An Bord Pleanála
Submission be Planning authority
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- Mr. O’Donnell
Submission be Planning authorityMr. Flanagan for the planning authority had a written submission (C H-04/05/07). He would not read from it but asked that it be considered in its entirety. He would also add a few points arising from the closing submissions of the third parties particularly in relation to some case law. At the outset he asked the Board to note the range of submissions /observations by the third parties in the first instance and the wider range of issues raised in the grounds of appeal and in particular the elaboration of the issues and new issues raised during the oral hearing. There was now a substantial body of information before the Board gathered in the context of the appeal which constituted part of the information for the purposes of EIA. He noted the comprehensive contribution by the third parties to this gathering of information and dissemination. He drew attention to sections 15 and 18 of the Act and to a new element in section 143 ( 17th October 2006), which imposed an obligation on An Board Pleánala to have regard to certain policy and objectives, and stated that S.143 (1) (b) “ the national interest and any effect the performance of the Board’s functions may have on issues of strategic economic or social importance to the state “ was of particular significance in this case. The County Development Plan and LAP were entirely consistent with each other and assessment of a development plan or LAP had to be done in context (reference to an English case law). It was the position of FCC that the proper planning and sustainable development of the area overwhelmingly favored the proposed development and the policies and objectives (noted-not a single objective, but all of the objectives) enshrined in the LAP affirmed the appropriateness of the proposed development. It was not appropriate to seek to rely on a single objective. In relation to EIA he referred to the preamble of the Directive and in particular to prior assessment of likely significant effects conducted on the basis of appropriate information supplied by the developer which may be supplemented by the authorities and by the people who may be concerned by the project in question, he submitted this was precisely what was done in this case, by the amount of elaboration. He pointed out that in ‘Berkeley’ case, EIA was not done. Having regard to Article 94 of the Planning and Development Regulations, 2001 the EIS was a document provided at the start of the application process, the relationship with the mandatory information and amplification of the mandatory information. In the case of case of the ‘Glen of the Downs’ (he was involved) again the court affirmed that the EIS did not require detailed design. In the case of ‘Ipswich town’ judge O’Sullivan stated what was important was community wide effect (while there may be concern for a particular individual it was the community effect that was important). In fact one could loose the wood for the trees, if one examined all conceivable effects. In the High Court Miss Justice Finlay Geoghan (Friends of the Curragh v An Board Pleánala, Dec, 2006) separated the legal relationship between EIA and SEA. Secondly, EIA was about a planning application. He quoted from the judgement: It appears that there is nothing in the Directive which makes it clear that a planning application must address not only the impact on the environment for which planning permission is sought but also the impact on the environment of future or proposed related development for which permission is not yet sought. This gave the parameters, but that was not to say that one would be blind to cumulative effects. The term ‘project splitting’ appeared to be used in more than one context which gives rise to confusion. She (Justice Finlay Geoghan) affirmed in her decision that 2003 Directive was not of Direct effect, and the EIA directive required an environmental assessment of a project or development which is the subject matter of the planning application and not of any related projects which may be subject of future or proposed application. He referred to a further number of cases and stated that it was a function of An Board Pleánala to assess the adequacy of the EIS as part of the EIA process subject to the limited right of review by the Courts on the grounds of unreasonableness / irrationality. He repeated that EIS initiated a process of information gathering /dissemination which includes the making of submissions/ observations at first instance, the setting out of grounds of appeal in the instant case the conduct of a oral hearing in which evidence in relation to the likely effects on the environment may be heard and the seeking where deemed necessary further information by An Board Pleánala in assessing the adequacy of the EIS in the context of EIA. In relation to details to be agreed he referred to Arklow Holiday homes decision (a recent Irish case-law). Looking at details to be agreed and its compliance with EIA, it was clear that there was nothing to prevent detailes being agreed subject to effects being ventilated, considered and of course mitigation considered Referring to the decision on Boland v An Board Pleánala (J. Clarke) he stated that the test for the Board was has it imposed sufficiently detailed criteria as a result of a process involving public engagement. In his respectful submission there was very substantial amount of information to enable An Board Pleánala to consider all these maters and enable the Board to impose conditions. In response to some points raised by Mr. Hayden he would make a few observations. In his view the conditions did not identify further necessary information to consider the significance of the impact. In his view the significance of the impact had already been identified in the EIS. In relation to Protected Structure he stated that it was in the County Development Plan not the LAP that the structure was listed. Under s.57 under exceptional circumstance it could be demolished. Exceptional circumstances were accepted by Dr. O’Dwyer. In their opinion this was a development of strategic importance. One which the proper planning and sustainable development of the area favoured. The County Development Plan and LAP had affirmed its importance. A lot of planning consideration was involved in the adoption of the LAP. Compared to other LAPs this was a very detailed LAP significantly over and above the norm. There was now a substantial body of information before the Board. He noted that in relation to Condition numbers 7 and 43 there was no disagreement between the planning authority and applicant. He repeated some of the cases referred to by Mr. Hayden Berkeley case – there was no EIA Mansfield case-there was no EIA
