Friends' Work

// Appeal against Explosive factory Killydysert

Appeal Against the Notification of Intention to Grant Planning Permission


An Board Pleanala Reference: PL 03 123045

Local Authority: Clare County Council

Local Authority Reference No.: P99/2448

Date of Decision: 22 December, 2001

Development: To construct facilities and infrastructure for the importation, manufacturing, storage, distribution and exportation of explosive materials at Cahercon, Kildysart, County Clare.

The Secretary,

An Board Pleanala,

Blocks 3 and 4,

Irish Life Building,

Lower Abbey Street,

Dublin 1,

22 January, 2001


Appeal Against the Notification of Intention to Grant Planning Permission


An Board Pleanala Reference: PL 03 123045

Local Authority: Clare County Council

Local Authority Reference No.: P99/2448

Date of Decision: 22 December, 2001

Development: To construct facilities and infrastructure for the importation, manufacturing, storage, distribution and exportation of explosive materials at Cahercon, Kildysart, County Clare.


Dear Sir;


We are instructed by our clients, Friends of the Irish Environment, to Appeal the above decision. The following are the grounds of the appeal:


1. Inadequate detail of development at Foreshore

2. Failure of the local authority to provide to the public information relating to unauthorized site development work and to require approval for retention of site development work [Invalid Felling License]

3. Failure to ensure implementation of assent procedures under Section 7 of the 1875 Explosives Act

4. Requirements under S.I. 476 of 2000 [Seveso Directive]

5. Failure under EIA Directive & Habitats Directive to assess potential impacts including nitrate pollution

6. Conclusion




Introduction


The subject of this appeal is an unusual proposal which has given rise to a commensurate amount of concern to the residents of the area. These residents approached Friends of the Irish Environment with a request to assist them in obtaining information about the development which they had been unable to obtain and which they felt was critical for any assessment of the environmental impact of the manufacturing and storage of explosives.


At least seven separate legislative requirements govern the development consent for this proposal. While we would not for a moment presume to approach the level of legal experience available to the Board, we might respectfully identify certain issues arising for further consideration.


The first is the 1875 Explosives Act, a surprisingly enlightened piece of legislation, and specifically the requirement of Section 7 of that Act for the local authority to hold a public hearing before giving assent to the construction of manufacturing and storage of explosive at a specific site. The Act further governs the Department of Justice in the requirements it makes of the local authority and your Board for the restricting of certain information and for the obligation to make certain information available to the public without a request and to engage in a consultation process with other statutory bodies. This Act remains except where it is specifically modified by Statutory Instrument S.I. No. 476 which is in addition to and not in substitution for the 1875 legislation [S.I. 476, S. 7 (4) (b)].


The second legislation that governs the development of the proposed facility is Statutory Instrument No. 476 of 2000 which implemented the Seveso Directive II on 21 December, 2001, the day before the decision by the local authority on 22 December, 2000.


The third legislative requirement is the Environmental Impact Assessment Directive through its implementation in Irish law and the Environmental Impact Statement presented to the decision maker pursuant to this Directive.


The fourth set of legislative requirements are the Foreshore Acts, in what they govern and in the interaction of any such proposals on the developments within the jurisdiction of the planning authority.


The fifth legislative requirement is the Forestry Act, 1946. The license issued for the felling of trees in preparation of the site was invalid and this unauthorized site development work was not addressed by the planning authority.


The sixth legislative requirement stems from the Habitats' Directive and its requirements due to the nature of the woodland as described in the nearby Special Areas of Conservation, Cahiracon Woods 001000, and the apparent inclusion of the area in Special Areas of Conservation 002048, Fergus Estuary and the Inner Shannon, North Shore [Appendix I]. In this regard, we would urge the Board to request from Duchas, the Heritage Service of the Minister for Arts, Heritage, the Gaelteachta, and the Islands, the maps for 002048 and to enquire as to the current state of the designation process of the Shannon River itself, which has been under consideration to satisfy the listing of the salmon as a protected species in the Habitats Directive, and if the site is to be designated as a Special Protection Area for Birds [SPA] under the Birds Directive in the forthcoming additional list. Even aquatic designations now include the shoreline, gravel bed, reed beds, etc., and reinforce the warning we quote below from the Site Synopsis of the Fergus Estuary and Inner Shannon, North Shore about the threat from industrial activity.


