An Bord Pleanála
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- Mr. Hayden for Ryanair
Mr. Harley(He summarised the main points of a written statement (C C-04/05/07) For the Portmarnock community this was a serious issue, and they believed their well being was seriously threatened by the proposed development. While they did not want this development, they also maintained that it was not good for common good or for the national interest. There was no gain to the community or to the nation. One could not have sustainable development unless it was value for money. CBA was not a waffle, but required for all projects over 30million. The preliminary study carried out by Aviation Regulator found a loss of 330 million (web site). He felt in fact it should be higher. All developments under NDP needed to be subjected to CBA. Their own calculation was that without including roads outside box, or Metro or cost to the community it would be in the region of 4.5billion. The EIS did not consider alternatives outside Dublin Airport. What was considered for the runway was not adequate. The only comparison was with ‘do nothing’. The ESRI had in its report on the fourth NDP expressed concern that Dublin Rail’s transport projects had hitherto simply compared the project with do-nothing scenario, and failed to compare the effectiveness of bus against rail. This was the same negligent approach by DAA in T2 ignoring wider alternatives. There was selective application of various national policies, to justify Dublin or tripling of capacity at Dublin Airport. They could easily apply to alternative locations for airport capacity development elsewhere in or adjacent to GDA. He repeated that the sensitivity tests used for terminal location determined the outcome. The type of analysis used lacked objectivity. There was no demonstrable consideration of heritage in location. Heritage impact was not considered properly in functionality. The jobs argument was seriously flawed as explained earlier. There was serious exaggeration in numbers. The road traffic impact was seriously understated, particularly in terms of employee traffic. The employee impacts today was the same as passengers, but in future they were assuming this would disappear. The assumption that the second runway could be built without an additional terminal did not make sense. They were trying to avoid Similarly in terms of air quality the basis of analysis of the impact of air quality was the same ‘do-nothing’ scenario used elsewhere this was false and the conclusion in the EIS of no significant difference between the impacts under these scenarios was useless. He concluded by saying that the proposed development was unsustainable, and thanked the inspector for her courtesy. Mr. Hayden for Ryanair(The oral presentation diverted significantly from the written statement, CF-04/05/07) If one looked at the concept behind an oral hearing to assist the inspector and the Board, it was to identify concerns by objectors, seeking areas that require clarification and if there are issues yet to be resolved helping the parties to fill in the gaps. If you looked at the events of the past three weeks, what has happened between the opening and closing submissions and asked has there been much information to bring clarity, he submitted that there has not been. All that has happened was a process whereby it has become quite clear what is being constructed and what planning permission being sought for is a far greater process than being presented to the council. In fairness the Council seems to have come to recognition that this proposal, T2 and the development in the eastern campus, would give rise to a capacity much greater than what was envisaged in the LAP. Therefore they had imposed a condition. What is really interesting is the response of the DAA to resist the condition. This was further support of the view that what is being presented by DAA is an entirely different proposal than they have in mind. Reading paragraph 3 of the written statement he stated that Ryanair’s fundamental objection was that the basis and information upon which it has been sought and obtained has not been either provided, or is transparent or complied with the statutory obligations in relation to the obligations on the DAA to make available to the public all information documentation, assessment and reports sought to be relied upon in relation to any particular application. In particular the DAA had sought to rely upon a contention of ‘commercial sensitivity’ in relation to very fundamental and basic information relied upon by it as justifying (a) location of terminal (b) size of the terminal (c) the cost of the terminal (d) level of service required. He stated there has been innuendo throughout the hearing that Ryanair was trying to obtain schedules of Aer Lingus for some commercial advantage. As far as they were concerned Aer Lingus was so small, it was irrelevant. Although Ryanair had vast knowledge of the industry, they could not understand what DAA was trying to do with 92 000m2 building. If Ryanair with expertise could not make sense of it, it would be very difficult for anybody else including the inspector to understand what is being presented. Without expert help how could the planning authority understand the requirements of the airline industry and what level of service would be required, or what level of service this development would provide. In his view the Council were told this is what we need this for a certain number of people not because this size is needed because the number of people required that size. Fundamental mismatch between what was urged on the County Council and passed in a record time and what was before us. The hearing at least assisted in running to ground the differential between What level and size of what is being provided and what in fact … The basis for the application rested initially in the 2003 terminals and piers study, and 2005 P&W study, and fine tuned by Gateway 1, 2, and 3. The latter 3 appeared specifically in the EIS and was relied upon during the course of the application. Firstly, the analysis of location decided upon in the 2003 Terminal and Piers study was never revisited, and the various weighted options were different to the numbers presented by the DAA at the hearing. Terminal and Piers study had indicated a single building, removing the circular ramps and the energy centre. The consistency of southern location has never been explained. While it is contended that the Government policy was responsible for independent T2, as proposed T2 did not have sufficient pier capacity to deal with passenger throughput, and must therefore use pier B