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NOTE: THIS APPEAL WAS UPHELD. SEE OUR PRESS RELEASE OF 1 JANUARY, 2002
An Bord Pleanala Irish Life Centre Lower Abbey Street Dublin 1 00-12-15
RE: Proposed Development of 32 No. apartments and 57 No. Townhouses, associated site works and drainage at Lower Dock, Big Meadow, Athlone Co. Westmeath.
Dear Sir,
The grounds of our objection are as follows:
1. The original zoning as light industrial was unreasonable. 2. The Material Contravention passed by Athlone Urban District Council was unreasonable and could not be considered in the interest of proper planning and development of the area. 3. The requirement for and Environmental Impact Statement 4. The developer did not adequately respond to request for Further Information. 5. The lands in question are a Special Protection Area under the Birds Directive. The lands are supposed to be designated a Special Areas of Conservation under the Habitats Directive. 6. The lands are in a annual flood plain and therefore an improper place for sustainable development. 7. Sewage
1.1 The original zoning as light industrial was unreasonable.
1.2 To zone a flood plain for light industrial development was we submit unreasonable. This is the sort of development which has added to the flooding in Clonmel. Flood plains are natural swales and if this plain is raised it will cause the water to go somewhere else possibly the streets of Athlone.
2.1 The Material Contravention passed by Athlone Urban District Council was unreasonable and could not be considered in the interest of proper planning and development of the area.
2.2 The building of houses an apartments on this flood plain is even more unreasonable than the light industrial zoning as this Proposed Development attempts to raise the whole site and will in our opinion cause the river to back up.
3.1 The requirement for and Environmental Impact Statement
3.2 For any Proposed Development which impinges on a Special Protection Area or a Special Area of Conservation the regulations require that the appropriate assessment be carried out. We submit that in this case the only appropriate assessment would be a full Environmental Impact Statement.
4.1 The developer did not adequately respond to request for Further Information.
4.2 The letter of the Town Clerk of 16th May 2000 sets out clearly the requirements of the council. It is our submission Further Information provided did not fully address the matters raised and therefore under the Acts it is not lawful for a grant of planning permission to be issued.
5.1 The lands in question are a Special Protection Area under the Birds Directive. The lands are supposed to be designated a Special Areas of Conservation under the Habitats Directive
5.2 We refer to the letters from Duchas on file.
a. On the 10th July 1997 Duchas wrote to Athlone Urban District Council stating:
"I refer to your letter of 19th March 1997 and to the accompanying Draft Development Plan for Athlone.
I have enclosed for your information a map showing a rough guideline of the area that would be of concern to us from a nature conservation point of view. It appears that the proposed designation of this area as a Natural Heritage Area and as a Special Area of Conservation have not been taken into account in the compilation of this plan. Part of the area marked OS.4 is also of importance to the corncrake, which is a protected species and the subject of a conservation project throughout the whole of Ireland.
The National Parks and Wildlife Service request that you take cognisance of these proposed designations and have them indicated in the Development Plan. More detailed maps outlining the areas concerned are available from the designations unit of this Service.
The delay in replying is regretted
Yours sincerely
Catherine Doherty Executive Officer 10th July 1997"
b. We find that the National Parks and Wildlife Service did not send the detailed maps of this site at this stage, to the Urban District Council strange to say the least.
c. On the 30th March 2000 Duchas the Heritage Service wrote to Athlone Urban District Council in response to their letter informing them of this appliciation which was received by Duchas on the 20th January 2000. Before we go into the details of this letter we must point out that we find it strange, when Duchas must know that a Planning Authority has a statuary limit of 2 months to make a decision, that they took over two months to respond to this letter.
d. The letter is as follows:
"We refer to the Council's notification of 20 January 2000 regarding the above proposed development.
As questions have arisen about whether or not this proposed development is in the Middle Shannon Callow Special Protection Area (SPA) we enclose a copy of a map showing the boundary of the SPA in this area. Almost 40% of the area of the proposed development lie within the Special Protection Area, an area of callows habitat designated for the protection of wild birds. The Big Meadow callows hosts notable numbers of wintering waterfowl, most notably Whooper Swans, a species listed in Annex 1 of the EU Birds Directive(Council Directive 79/409/EEC on the conservation of Wild Birds) as well as Wigeon and dabbling duck. However, the chief value of the site lies in the presence there of numbers of Corncrakes. The site is an important breeding area for this species. Bird records confirm the continued presence in the area throughout the 1990s and, show, but sustained growth in numbers. These numbers represent a significant percentage of the entire breeding population of the species in this country. The Corncrake, which is also an Annex 1 species, is globally endangered and is under threat of extinction. As the State authority with responsibility for nature conservation, Duchas the Heritage Service is required to ensure that all such species, together with designated SPAs, are afforded the highest possible levels of protection.
