Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697750685445.pdf (Ireland)
Westmeath County Council Statement to the Joint Committee on Public Petitions Petition No.

P0009/21: Unauthorised Development Petition No.

P00023-21: Unauthorised Development on the River Shannon By way of introduction, my name is Barry Kehoe and I am Director of Services for Transportation, Planning and Economic Development at Westmeath County Council.
I am accompanied here today by Mr. Cathaldus Hartin, Senior Planner with responsibility for delivering the daily planning functions of the Local Authority.

I welcome the opportunity to address the Joint Committee on Public Petitions and to provide assistance on matters related to the above petitions.

In this regard it should be noted that the Council has engaged extensively with respect to all developments to which the petitions relate.
Such engagement constitutes prolonged enforcement and associated legal actions and in this regard a brief summary of the history associated with the sites is set out in Appendix 1.

This is included for the record but does not form part of the Council’s Statement to the Committee today.
Westmeath County Council has been engaged in planning enforcement activities in this area for many years and it is acknowledged that there are several developments on and adjacent to the lakes and the River Shannon that do not have the benefit of planning permission.

In some cases, the development in question pre-dates the Planning Act of 1963 and in other cases, development took place on an incremental basis over the years without recourse to the Planning Authority.
Other development may have been undertaken in blatant disregard to planning laws and in this regard it Page 1 of 7 should be noted that the Council remains actively engaged in enforcement proceedings in suspected cases of unauthorised development, save for circumstances in which the statute of limitations applies.

The Council monitored the hearing of the Committee held on 9 December 2021 and welcomes this opportunity to give the Council’s perspective on the general planning issues raised.
By way of opening, it is considered that an Oireachtas Committee is not an appropriate forum to ventilate legal arguments on particular cases, which have already been the subject to court hearings and may be subject to ongoing legal action now or in the future.

Furthermore, this is a public meeting, none of the affected parties are present nor represented and the Council does not benefit from the protections of privilege that is in place for Members of the Oireachtas.
It has been noted that Tidebrook Ltd, to which one petitioner would appear to be associated, is listed in the Legal Diary as having an ongoing High Court action against Portaneena Marina Ltd., which is the subject of the petition.

Rather than discussing the individual cases, I would refer you to the factual position from a Council perspective, which is set out in the Appendix to this statement.
General Planning Enforcement Issues Having regard to the general issues raised at the last meeting of the Committee, the Council would comment as follows: 1.

While the local authority is charged with the implementation of the Planning Acts, including planning enforcement, it is important to note that the Council is not all powerful in this respect.
The successful implementation of the planning system requires the co- operation of a large number of stakeholders, including the Council but also including landowners, developers, business people, the courts, Government Departments, state and semi-state agencies, local communities, etc.

etc.

It is the case that the Council has, on many occasions, prosecuted individuals and companies to the full extent permitted under the law and has nonetheless failed to achieve planning compliance.
Page 2 of 7 While the legislation provides for the Council to take direct action, this is not always practical or reasonable.

The process associated with securing these orders can be lengthy, costly and carry significant risk for the Council.

In this context, the Council must, in all matters, be mindful of consequences associated with interfering with citizens’ rights, property rights, proportionality and legal and financial risk.

2.
2.

We recognise the concerns expressed by the petitioners in respect of the current legislative provisions in this area.

Planning legislation has evolved significantly since the introduction of the Planning and Development Act 2000, undergoing extensive and incremental amendment.
Significant challenges have been presented in terms of alignment between National and European legislative frameworks as evidenced in the increasing rate of challenge to planning decisions, many of which are based on environmental matters.

As such, the frameworks within which the Council operate are complex and subject to legitimate challenge.

In this regard, the Council welcomes a recent initiative by the DHLGH to carry out a full review of the Planning Act.
A lacuna exists in our planning legislation in that it is not possible to regularise development in instances where an EIAR or NIS is required as part of an application for retention permission.

Previously, a mechanism existed under the Substitute Consent process, as set out under Part XA of the Planning Acts, which allowed parties to apply to An Bord Pleanála for permission to regularise permission for certain developments considered to be non-compliant with provisions of EU law.
However, following the Supreme Court decision of 2020 in the matter, certain provisions of this ‘Substitute Consent’ legislation were struck down regarding the requirement to demonstrate “exceptional circumstances” for regularisation.

The decision also highlighted the requirement that members of the public should be able to participate in the process from the initial stage.
Consequently, the conditions under which Substitute Consent can be availed of are extremely limited and apply in exceptional circumstances only, as must be determined by An Bord Pleanála.