extensively. The cap identified in the Terminal and Piers study and LAP was 30mppa. LAP was a public document. It was not open without going through an appropriate consultation process to say a different number meant to apply. Accordingly any breach of this figure in the eastern campus was in breach and ultra vires. The conclusions set out in the LAP were drawn from the Terminal and Piers study, and P&W study. There was ambiguity used in the language used by the DAA (peak hour, busy hour used interchangeably) where a peak hour of 4200 was identified. There was no explanation of why the methodology chosen for Terminal and Piers was not adopted. The request was refused. He stressed that the inspector had the jurisdiction to direct an explanation and to furnish underlying information but refuse to do so. What was significant was that the County Council actually had the information contained in Annex 2.This was expressly confirmed at the hearing, and referred to in the LAP as the basis for which LAP both structured as a cap on the eastern campus and the identification of the development on the western campus. In their view the public process of seeking planning permission was circumvented and information available to the planning authority was relied upon but not made available to the public. This has circumvented the public process of seeking planning permission, as the information available to the planning authority was not made available to the public, it would fundamentally undermine and render void the planning permission and was unfair and in breach of constitutional justice. They suggested that DAA had publicly identified that it would not permit more than 31 take-offs per hour and that the planned 28 take-offs for T2 would leave only for T1 used by 40% of the passengers (Ryanair). They further submitted that as disclosed to the CAR the recent improvements at T1 (area 14 and pier D) would bring the capacity to 4,800 per hour (25mppa). They argued that the peak figures in T2 was achieved by grossly under utilising T1, and to justify 50m2 /person to achieve 92,000m2. They reiterated that a much smaller unit would be sufficient to provide required capacity, and that no explanation was provided for increasing the size of the terminal costing 170-200 million to 800 million. Their own interpretation was that this was to provide capacity far in excess of 50mppa in the eastern campus. They suggested independent operation of T2 can be achieved by building exactly beside T1 and providing no doors in between. They argued repeatedly that Gateway 1 and 3 were not provided in full though being referred to in the EIS. They questioned how the redacted versions of chapters 8 and 9 would be commercially sensitive. In their view the consequences of non-disclosure of the information fundamentally undermine the validity of the planning application. It would also undermined the validity of requirement for demolition of Corballis House. Referring to further piers in the north side (pier G) indicated in P&W plans (despite arguments by DAA in relation to inadequate kerbside facilities in the northern side), they reiterated that DAA were trying to ensure that they never had to go to the ‘western campus’, whereby they would loose control of terminal facilities. Also (referring to redacted version of the documents provided), they would ask how information in relation to kerbside requirements would be commercially sensitive. In relation to traffic similar points arose. The EIS, traffic flows and sensitivity analysis presupposed a state of affairs that did not exist. It did not explain how there was a modal shift to metro in areas where there was low density, it did not allow for QBC to achieve accessibility, nor did it take into account of demand tolling to manage traffic volumes, as identified in the EIS for M50. There was no explanation of significant differences between the ILTP figures (for the council), and DAA, except that numbers were manipulated to ensure there was no adequate assessment of cumulative impacts. They contended that the entire application was premature in the absence of road improvement measures (only conditioned road upgrade and QBC was on Sword road), or imposition of a graded cap on the use of T2.. no cumulative impacts of the other development in the area have been considered (deliberately). The EIS created a lunchtime peak which existed no where else in the world, and was not likely to occur in Dublin, given the direction of growth for short-haul. They submitted that the EIS was entirely defective. They submitted the capacity of T2 at 5500 passemger per hour would equate to 27mmpa, and 5500 could not be achieved without further pier construction in addition to pier E and extended pier B. No explanation was offered in relation to car parks short or long term. These needed to be part of the EIS and the planning application. Splitting a project into its parts to prevent cumulative impacts constituted project splitting. In particular, the northern runway, car parks, piers lead to failure to address cumulative impacts particularly in traffic generation. As the EIS was defective, it was not up to the Board to grant permission. Referring to a number of court cases, including Arklow Holidays vs An Board Pleánala, he argued that the EIS did not give anything approaching a description of the development proposed by P&W study, a vastly larger complex, maintaining the entire use on the Eastern campus. It was well publicised that if the entire project intended is not in the EIS then it can not be complaint with the Directive. The public have been afforded enhanced participation by the amended Directive (Article 10A). If Ryanair with expertise in the aviation industry could not make sense of what was being submitted, they could not see how the inspector or the Board would have organisational knowledge base to fill the gaps. If the Board took the view that the project splitting by subdividing a large project is permissible, then it fell foul of the rational in the decision The Commission v Ireland (1999 ECR 5901) where by the Commission successfully argued that Ireland had transposed Article 4(2) incorrectly by setting absolute threshold for Annex 2 projects, as even a small project could have significant effect on the environment. It was all the more so in this large scale project which was vastly in excess of what was considered in the EIS. Referring to other decisions ECR 5613, ECR 1-5403, ECR- 8253 they argued that definition of the project was central and that the national courts should have regard to the purpose of the general scheme of the Directive, and that this was all the more so in the context of