The final legislative requirement is, naturally, the Planning Acts, consequent upon which the Board is asked to determine if the proposal is in accordance with the proper planning and development of the area.


Both the development consent procedure and the Environmental Impact Statement in this case show fundamental inadequacies and contain procedural and substantial omissions of matters which should have been openly considered during the development consent process.


The many concerns upon which the residents based their representations to your Board are well laid out in the appeals already before it. Our concerns are that the information necessary to protect the environment was not fully presented - even given security concerns - or properly assessed and that the requirement of the Explosives Acts 1875 with the right to a public hearing BEFORE assent was given for the construction of a factory at this site was not observed.


We detail below matters both of procedures and of potential impacts on the environment which we believe fall so far short of the required standards of assessment that we respectfully request your Board to refuse the application before it and return the matter to the local authority for a new Environmental Impact Statement and a new Assessment after a public hearing and after the consultation required under law.



1. Foreshore Licensing

We have unable to determine the extent of the development at the foreshore and its impact on the environment.


The Department of the Marine and Natural Resources in a reply on 11 December, 2000 to our request for a copy of the file in fact were unwilling to confirm or deny the existence of any records relating to any possible application on the grounds that such information could be refused as it would "prejudice or impure lawful methods, systems, plans, or procedures for ensuring the safety of the public".


While the applicant appears to intend to include development to and beyond the foreshore, the analysis of the impact on the environment omits any such assessment in the Section entitled "Fauna - Marine Habitat". Under "Impact", this states that the impact on estuarine and benthic species can be considered as minor "particularly so because the development will not extend on to the shore below the high water mark." In "Mitigation", we are assured that "As the development will be above the high water mark, mitigation in relation to the intertiday flora and fauna is not relevant."


Yet the EIS 1.10 (b) speaks of "water transport and pier operations" to and from the Shannon Explosives facility. The development consent was given without the public and interested parties being given the opportunity to consider the impact on this aspect of the proposal and the interaction between the land and sea based development.


We suggest below that this aspect of the development should be governed by the 1875 Explosives Act as areas of transport are excluded from the Seveso Directive and S.I. 476 of 2000.


2. Failure of the local authority to provide to the public information relating to unauthorized site development work and to require approval for retention of site development work. [Invalid Felling License]


Through a request to the Department of Marine and Natural Resources under the relevant Access to Information on the Environment and the Freedom of Information Act, FIE examined the history of the site. [Forest Service File Number FL 2948]


The site was in part a mature forest which extends to the designated woods of Cahercon Woods [Appendix I] and in part an immature plantation of Douglas Fir and Sitka spruce. According to the documents made available to us, the applicant gave notice of intent to fell 2469 Douglas Firs of 20 years age which he had already felled without license to prepare the site for the proposed factory. We base this statement on the following documents:


12 February 2000

The Felling Notice of 12/02/00 by Shannon Explosives states intent to fell 2469 Douglas Fir at 20 years of age. Reason for felling is given to the Forest Inspector as "site of proposed new factory". Applicant states he has no other lands and he is not willing to replant. [Questions 8 and 9, felling Notice of 12 February, 2000.]


22 February, 2000

The Minister refused the Felling License and issued a Prohibatory Order to prevent the felling of the trees at this location until the site has been inspected and the local authority consulted. The Planning Authority failed to place on the public file the Prohibitory Notice preventing felling at the site sent to it by the Forest Service on 22 February, 2000, or the letter requesting comment sent on 8 March, 2000, as far as were able to obtain on either of our file examinations.


14 April, 2000

The Forest Service Inspector's report [Appendix II, Forest Inspector's Report of 14 April, 2000] notes that that on the occasion of his inspection on 22 March, 2000, the "area has already been clear felled and the stumps dozed in preparation for the construction of a factory." Nonetheless, the Inspector granted a license on an agreement to replant elsewhere, a provision that the applicant appears to be unable to fulfil, given the applicant's statement in the Felling Notice that he has no other lands [Section 7] and that he was not willing to replant elsewhere [Section 8]. To decide to issue a license in these circumstances is a decision no reasonable person could make.