The proposed development would, if allowed to proceed, have a significant negative effect on the environment within the SPA. It would cause disturbance to all wildfowl in the area and poses a particular threat to nesting Corncrakes.
In order to protect this globally endangered species, as well as other Annex 1 species, we wish to object to the above proposed development and strongly recommend that planning permission be refused.
In addition to its statuary obligations under the Local Government (Planning and Development) Acts 1963-1999 and the 1994-1999 Regulations made thereunder, the Urban District Council has certain statuary obligations and responsibilities, in granting permission for such developments in Special Protection Areas, under the European Communities (Natural Habitats) Regulations (S.I. 94 of 1997) which gave effect to Article 6 of the EU Habitats Directive (Council Directive 92/43/EEC on the conservation of natural Habitats and of wild fauna and flora). These regulations provide for measures to prohibit or control activities or operations likely to have a significant impact, either individually or in combination with other developments, on the ecology/environment of such areas. In addition there is a requirement on the Council to ensure that appropriate assessment is undertaken of the implications for the site in view of its conservation objectives. Where the Council, having regard to the conclusions of the assessment, decide to grant permission for the proposed development they may do so only after having ascertained that it will not adversely effect the integrity of the European site concerned and that the development has to be carried out for the imperative reasons of overriding public interest. These statuary provisions are at sub-sections (1) to (11) of Section 27 of the afore mentioned 1997 Regulations.
Please let us have a copy of the Council's determination when a decision has been made.
Mise, le meas
Patrick White Development Applications Section 39th March 2000
e. Duchas further wrote to the Urban District Council on the 2nd of May 2000 stating:
"The relevant SI designating the Shannon Callows Special Protection Area(SI 305 of 1995- copy attached) omitted to include counties Roscommon and Westmeath. However the European Court of Justice has interpreted the Birds Directive (CE 79/409/EEC), and all its requirements, to apply to all areas hosting internationally important populations of species listed in the Directive, whether or not actually designated. In this particular case, although it is not actually designated an Special Protection Area, Big Meadow callows hosts notable numbers of wintering waterfowl, most notably Whooper Swans, a species listed in Annex 1 of the European Birds Directive as well as Wigeon and Dabbling Duck. The chief value of the site is the Corncrake, which is globally endangered, and under threat of extension. The numbers present in the Big Meadow, Athlone represent a significant percentage of the entire breeding population of the species in this country and accordingly it is significant that their ecology be protected.
The importance of the area as set out in Mr. White's letter of the 30th March is an accurate account of the position. I wish to confirm that should the proposed development proceed it would have a significant adverse impact on the environment, on the wildfowl using the area and on nesting corncrake (an endangered species). Duchas wishes to advise the planning authorities that this proposed development would be in breach of the EU Birds Directive. Accordingly Duchas advises Against the granting of planning permission and would be obliged if you could inform Duchas as to the outcome of the planning appliciation in due course.
In order to regularise the SPA situation the whole site (including Big Meadow) will be re-designated under an new SI in the near future.
Yours sincerely
Brendan Mahon Site Designations 02/05/00
f. On the 7th September 2000 Duchas wrote again to the Urban District Council as follows:
We refer further to our letter of the 30th March 2000 outlining our objections, on nature conservation grounds, to the above mentioned appliciation.
As subsequently indicated in our faxed notification of the 27th July 2000, a compressive review of the area was currently in progress, the purpose of which was to establish the conservation status of the proposed development site. The review has now been completed and as previously advised, we now wish to formally confirm that the site is not within any proposed or candidate conservation area. The review also established that the site did not contain any important habitat and that the conservation value of the area is not sufficient to warrant its future designation as a proposed or candidate conservation are.
While we are now satisfied that the development proposed will not have a significant negative impact on any important habitat or conservation area, we continue to have concerns about the possible adverse effects on Corncrakes, who use the nearby area. These concerns arise from disturbance to these birds resulting from the likely increase in human and domestic pet traffic which would undoubtedly result from a development of this size. We have further concerns that the light from the three story dwellings in the proposed development represents an additional source of disturbance to the birds.
However, it is considered that these concerns can be addressed if measures are put in place to ensure that the site is screened for light pollution and if a people pet proof fence is erected which would cut off and prevent access to/ from the Big Meadow.
Duchas the Heritage Service is therefore prepared to withdraw its objection to this appliciation provided that suitable conditions are imposed in the grant of permission which will require the applicant to carry out appropriate measures which will satisfy these requirements.