(The planning authority handed in copies of the referred Judgements) Submission by First Party Mr. O’Donnell for the DAA was going to be brief as we had detailed examination during the hearing running in some days 12 hours a day. In the manner the inspector had conducted the hearing and the detail in which the modules were examined gave a clear indication that the inspector had a good grasp of the critical issues involved. The big picture was that the existing terminal was difficult to operate because it was beyond its capacity. All the parties had accepted that there was a need for this terminal. It was intolerable for the members of the public. There was no question that the situation was intolerable. It was critical to understand that this was a ‘national airport’ a critical piece of infrastructure operating this intolerable manner. It was also critical to understand that Dublin Airport was unique in that you had two major carriers. In developing a new terminal one operator had to move and there had to be a balancing between the two terminals These matters have been seriously considered in a series of reports. There had been many studies, he was not aware of any other case where there was so many exhaustive analysis, some as a result of change in the Board (airport Board). The impact of all these was that there has been a vast amount of information in public domain. He noted that of all the operators of the users of the airport, there was only one objector. He thought the objections from outsiders were not really about the terminal. The board should have regard to almost universal view that this is an appropriate response. In so far as the third party objector within the airport is concerned, the matters related to competition. Price or cost were not a matter for consideration under the Planning Acts He stated that the reputation of the experts relied upon the integrity of the evidence they presented. In the planning context the proposed development was consistent with all the National plans, NSS, Regional Planning Guidelines (2004-2006), County Development Plan etc. In terms of broad picture there was agreement, though there may be disagreement in detail. Economic analysis perfectly appropriate in another forum, was not a mater for this one. The project had to go through another forum such as Regulator, and those economic arguments would be appropriate for that forum. The methodology, the principles were accepted as correct, but the issue was whether the forecasting methods by DAA was appropriate. These were peer reviewed and confirmed by an independent analysis. Even if it was big, the development plan required generous spaces to be provided. This was a critical requirement. Also externally it had to be a building reflecting the importance of the national airport. This too was a critically important requirement. The proposed development complied with the broad parameters of the plan and did not contradict the same. They had accepted the condition regarding overall throughput. In respect of traffic there was again no real issue and the consensus among all the experts was that this was capable of being accommodated traffic wise. Car park while not included in the application was included in the EIS. In so far as the Government decision of may 2005, procurement procedures had to comply with European requirements. The applicant had taken air emissions seriously and had engaged its own monitoring though not required to do so, and has been able to demonstrate that the existing air quality at the airport was to a high standard. He hoped the people were assured that there would be no adverse health effects. It was fair to say that the proposed development by itself or cumulatively give rise to very little impact on Climate Change. These type of issues could only be considered and adequately addressed in an ‘international’ dimension. Evidence had been given that showed no evidence of adverse significant effect on nature. There would be significant planning gain from the proposals to separate clean and contaminated water. He agreed with the Planning Authority view regarding the Protected Structure. This was a type of development that permitted the Board to allow demolition of a Protected Structure, having regard to the various options considered (as in the case of Landsdowne Road). There was analysis of soils and no evidence of contamination was found. The act of participation of the third parties and the planning authority they have been given The level of information that has been provided in this hearing was of a scale unprecedented. The amount of copying had caused a lot of environmental damage. The third parties were not prejudiced in any way regarding information provided, they were able to construct models and make submissions. They had me their obligations. The matters to have regard to (by the inspector and the Board) were clearly outlined in section 34 (2). Validity of the documents were not challenged and had to be accepted as being valid. He agreed with planning authority that this was a project for consideration under S.143. Project splitting was examined thoroughly before. It arose from a desire to avoid an EIA that simply was not the case in here. There was no obligation to prepare a ‘statement’, an EIS was not a requirement under European law. It was a requirement under Irish law. The statement had to be judged under Irish law. The assessment had to be considered under Irish /European law, and essentially under Irish law because its implementation has not been challenged. Therefore they were the primary document. In any event it did not matter as EIA was a process. The process which we were engaged would identify any inadequacies as part of the environmental impact process, so they could be corrected. With regard to conditions he asked that the recent judgement in Arklow case be taken into consideration. The high court approved examination of the bed rock etc to be investigated as part of the condition. There was no contention of the condition. With regard to development occurring outside the lands outlined in red, he again referred to the same judgement, where same argument was unsuccessful (he was on the loosing side). The pipe was going through outside the site on lands but also on lands within the ownership of the applicant. Again in the same case, the High Court refused leave on grounds that once people were aware of the nature and extent of the development, it was acceptable. He referred to the importance of OCTB, not just ‘national’ but on ‘international’ level and the efforts in trying to protect its integrity. This had formed part of the rationale in locating the building where it is. In his view the proposed new terminal was of a scale comparable to that. It was an important piece of architecture and more importantly a critical piece of infrastructure. It was of critical importance not just to Dublin area but to the nation as a whole. It has been assessed in an exhaustive manner through this hearing but also during planning permission, and all the concerns have been addressed. He asked that permission be granted. He thanked the third parties in the manner in which they conducted themselves, their knowledge and the issues they raised. They have been extremely helpful to the first party in clarifying points that are real concern to them. The planning authority had done no favours but acted objectively. He noted the hearing was very intensive sometimes requiring 12 hour days. He thanked the inspector and her team in the manner the hearing was conducted noting that the inspector was strict but fair. Mr. Sweetman congratulated inspector for the manner in which the inspector held the hearing noting that it has been a particularly long hearing. Mr. Flanagan joined to express his thanks to the inspector and the team, this was followed by Mr. Hayden. The inspector thanked the administrative assistant and the sound engineer, and in particular the parties in the way they expressed their views and concerns. Stating that the Board would make their decision following completion of her report and recommendation, the inspector closed the hearing. 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