THE Constitution, in the section outlining the fundamental rights of every citizen in Ireland, says that the courts, and all other bodies or persons making decisions that affect you, must treat you fairly.
As a community bound by the processes and decisions of the almighty An Bord Pleanála, we are digging deep to maintain belief in the application of the principle of fair treatment, given the news of its incredible fourth deferral of a decision on Indaver’s third attempt to build a large commercial incinerator in Cork Harbour, leaving its statutory deadline of July 12, 2016, abandoned in the dust some eight months back.
The prospect of a 240,000-tonne incinerator is one that clearly affects the Cork Harbour community, which has come together for the past 16 years to fight this proposal.
An Bord Pleanála, the body making the decision that affects us, is bound to treat us fairly.
We are hardened hats who engage repeatedly in good faith, but know from experience that fairness doesn’t come without a fight. We rise again and again to the challenge of raising funds, participating in lengthy oral hearings, engaging expert witnesses and legal representatives to deal with the complexities of the process and to take on the teams that the applicants employ. We struggled through High Court and European Court challenges while juggling the ordinary lives we strive to live. Dinner, on many an evening, had to be a takeaway.
There is little doubt among us that had the material contained in the application submitted to An Bord Pleanála in January 2016 and examined at a 17-day oral hearing in spring 2016 been robust enough to merit approval, it would at this stage be approved. That’s fair enough.
That the same standards don’t apply to refusal of permission is the latest in a long series of inequalities embedded by design or otherwise in the strategic infrastructure development application process. That’s not good enough.
This application process is a child of the Planning and Development (Strategic Infrastructure) Act 2006, designed to route large-scale developments of an infrastructural nature past county council approval and straight to An Bord Pleanála, on the basis that a large number of those would end up there anyway.
Core to this act is the objective “to provide, in the interests of the common good” — it is failing miserably.
In place of “the common good” stands a developer-led process with a fundamental shift away from the community it affects, and towards the developer. This saw Indaver open pre-planning consultations with An Bord Pleanála in August 2012, following the refusal of planning in 2011, but not lodge the eventual application for three-and-a-half years, until January 2016.
The contrast with the strict six weeks allowed to the public to analyse the complex and enormous application, with a full oral hearing just weeks later, could not be more stark, or less fair.
A process that grants an undefined period of time to the applicant, a rushed period to the public, as much time that it needs to itself, then more time to the applicant, is a weighted process, not a fair process.
It is now 16 torturous years since Indaver first proposed to build on the site purchased from Irish Steel in its dying days. In the intervening years, little has changed in terms of the proposed development, refused in 2011 on various grounds including flooding and coastal erosion.
Everything has changed, however, in the area surrounding the site.
The National Maritime College, the IMERC research campus, the development of Spike Island as a key tourist attraction, the development of Fort Camden, and the expansion and consolidation of the Irish naval headquarters at Haulbowline have seen the area develop into a hub of education, research, and tourism, underlined by three Cork Harbour masterplans and backed by Government investment.
This must be allowed to flourish and guarantee Cork Harbour the balance it deserves going forward, without removing job creation from the agenda.
The latest deferral is an infuriating kick in the teeth for the community and for the Cork Harbour area. Indaver has had every chance to get its homework right, failed and yet is still being spoon fed instead of being sent home.
But the real questions on everybody’s lips is why?
- Why is An Bord Pleanála giving Indaver the opportunity to further its case, more than a year after the application was submitted, 10 months after the oral hearing closed, and eight months after the statutory decision deadline of July 12?
- Why has An Bord Pleanála not returned a decision when the Department of Defence outlined at the oral hearing that the facility would have strategic implications for the State, that it would “create a flight safety hazard to Irish Air Corps helicopter operations”, and would “impact on the Irish Air Corps’ ability to operate helicopters into Haulbowline”?
- Why is Indaver being asked to provide further information on matters of strategic importance to the State? Experts neither in aviation nor accuracy, they have no jurisdiction in this area.
- Why is Indaver being given an opportunity to correct erroneous dioxin modelling figures exposed on the final day of the hearing of a magnitude that the hearing’s inspector, Derek Daly, said threatened the “veracity of the application” and forced him to break for legal advice?
- Why has it taken so long for the inspector’s report to go before An Bord Pleanála, when the inspector, mindful of the July 12 deadline, said at the hearing that he knew what he was writing and would have it written quickly?
- Why, when there are clear grounds for a refusal, but not for a grant of permission, has An Bord Pleanála failed to make a call?
A weighted process that throws up no end of questions and delays giving an answer doesn’t tick the fairness box adequately for those of us affected.
As a community, we must have faith in the Almighty Bord. But we know we must continue to fight our own battles.