Yours sincerely Patrick White Development Applications Section. 7th September 2000-12-12
g. Mr. James P. Shannon of Deerpark Road , Athlone has forwarded to me information which received from Duchas under the Freedom of Information Act, it is interesting to note that Duchas received his request on the 19th October 2000 and replied on the 23rd of November which is outside the time permitted in the legislation. h. The first disclosure is a minute of a meeting with Birdwatch Ireland, it goes as follows.
"The meeting was held at the request of Birdwatch Ireland and they asked for details of the designation status of the proposed development site at the Big Meadow.
I told them that the site was not an SPA and that any information to the contrary including a map they produced was an error.
I also said that it was not our intention to designate it since we did not believe it was an integral part of the Corncrake habitat adjacent, but was hydrologically and ecologically distinct and that it had no current use by Corncrakes and was not a suitable habitat.
Signed P Downer 1st Nov. 2000-12-12
i. The next document is a report from Judit Kelemen to Val Swan, Peadar Caffrey Pat Warner and Niall Harmey dated 13.6.2000. This report states:
"To: Mr. Val Swan, Mr. Peadar Caffrey Cc: Mr. Pat Warner, Mr. Niall Harmey
From: Judit Kelemen
Date: 13.06.2000.
Subject: Development on Big Meadow, Athlone
The Big Meadow near Athlone is part of the River Shannon Callows Special Areas of Conservation and SPA. At the Northern boundary of the site development is encroaching on the designated land, I visited this area with Niall Harmey, CR on the 08 of June 2000 The following activities were noted during the site visit
Pipe laying: the County Council laid a pipe connecting the sewage collection point West of the canal (outside the site) with the sewage treatment plant on Golden Island. This single pipe is completely sealed from pumping station connecting to the old pipe crossing the River Shannon. This affected a 9 m strip of land close to the Northern boundary of the site. However, as this operation is finished, there will be no further disturbance to this area and it is expected that the vegetation will re-colonize this area.
Infilling at the Northern Boundary: material dredged from the canal was dumped and leveled on a small FIEld 6n the NE boundary of the site, near the road. There is a gate which was open at the time of the site visit. The leveling was carried out by the sub-contractor doing the pipe-laying operation (but as a separate action). The subcontractor confirmed that following the leveling, there will be no more disturbance to this FIEld and that the gate will be locked.
Infilling with rubble: this activity (by developer, Mr. Kilmartin) was carried out some time ago and no recent work was apparent at the time of the FIEld visit.
Infilling/Dumping/Access: some infilling and rubbish dumping was noted at the Northern boundary, near the River Shannon. There is a broken fence along this line, and this is used as an access point to the Big Meadow. There is a small footbridge across the drain within the site, therefore the Meadow is easily accessible. Note: the NHA boundary runs along this drain!).
Road: a road was developed by the Shannon Fisheries Board along the canal running into the Shannon. The barrier, which was erected here was removed, to provide access for fishermen. SFB plan to put the barrier back in place in autumn, but not to use it during the summer. This road now allows vehicular access to the Big Meadow, which may lead to the increase of disturbance to the birds and also to dumping.
During the FIEld visit two calling male Corncrakes were noted along the Northern boundary of the site. One bird was calling in a small meadow, which is outside the site, directly adjacent to infrastructure. The other bird was calling in the meadow just South to the strip of land where the sewage-pipe was laid.
I am concerned that these birds (and indeed, their nests and chicks) are seriously threatened by influence of The nearby human habitation and the various human activities within the Northern section of the site. Of particular importance are dogs and cats, which can stray onto these FIElds from the adjacent houses. To alleviate this situation, I propose the following actions:
· Stop Further development on the Northern section of the site, along the canal, e.g. infilling.
· The barrier at the entrance to the site (at the Shannon Fisheries Board's road) should be put back and locked during the night. Mr. Harmey discussed this with Mr. Man Nolan of The SFB Mullingar) and asked that the barrier should be put back in place. Mr. Nolan will advise on this issue later.
Erect wall/fence along the Northern boundary between the river and the road, possibly along the drain) which would prevent the access of humans and pets to the Meadow This could be done in liaison with the developer who owns the warehouse outside the site.
· Create a buffer area, which is not attractive for Corncrakes along the Northern boundary of the site to keep the birds away from The areas which may be dangerous for them. This "Corncrake-free" zone may be created by early mowing (before the birds arrive). This issue should be discussed with the BWI Corncrake Officer.