Further, the license was only for felling 1000 Douglas Fir and 600 Sitka Spruce aged 40 years. We would question how the Inspector could have known better than the applicant - who had claimed intention to fell 2460 20 year old trees - how many trees had been present at the site and the age of those trees, given that the trees were felled before the Inspector's visit and that his report states the stumps had also been bulldozed by then.


We would suggest that both the applicant's Felling Notice and the Department's Felling License issued were in themselves inaccurate in that they did not truly represent the number, species and age of the trees involved.


The application gives the area felled as 4.2 hectares. Conifers are planted at the rate of 2,500 per hectare. Given thinning and loss one would expect a coup of 4,000 conifers to have been taken.


While a substantial plantation of fir and spruce was indeed felled, according to local knowledge also felled were ash, oak, hazel and beech in great quantity during this unlicensed and unauthorized site preparation. Residents were offered firewood for the cutting from this unauthorized felling and site development. This included some of the woodland which once formed the Cahercon Estate. [Appendix I, Site Synopsis. Please note that we do not suggest the site was within the boundaries of this area designated for nature protection.] Those mature broadleaf trees which were too large to be felled by chainsaws were later removed by a mechanical track machine. Our site investigation on 21 January, 2001, identified one oak stump of 108 years and an ash of 56 years.


What is the relevance to the planning process of the information revealed in Forest Service file FL 2948?


Initially, Condition 16 of the Notification of a Decision to Grant Planning Permission of 22 December, 2000 requires the written notification to the National Monuments Service of "their intention to carry out any site development works". We would suggest that this should include Duchas, the Minister's Heritage Service, in relation to the felling of the broadleaves and the protection of the Shannon Special Areas of Conservation 002048. We would ask: does this condition ignore the site development work that has taken place?


Further, the Forest Service Inspector states in his report of 14 April 2000 that the applicant informed him that the work took place to prepare the site for a factory [Appendix II, Forest Inspector's Report]. The felling of these trees was site preparation work and was claimed by the applicant as site preparation work. It falls under the planning acts, through which the applicant should have sought permission for retention of site development work and paid the appropriate fee.


We requested the local authority in our submission of 18 December, 2000 [Appendix III, submission to the Planning Authority] to require the applicant to seek permission to retain the site development works. This was not done.


The EIS states on page 10 [1.5 Site Description and History] that the trees on this site were felled under license. No such license had been issued at the time of the submission of the EIS in April, 2000. A license for felling 1600 conifers is dated 5 May, 2000, but this license can not have given any authority to fell trees at this site because the license only confers these powers for a period of two years commencing on the date of issue, 5 May, 2000. We know from the Inspector's Report that the trees had been felled previous to March 14, 2000.


We request the Board to use its powers to determine if the facts are as we have stated and that unauthorized and unlicensed site preparation took place at this location which has not been properly addressed by the regulatory framework and for which the appropriate fee has not been paid.


3. Assent by the local authority under Section 7 of the 1875 Explosives Act

The relevant provision of the 1875 Act was drawn to the applicant's attention when he received his Draft License. The applicant was told by the Department of Justice on 14 September, 1999: "You are now authorized to approach the local authority for their assent to the project in accordance with Section 7 of the Explosives Act 1875." [Appendix IV].


The Local Authority, upon application being made to them for their assent to the "establishment of a new factory or magazine on the proposed site" shall cause notice to be published by the applicant "of the time and place where they will be prepared to hear the applicant, and any person objecting to such establishment."


No one is arguing that the applicant must do so. The argument is simply a matter of when. The Minister for Justice has determined that the requirements of the 1875 Act can be dealt with after the planning process has determined if the factory can be located at Kildysert and we have asked him for an explanation of his advice [Appendix V].


But the assent process, to be meaningful, can not be after a decision of the planning Appeals Board to permit development unless it considers and is competent to consider material unavailable to the Board.


For example, if instead of the local authority that the applicant was instructed to approach a technical board of some kind capable of taking part in the licensing process then the sequence of assents and/or permission would not matter. The analogy the Minister might suggest would be with the EPA Licensing Procedures.


In that case, the planning permission would, like all other planning permission, reply on compliance with such and such a licensing procedure and the two processes could come in either order.


But this is not the case under this legislation. The local authority is precluded from considering technical matters. How could it when the same letter which confirms the Draft License instructs the applicant not to release to the local authority the information upon which the Draft License was issued?