An Board Pleánala. They asked what was the big picture. Separate applications for runway, car parks, piers constitute project splitting. There was no examination of cumulative impacts. Existing developments were not subject of the EIS. In the case of Jones v Mansfield District Council (2004) the court of appeal held tha planning authority could ot rely on conditions and undertakings as a surrogate for the EIA process. By parity of that dcision, they would argue that one could not conclude that the development is unlikely to have any greater effects then as stated in the EIS on the environment simply because the greater effects are likely to be eliminated by measures that would be carried out in pursuant to conditions. In the decision of ECRI-5975, it was determined that the screening decision by the national competent authority must contain or be accompanied by all the information that makes it possible to check that it had adequate screening. In this case though the planning authority had Annex 2, the public did not. During the hearing the planning authority had indicated that they had never really considered the size issue, and merely operated on the basis of representations made by DAA that the numbers were going to be as stated. It was not clear whether any engagement occurred between the DAA and planning authority in relation to scope or ambit of the matters to be addressed in the EIS (reference to article 5.2 of the Directive and s.135 of the PDA 2000). The hearing was told there was no written ‘scoping’ but discussions. There was no transparency, and the public was excluded from the process. The entire process was flawed. This made it null and void. It was clear from the conditions imposed that the County Council considered the EIS deficient, but had not acted rationally within its powers in accepting information as presented. (reference to a UK court case where permission was set aside on the absence of sufficient information sought be remedied by condition) In the case of Arklow Holidays judge Clarke had held that if parameters were impermissibly wide, then the public were excluded from the appropriate consultation process Referring to the role and function of the inspector and An Board Pleánala and an unreported judgement (O’Mahony v An Board Pleánala, HC, 18th Feb 2005) where the judge held that the duty to carry out assessment lied solely on the members of An Board Pleánala and not the inspector, and must be recorded as its decision. There was an obligation and duty both on the inspector and the Board to carry out their function. The inspector had he entitlement to enforce and request delivery of appropriate information to form a valid, full and considered view. As could be seen in the cases Mc Bride v Galway Corporation (1998) and ECJ decision on World Wildlife Fund v Autonome , it was now beyond doubt that Directives were directly effective. In conclusion they would argue that the planning permission ought to be refused based on a complete failure of the EIS to deal with the cumulative effect and conscious effort at project splitting to reduce cumulative impact. Availability of additional to the planning authority but not to the public made the entire process fatally flawed. The inspector failed to exercise powers to furnish the appropriate information to remedy the defects (he noted that this was not a criticism of me, but wanted to point out that I had more powers than I thought I had). The Council had acknowledged the deficiency in the EIS and sought to remedy the defects by conditioning which was an impermissible act. He thanked the inspector for her patience, and courtesy in a difficult situation. The closing submission of An Taisce was read by Mr. Sweetman on behalf of Mr. Lumley, who could not be at the hearing ( BX-04/05/07) The submission was grouped under three headings, namely, National Law, SEA Directive and EIA Directive. The public notice did not comply with Article 22 (1) of Planning and Development Regulations, 2001, with regard to the area of land to which the application related. Additional work in relation to removal of hard /paved surfaces, new and improved road access, waste treatment storage and pumping facilities have not been identified The application should have been declared invalid by FCC and the Board did not have legal entitlement to respectively validate the application by way of revised public notice. The Board is asked to dismiss the application. The FCC failed to resolve the legal compliance of the LAP because of the inadequacy of the SEA accompanying it, particularly in relation to evaluation of information on Climate Change as required under article 5 of the Directive. If the council claim to have carried out a compliant SEA as they claimed at the hearing, they should have been actively monitoring the LAP area particularly in relation to human health and climate as required by Article 10. The Council failed to provide evidence of the active monitoring The evidence and the response has failed to resolve the deficiency of information supplied by the developer under Article 5 and Annex 4 of the EIA Directive. The assessment carried out by FCC does not comply with Article 3 of the Directive to address European Court judgements or European Commission or Irish Government Guidelines on EIA Directive implementation, in particular to roads and transportation including impact of road works outside the application site, identification of contaminated soils on site and appropriate remediation, water supply capacity and waste water instalment methodology, location and disposal, assessment of climatic impacts including failure to quantify by CO2 equivalent tonnage and current emission from land based transport and aviation On this basis it is submitted that An Board Pleánala has sufficient grounds to refuse permission as the level of information deficiency is such that it renders environmental impact assessment in accordance with article 3 of the Directive to be impossible. The information submitted during the hearing is insufficient to allow an adequate EIA under Article 3 of the Directive, and consequently insufficient to allow conditions or mitigation measures to be attached. Directory: news news -> Nonprofit grant application news -> Bulletin 4 Monday July 8, 2002 Backgammon news -> Last year four of the best Afrikaans Christian singers joined forces to tour Down Under with the production ‘Manne wat Glo’ news -> Management and Marketing news -> World Computer-Chess Championship news -> World Computer-Chess Championship news -> World Computer-Chess Championship Download 0.92 Mb. Share with your friends:
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