It is necessary to discuss this issue further on site, with special regard to the discrepancy between the Special Areas of Conservation and NUA boundaries. I propose a meeting on the 21st of July (at 3,00 pm) between Mr. Swan, Mr. Harmey, the BWI Corncrake officer and myself. Mr. Harmey should contact the BWI officer regarding this meeting."
j. This next document is signed by Pat Warner we copy it in full
"Informal appeal of the designation as Special Areas of Conservation, SPA, and NHA of the lands of Heavey and Partners, Athlone on the Shannon Callows at Athlone, SITE CODE 216 SITE NAME River Shannon Callows VISIT DATE 21/07/00 PRESENT PW, JK, VS, NH
This case started with an application for planning permission by Mr. Heavy of Heavey and Partners, to build 79 dwellings (in a series of apartment blocks) on lands im- Mediately to the south of Athlone town. This application was objected to by Duchas on a number of grounds (see attached).
The Athlone UDC expressed concern about some contradictory designation maps they had received (which could have implications for the objection we lodged) and this was investigated by Dr.Kelemen, the Regional Ecologist. The report of her investigation is attached
Subsequently Heavey and Partners appealed the designation and these papers are the report on the informal stage of the appeal.
DESIGNATION HISTORY This site was initially surveyed as an NHA. It included much of the low lying land im- Mediately south of the Athlone urban area which floods in most winter (callow land, locally known as the Big Meadow). The NHA did not include the narrow strip of FIElds adjacent to the town. This strip is about 100m wide and has been raised by infilling by about 1m It is now above the normal winter flood level and it floods most infrequently (the winter of 98-99 being one of those infrequent occasions). The vegetation is either improved grasslands or waste ground weeds, which is totally different vegetation from the wet meadow communities found in the callows.
The boundaries between this strip and the callows are
To the South a deep drain running down to the Shannon. All land south of the drain contains callow vegetation. All land to the north does not.
To the north is a road and the back garden walls of Athlone.
To the East is the Shannon, and to the west is the old canal. The strip is hydrologically separate from the callows.
Subsequently a re-survey of the site proposed to include part of one of the FIElds in the strip adjacent to the town. The reasons for the inclusion was the presence of a calling male corncrake in the vicinity of this FIEld plus the importance of high ground for corncrakes in times of exceptional summer flood.
This inclusion has not yet been digitised on NHA maps. It was however digitised onto the cSpecial Areas of Conservation map which was published. The initial SPA map for this site did not include any areas in County Westmeath. A revised SPA map has been prepared, including Westmeath and the inclusion and is now with the minister's office. Currently there is no SPA designation on the lands concerned.
CONSERVATION VALUE There is no suggestion from any source that the inclusion has any conservation value other than as habitat for corncrakes.
The Big Meadow holds annually a significant number of calling corncrakes up to a maximum of 5(1999)
There is a recent report (from BWI, confirmed independently by NPW staff) of a male corncrake calling from the hedge on one side of the inclusion but outside the inclusion by about 10m. There are no reports of corncrakes calling from within the inclusion.
The RE has suggested that the included FIEld is not a very suitable corncrake breeding site. This is because it is mainly bare ground with weeds and active dumping. It is also so close to the town (70m from a line of back gardens) that it would have heavy disturbance and predation from cats, dogs and humans. On both my visits to the sites I saw locals walking across the inclusion with dogs running free.
Dr Kelemen has suggested that a development in The inclusion with a high fence and the drain would probably provide better over-all corncrake conservation in that any bird displaced from this area would find safer breeding grounds in the rest of the meadow. The developers have made it clear that they are willing to install any such barrier and to control access through the site. They will not permit tenants in the apartments to keep pets and they have a track record of enforcing this prohibition on tenants in their neighbouring development.
This suggestion was agreed by regional management and myself and was referred to research, who had no objection, subject to what BWI said.
We met Ms. Casey of BWI on the site and she was adamantly opposed to any such proposal. Her reasons were varied and sometimes contradictory but were based on the fact that a calling male corncrake has been heard in the general area (the hedge) for the past number of years. She also believes the FIEld to be an integral part of the callows. I attach a letter from her.
She was unable to accept the argument about the amelioration of predation.
The FIEld is circa 1 ha; a calling male corncrake will probably attempt to breed (if he attracts a mate) somewhere within the 16 ha around his calling post and will feed over a much larger area. There is a huge amount of unfilled habitat adjacent to this FIEld which is better habitat with a better chance of breeding success.