The purpose of approaching the local authority is to seek from them assent to locate such a factory, whatever it contains, at the proposed location. The enlightened Section 7 of the Explosives Acts is to ensure that the local resident have the opportunity to be heard BEFORE assent is given and before the appropriate conditions to be attached to the construction of a factory at this location are determined.


All the local authority can consider are matters of proper planning. If the Board considers the matter on an Appeal and determines that this is such a proper location, can the Council then refuse the same proposal as specified and approved by the Board?


The Minister's argument [Appendix V outlines the argument in our request for clarification from the Department of Justice] that the assent process is a separate legal process which can take place after the location of the factory has been approved by the Appeals Board can only stand up if the assent process considers matters not considered by the Board and so has some grounds for a decision.


But surely the local authority, confronted with an application for the construction of a factory which has been approved by your Board, not only has no grounds but has no jurisdiction? If your Board refuses a development the applicant is free to resubmit exactly the same proposal to the local authority and the local authority is free to give permission is if so determines. However, if the Board has agreed to the location of a development, can there then be a valid application to a local authority for development? Surely the permission is there, subject only to a Judicial Review?


The provisions of the 1875 Act refer to the proper planning and development of an area, not a technical assessment of a licensing procedure.


We respectfully suggest that the local authority should have held the hearing specified in the Act, and because it did not do so the Board should overturn their decision in order that the applicant may comply with the legislation and the local residents be given the opportunity through "advertisement in some newspapers circulating in the area" to exercise their rights to be heard before any assent is given for this proposal at this location.


4. Requirements under S.I. 476 [Seveso Directive]

We would not be competent to provide the Board with any comprehensive assessment of this legislation, which while implemented on 21 December 2000, was only available from the Government Publications Office on Monday, 15 January, 2001. We note the reference to the Directive in the Clare County Development Plan [Section 2.12] and the correspondence between the applicant and the authority, in which the applicant denies that the Directive applies [Letters of 27 September and 14 November, 2000].


We would however highlight the central importance of the External Emergency Plan and the Safety Plan for consideration by the public as part of the development consent procedure, not as a condition precedent. Condition 18 may well require a Safety Report, but because this was not available during the public consultation process the procedure used had less public consultation than legislation framed more than 125 years ago.


We would also ask that the Board examine 27(2)e of the Directive with its mandatory obligation to consult with the public on the External Emergency plan - which was not done in this case - with the transposition in S.I. 476 17(2)(e) requiring consultation with the public "as appears to the local competent authority to be appropriate to consult with in the circumstances."


We would also draw the Board's attention to the exclusion from S.I. 476 of the piers and transport element:


4 (2) (c) (i) - "These regulations shall not apply to… the occurrence outside an establishment or the transport of dangerous substances by road, rail, internal waterways, sea, or air". We would suggest that this leaves untouched the provisions of Section 34 of the Explosive Substances Act 1875 in relation to by-laws and the Harbour Authority and the opportunity of the public to comment on same, which we failed to find on the planning file. We would also suggest that the matter of emergency access from the main public road to the site for fire vehicles would not permit the passing of other emergency vehicles, such as ambulances.


Finally, if such transport related matters that fall within the exclusion zone of 670 meters must rely on 1875 legislation, the Board might have regard to the advance in transportation since that date. We refer specifically to the disturbing letter from the Airline Pilot Association to the Planning Authority in relation to the airspace above the site, which is regularly used by both training and commercial flights and where the process of consultation appears to be lacking. [Appendix VI: letter of 31 October, 2000. We note from your weekly lists that an appeal has been lodged by the same party and include this document in order that the matter still remain before the Board should that appeal be withdrawn.]





5. Failure under EIA Directive & Habitats Directive to assess potential impacts nitrate Pollution


The standard and scope of the EIS is not sufficient to enable an assessment of the possible environmental impacts of the proposal.


We would cite the failure to address the possibility of nitrate pollution.