Page 3 of 7 It should be noted that the removal of development in such circumstances can have further unintended and unwanted negative environmental impacts.

3.
3.

It is the case that a conviction for contravening the Planning Acts constitutes a Criminal offence and as such, there is a significant burden of proof attaching to the prosecuting authority.

This burden makes planning enforcement a much slower and more complex process than is realised by some observers and leads to delays that are very frustrating for impacted third parties.

It is also the case that the defendants in such cases often mount vigorous defences, due to the seriousness of the charge.
In addition, some courts can be reluctant to convict, having taken all of the circumstances into account.

4.

As with all matters, the Council must make decisions on the action that is appropriate in any case based on a careful assessment of the issue, its local and wider impact and bearing in mind the human and financial resources available to the Council, as well as the risk in terms of legal and other costs.
Further to the above and to conclude, Westmeath County Council is actively engaged and committed to the enforcement of the Planning Acts, as determined by the Oireachtas and is actively engaging in the legislative review that is underway under the office of the Attorney General and the Department of Housing, Local Government and Heritage.

_________________ Barry Kehoe Director of Services 31 January 2022 Page 4 of 7 Appendix 1.
Portaneena Marina Westmeath County Council received a planning complaint in March 2012, assigned case file number 12040, following which enforcement action was initiated against a portion of the development, consisting of a number of floating jetties.

Following site inspections, Warning Letters were issued in May 2012 followed by Enforcement Notices in January 2013.
The Portaneena Marina Company in response claimed to have commenced development in the late 1950s - and has since carried out a range of incremental development over a long period of time.

The Council sought to have the development regularised from a planning perspective and held detailed discussions with the owners with a view to resolving the issue.

To this end pre planning meetings were held with a view to informing a planning application for retention.
The applicants produced environmental reports including an Appropriate Assessment & aerial photography in support of their assertion that development works were either Pre 1963 or Pre 2006 and that no environmental damage had been caused to designated SAC/SPA sites.

The Council formed the view that the development may give rise to deterioration of water quality and disturbance to habitats & wildlife and directed that the owner apply to An Bord Pleanala for subsequent consent.
This course of action was not followed and consequently the Council issued legal proceedings for non- compliance with the conditions of the Enforcement Notice.

This legal action, following numerous adjournments actively sought by the defendants, was finally heard in the Athlone District Court in 31st May 2016 where the case was dismissed by the District Court Judge.
Page 5 of 7 At this point in time, the existing development is in place more than seven years and the Council is in receipt of legal advice to the effect that it is precluded from taking any further planning enforcement action.

However, should the Council become aware of further development on the site without the benefit of planning permission, such development shall be investigated and if necessary, enforcement action will be taken.

2.
2.

Glasson Golf and Country Club (renamed Glasson Lakehouse) The NPWS lodged a formal complaint to the Council on the 8th August 2017 concerning alleged unauthorised development within Lough Ree SAC & SPA near Glasson.

The identified works comprised dredging of the lake bed, wetland infilling, installation of marker poles and the replacement of approximately 60m of existing boardwalk and extension by approx.

60m with a new floating boardwalk.

Case file 17061 was assigned to this complaint.


A site inspection was undertaken on the 9th August 2017 and Warning Letters issued on the 21st August 2017.

The owner committed to commission a NIS (Natura Impact Statement) and this report was subsequently submitted to the Planning Authority on the 3rd November 2017.

The report indicated that any impact on designated habitats was temporary in nature and mostly in the form of disturbance to the lake bed with no resulting loss of habitats within the lake.
The Council engaged the services of their own Ecologist to assess the report submitted by the owner.

Having considered this report, the Planning Authority was not satisfied that it had been determined that it was beyond doubt that an impact on the SAC/SPA had not occurred as a result of the development.
Notwithstanding this, it was considered that the works in question required planning permission and the Planning Authority recommended the removal of the floating pontoon/docks & piles and called for the restoration of reed beds.

The Council initiated legal enforcement action in February 2018.
Page 6 of 7 A follow up ecological report was submitted by the owner in September 2018 recommending that no remedial works be undertaken on the basis that any remedial works had the potential to cause further damage and disturbance to the lake bed.

The case was ultimately heard in Athlone District Court in 25th September 2019 following numerous adjournments sought by the defendants.
The Judge heard from both sides and ultimately decided to strike out the summons against the defendants on the basis that the works carried out were in his estimation minimal and a commitment by the owners that they would proceed in good faith to regularise the planning status of the unauthorised development.

Costs were recovered by Westmeath County Council.


A change of beneficial ownership of the adjoining associated lands has taken place and the lands are the subject of a current planning application, which has not been determined.

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