It has also been suggested that the higher ground of the inclusion should be designated because it could be used as a refuge in times of exceptional summer flooding. Such flooding would destroy corncrake nests so it is only the adult birds who have to fly to safety. I believe that they have the capacity to fly to anywhere within in the 90 km of the edge of this Special Protection Area find high ground Almost all that high ground will be safer than this 100m stretch. This is not a significant loss.
RECOMMENDATIONS DESIGNATION 1. The site has to be removed from the cSpecial Areas of Conservation since it contains nothing which would attract designation under the Habitats Directive.
2. The inclusion of the FIEld in as SPA is going to be subject to critical scrutiny by the developer and must be based on robust science. The calling male is outside both the designated site and the proposed inclusion. The inclusion contains no calling males, though one may use it to a small extent.
It is not good corncrake habitat and has very high potential predation problems.
I think it should not be included in an SPA.
If the site has no positive value for corncrakes, it should not be an NHA either.
RECOMMENDATIONS - GENERAL I don't think it amounts to significant deterioration of habitat to loose circa 1 ha of unsuitable and dangerous habitat in an area where there are very large areas of better, safer habitat. I therefore do not think we should oppose the development, but that we should seek to put conditions about fences eetc into the planning permission.
I have no doubt that BWI will not agree and I think it is quite important to look at their role in this case.
The corncrake survey program is funded by NPW (and to a lesser extent by RSPB), but BWI runs it and the staff are their employees. BWI therefore has good data for corncrake locations but they have no statutory role in deciding applications for Planning permission or appeal.
I even have doubts about the probity of discussing cases with them but I did so in an attempt to get consensus.
Their advice will be based on the best information available but it will be conditioned by their role as an NGO with a very extreme interpretation of the precautionary principal. I think we have to be careful to re-interpret their recommendations. I also think they are scientifically wrong not to consider the role of predation."
We are at a loss as how Mr Warner can say "There is no suggestion from any source that the inclusion has any conservation value other than as a habitat for Corncrakes."
If Mr Warner had read the submission from his own department "The Big Meadow callows hosts notable numbers of wintering waterfowl, most notably Whooper Swans, a species listed in Annex 1 of the EU Birds Directive(Council Directive 79/409/EEC on the conservation of Wild Birds) as well as Wigeon and dabbling duck."
But when one reads Mr Warner's comments on the planning process "but they have no statutory role in deciding applications for Planning permission or appeal." His comments come into perspective. At least he did not claim that there were no Whooper Swans on the site in July as justification for his opinions. Obviously Mr. Warner is not aware of the public consultation requirements of European Directives and Agenda 21. Mr. Warner definitely believes that "appropriate assessment by the Planning Authority" applies only to him and that he and only he has a right of decision on matters of conservation concerning planning matters. The European Commission found differently to Duchas in the case of Doonbeg.
If one was to consider Mr. Warner's interpretation of the facts as correct, then this developer has been rewarded for desecrating this important habitat.
It is our submission that the evidence available to us and that does not include the Birdwatch Ireland evidence which Mr. Warner summarily dismisses that this site is by Dúchas's definition an Special Protection Area under the Birds Directive.
Were the Planning Authority to perform appropriate assessment rather than to rely on Mr. Warner's interpretation of the facts we believe that a different result would be forthcoming. We ask the Board to put in train the correct measures for the protection of this site
6.1 The lands are in a annual flood plain and therefore an improper place for sustainable development.
6.2 All the evidence establishes the fact that this site is a flood plain. Sustainable development is not putting others in jeopardy, which we submit this proposed development would do and therefore could not be considered proper planning and development of the area.
6.3 While it is unnecessary here to discuss climate change, there is no doubt that throughout Ireland flooding is an increasing problem and that one of the accepted causes is building on flood plains. Without these areas to attenuate the peak flooding, the actual rise of the river in a flood event will be higher because of displacement caused by developments located on these flood plains. While it may have no "net" impact, the effective filling and paving of such an extensive site must show a substantial lose in the initial flood attenuation vales of the site and so further contribute to a rise in the initial peak values of the floods downriver.
7.1 Sewage
7.2 There is no evidence that the sewage from this development will be disposed of in accordance with the Urban Waste Water Directive and the precautionary principle. Lough Derg has a serious problem should the waste water from this development not be treated to tertiary standards i.e. full phosphorus removal it will add to the deterioration of the River Shannon and in particular Lough Derg.
We submit that the recommendations of Ms. Kelemen were not forwarded to the Planning Authority and consequently they are not in the conditions. She was particularly concerned with the light pollution from the tree story blocks of flats rather than the street lighting.
We also submit that it is not possible for the Board to grant permission for this development without the appropriate assessment, An Environmental Impact Statement being submitted and an assessment under the EIA Directives being carried out.
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