We draw the Board's attention to the sensitivity of the area as demonstrated by the warning in the Special Area of Conservation Site Synopsis for the Shannon North Shore, the extend of which we wouild suggest includes part of the proposed site:


"The most im- Mediate threat to the site is from industrial pollution and any proposed development or reclamation plans in theory. Close monitoring of waste disposal activities are a must along with strict planning controls, if the present high scientific value of the site is to be maintained." [Appendix I]


Nitrate pollution is allegedly an established concern at Ireland's other explosives' factory in Enfield, County Kildare, where the extent of the leachate from the settling ponds resulted in environmental complaints. The Technical Supporting Material required in an EIS [4.2] is given as Appendix I [Appendix IV of this appeal], and Appendix I consists solely of a letter from the Department of Justice restricting information that is to be made available to the Planning Authority.


EIS 1.14 Industrial Waste does not address the issue of nitrate waste. We note also the presence of waste recovery activity at this location which requires a license. Condition 3 appears not to address this issue, as a planning condition should not seek to authorize activity which is unlicensed without requiring the applicant to license such works.


EIS 3.6 Potential Danger (a) "Water Pollution" does not address the issue of nitrate pollution.


EIS 3.6 (n) Ground/Soil Pollution states "There is no hazardous waste generation on site".


We would request the Board to exercise its powers under S.I. 476's Section 29 and request the Department of Justice to supply it with the consultants reports we understand were prepared in 1998 and 1999 on the alleged incidence of nitrate pollution at Enfield by Irish Explosives Limited.


We would suggest that any operation whose manufacturing requires the extensive use of nitrates must address the issue of leachate pools under the EIA Directive Article 3 which requires that assessment will "identify, describe, and assess in an appropriate manner the direct and indirect effects of a project on soil and water."


This requirement is strengthen by the proximity of the Shannon, which is being designated for nature protection under the Habitats Directive. This Directive carries with it a separate obligation to fully assess the environmental impacts of any proposals through the requirements of Article 6. This requires member States to "take appropriate steps to avoid, in the special areas of Conservation, the deterioration of natural habitats and the habitats of species".


These appropriate steps mean that "any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with others plans or projects, shall be subject to an appropriate assessment of its implications for the site."


We note that the EIS specifically flags the danger of "toxics or hazardous emission, either liquid or gaseous, would also be problematic" because of the sensitivity of the site [Fauna Impact Study, EIS Appendix 4, page 6]. The EIS is not correct when it continues "However, in the case of the present development these are not relevant as only one domestic w.c. and a small canteen will generate waste from the area."


We note also that the EIS appears not to address the issue of otters at the site in the Fauna Impact Study prepared for the developer [EIS Appendix 4]. The presence of otters is suggested by the Planning Authority when it imposed Condition 3 - "No ship hulk shall be removed during the otter season". Otters are protected under the Habitats Directive. What is the extent of otters at this location?


We would respectfully submit that insufficient information was made available by the applicant to satisfy the requirements under these Directives for such an assessment to take place.



6. Conclusion

The unusual character of the proposed development is reflected in an extensive set of legislative requirements, technical safety considerations, and development consent procedures that appear not to have been satisfactorily and openly dealt with at the decision making stage. The truth of the matter is that in spite of an EIS and our own subsequent substantial investigations, we can not honestly advise our clients as to the nature of this development or its possible impacts on the environment and their community.


The Board may, of course, require the technical information under Section 29 (2) of S.I. 476 of 2000 as it sees fit in relation to the matters we and the other appellants have raised and the concerns we voice on behalf of the local community. The Board may exercise other of its extensive powers and rights to address these issues. It may indeed call an Oral Hearing to permit the parties to address the issues that were unresolved or omitted from the local authority assent.


But surely these are matters that proceed far beyond the nature of an appeal against a decision? These are matters that challenge the very heart of the decision and all that surrounds it. And surely this is an unusual case with the potential with catastrophic consequences for the local community if not properly located, constructed, and regulated? The enlightened requirement of the 1875 Act are based on a recognition of this danger and of the ordinary public's right to be heard before consent is given for such an operation.


Even without the explosive element, the sensitivity of this area is demonstrated by the landscape protection and the warning in the Site Synopsis of the extreme care that should be taken in assessing the "im- Mediate threat from industrial pollution" and specifically the "ecological threat … from any proposed development or reclamation plans". [Appendix I]


We respectfully urge the Board to refuse the application before it and return the matter to the local authority, the rightful place for the obligations under the 1875 Explosives Act, the Foreshore and Forestry Acts, the Seveso, Habitats, and EIA Directives, and S.I. 476 of 2000 to be openly and publicly considered before any development assent is given.


