheless protected under habitats legislation. The only exception whereby development might be deemed to be compliant with this protection would be in exceptional cases where there is overriding public interest, and even then, only when no feasible alternative for the development has been demonstrated, and compensatory measures to offset the ecological damage are implemented. There is no suggestion that these exceptional circumstances and compensatory measures are to be found in the case of this development.
Development on feeding areas forces the geese to travel greater distances to feed and potentially brings them into conflict with agricultural interests feeding on winter cereal crops. This results in greater expenditure of energy which affects the condition of the birds and their ability to complete the annual migration to their breeding grounds. The cumulative effects of this residential development proposal alongside existing impacts on geese arising from other already permitted developments which have removed some of their feeding sites, should have been assessed by An Bord Pleanála. In addition it should have considered whether adequate feeding areas will be left for Brent Geese after these developments are complet and whether any such areas are zoned appropriately in the Dublin City Development Plan. An Bord Pleanála is obliged to comply with European law on these issues .
In considering the proposal, An Bord Pleanála’s inspector noted that the extent of potentially suitable feeding areas for the geese within Dublin city is finite and that the currently recognised feeding sites that are considered to be an alternative to the lands at St Paul’s may currently be experiencing pressures, including recreational disturbances, that may limit their capacity to accommodate the loss likely to occur as a result of the proposed development. Not withstanding this concern by its inspector, the planning board went on to grant consent for the development at the St Paul’s site.
Of course Bord Pleanála decisions are formulaic and legalistic but we can take some indirect insight into its possible thinking from the reasoning in the report of its inspector whose conclusion it adopted: “The numbers of inland feeding areas are relatively significant, the geese appear to be thriving based on their increasing populations and I consider that the loss of this site as a feeding ground will not adversely impact on the conservation objectives of any of the five designated sites. In light of this assessment, I am of the opinion that there is capacity for the existing ex-situ inland feeding areas to absorb the loss of St Paul’s and I consider it reasonable to conclude on the basis of the information on the file, which I consider adequate in order to carry out a Stage 2 Appropriate Assessment, that the proposed development, individually or in combination with other plans or projects would not adversely affect the integrity of the five relevant European sites, in view of their Conservation Objectives”.
However, whether this reasoning meets the requirements of European law and related case law remains to be seen. Bord Pleanála is under political pressure to approve housing schemes, in a housing crisis and the government is infamously unconcerned with environmental and planning niceties. In particular, for instance.
The lack of certainty around the capacity of alternative sites to absorb geese displaced from the St Paul’s site may be problematic. Dublin City Council had eloquently warned in its submissions to An Bord Pleanála that the suggested capacity of alternative sites to accommodate the displaced geese is questionable and may not be achievable.
The St Paul’s site is one of the top eight inland feeding sites for Brent geese. Accordingly, Bird-Watch Ireland and the Irish Brent Goose Research Group commented in their submission to An Bord Pleanála on this application: “We conclude that is an unacceptably high proportion of the population to be expected to be displaced to and absorbed within the existing network of sites and not in keeping with the conservation objectives of adjacent European protected sites” and furthermore that: “To suggest that these birds are flexible and will simply move elsewhere is simplistic and is especially weak given the recent pattern of development (all representing habitat loss) in the area”.
The application was made under the new Strategic Housing Development ‘fast track’ planning system. This allows applications for schemes of more than 100 homes to be made directly to An Bord Pleanála, bypassing the local authority decision phase and excluding the possibility of an appeal. This leaves judicial review as the only course of action for those aggrieved by the planning consent.
A miffed Dublin City Council, which turned down a less intrusive application for an associated application for sports facilities on a site at St Paul’s adjoining this one (on grounds of impacts to Brent geese) is hostile to the decision. City Manager Owen Keegan told the Council: “My recommendation, based on planning advice, was the board should not have granted this”. He obtained, presumably suitably conservative, legal advice that it did not have “locus standing” or legal standing to take a judicial review of the board’s decision.
However, the City Manager is finally reviewing the implications of this and other decisions for vulnerable institutional amenity lands – lands adjoining schools, hospitals etc. “The intention is to get legal advice as to what are the implications, and are there any measures we could take to protect the development plan”.
A legal challenge to An Bord Pleanála’s decision is being taken by three separate parties including local residents, the Louth Environmental Group and veteran environmental campaigner, Peter Sweetman, primarily on grounds of non-compliance with the European Habitats, Birds and EIA Directives. The case has been adjourned again until Thursday June 7 when there will be a hearing on a technical matter of determining whether the case will be dealt with in the ‘strategic infrastructure list’ under Judge Barniville or whether it will go into the regular judicial review list.
An Bord Pleanála is no stranger to judicial reviews. Over the five years from 2012 to 2016 the number of judicial review proceedings initiated against its decisions was 17 in 2012, rising each year to a high of 48 in 2016. An Bord Pleanála accumulated a deficit of €2m in 2016. The main reason for this deficit, as stated in its Annual Report and Accounts for 2016, relates to the ongoing exposure to legal cost liabilities. Legal costs continue to be An Bord Pleanála’s largest item of non-pay expenditure at over€3.78m or nearly 17.2% of total expenditure in 2016.
A 2016 report by a ‘Review Group’ commissioned by the Bord itself concluded: “applications for judicial review of decisions of An Bord Pleanála has followed a generally upward trend in recent years. Reasons for this trend include alleged breaches of obligations arising under the Environmental Impact Assessment and Habitats Directives, which are featuring regularly in judicial review proceedings against An Bord Pleanála”.
Of relevance to its St Paul’s decision the Review goes on: “In recent years, the Habitats Directive, in particular, has become the focus of attention and the obligations it creates regarding appropriate assessment are obviously proving challenging for An Bord Pleanála. Lord Carnwath’s comment that the Habitats Directive ‘is particularly significant for the town and country planning systems in the United Kingdom because it imposes obligations not only on how the decision-making must be carried out but also on the decision-making outcome’ applies equally to its impact on the Irish planning system”.
The Review Group noted also : “in particular, the Review response dated 9 December 2015, made by An Bord Pleanála’s Partnership Committee, which states at page 3 that, ‘the research role is not adequately resourced in the organisation despite the rich sources of information available’. Although improvements have been made, this appears not to be a new issue”. And it goes on later: “Furthermore, given the wide range of necessary expertise which is required for the determination of the case load of An Bord Pleanála, it is simply impracticable to ensure that the Board contains ordinary members who are expert in each of the various disciplines that arise in the work of An Bord Pleanála. More fundamentally, it would risk undermining the work of the Board and render it more difficult to operate in divisions, because it might be considered that decisions involving certain areas of expertise should only be taken by a division containing a Board member with that relevant expertise. The need for adequate expertise is a matter that the Review Group considers must be addressed within the inspectorate and wider staffing of An Bord Pleanála”. It is clear An Bord Pleanála’s problems are not limited to susceptibility to judicial review of its decisions, they are systemic.