Yours, etc.,



Peter Sweetman and Associates,

On Behalf of Friends of the Irish Environment












APPENDIX I



Site Synopsis of


Cahercon Woods Special Areas of Conservation 001000


Fergus Estuary No. 002048













SITE SYNOPSIS



SITE NAME: CAHIRACON WOODS


SITE CODE: 001000


Cahiracon Wood is an 8 hectare Oak (Quercus) woodland situated on the northern shore of the Shannon Estuary approx. 5 km south of Kildysert in Co. Clare. This narrow fringe of woodland occurs on gently dipping slate rock which rises to dramatic vertical cliffs in the south. The acidic nature of the Brown Podzolic soils is reflected in the healthy woodland ground flora. The exposed aspect of this woodland gives rise to a stunted and slow growing form of oak.


The woodland is dominated by Oak (Quercus sp.) which forms a narrow band on the seaward side which enlarges into a substantial patch at the south end. The former part is an open wood with scattered Hazel (Corylus avellana), Holly (Ilex aquifolium) and Ash (Fraxinus excelsior) trees, amid an abundance of Great Woodrush (Luzula sylvatica).


To the south where the wood enlarges it becomes more dense with a variety of trees and a rich ground flora. At the top of the slope large Blackthorn (Prunus spinosa), Hazel (Corylus avellana) and Ash (Fraxinus excelsior) occur with wild Garlic (Alium ursinum), Wood speedwell (Veronica montana) and Ground Ivy (Glechoma hederacea). Lower down the Oak (Quercus sp.) is dominant and regenerating.


The ground flora is a heathy woodland one with Ling Heather (Calluna vulgaris), Wood Sage (Teucrium scarodania) and broad Buckler Fern (Dryopteris dilata). On the woodland margins the Great Horsetail (Equisetum telmeteia) and Pendulous Sedge (Carex pendula) are plentiful.


The steep vertical cliffs to the south of the site are home to a pair of Peregrine Falcon, a species listed in Annex I of the EU Birds Directive.


This site is of international scientific interest owing to the Annex I rating of Oak woodlands in the EU Habitats Directive along with the presence of breeding Peregrine Falcon, a species listed in Annex I of the EU Birds Directive. Although modified by felling the wood retains several interesting features of a western woodland.



23/11/1995_



SITE SYNOPSIS



SITE NAME: FERGUS ESTUARY AND INNER SHANNON, NORTH SHORE


SITE CODE: 002048



This is a very large estuarine complex consisting of the River Fergus estuary from where it becomes tidal at Clarecastle Co. Clare, to where it meets the Shannon Estuary and sweeps inland in an easterly direction as far as Limerick City. This is an extensive area of intertidal mudflats with fringing reedbeds, swamps, salt marsh and wet marsh habitats. The mudflats are generally unvegetated with a few patches of cord grass (Sparting sp) in places. Dense Stands of fringing Common Reed (Phragmites australis) are common throughout both estuaries becoming more noticable in the Shannon and in some of the more sheltered creeks of both systems. Species rich salt marsh habitat some of which are large and undisturbed are present throughout both estuaries.


The site is of international importance for wintering and migrating wildfowl. Such extensive areas of mudlfats are uncommon in Ireland and Europe. The area provides a rich source of nutrients for huge numbers of waters and wildfowl. The number of birds it supports are greater than any other site and it seems to act as a refuge from the south-Clare lakes during the autumn and winter when fishermen or wildfowlers are a disturbing factor.


Along with the ornithological interest, the site is of high botanical value with recent records of the very rare rush, the Triangular Clubrush (Scirpus triqueter) along the Shannon Estuary. Other less common species include a specialised species of salt marsh grass (Fuccinellia sp) for which the Fergus Estuary is part headquarters. The most im- Mediate threat to the site is from industrial pollution and any propsosed development or reclaimation plans in theory. Close monitoring of waste disposal activities are a must along with strict planning controls, if the present high scientific value of the site is to be maintained. The area has great potential as a source of education and as a scenic walkway during times of least disturbance to the wildfowl populations.


13 February, 1995