Judiciary putting brakes on planners

The courts will continue to play an important role as a brake on the actions of developers as shown by one Kildare farmer’s long-running legal tussles with the IDA, says Kyran Fitzgerald

Judiciary putting brakes on planners

The courts will continue to play an important role as a brake on the actions of developers as shown by one Kildare farmer’s long-running legal tussles with the IDA, says Kyran Fitzgerald

Thomas Reid is the stuff of nightmares as far as the Government and the IDA are concerned.

The job of landing the long awaited €3.5bn Intel expansion project outside Leixlip in Kildare has yet to be completed, and at this critical time, a farmer has once again emerged to launch an appeal against the decision of the local county council to grant permission for the development.

If the IDA bosses, and their political allies once thought that Mr Reid — the proud owner of a modest 18th-century house with 100 or so acres attached — could be easily bought off, well they have been forced to think again.

This farmer has had seven years to master the legal briefs in the case. As the Farming Independent reported last year, his resistance began with a series of handwritten placards condemning the would-be interlopers along the boundaries of his property, a farm that has been in the hands of his family for around a century.

In 2013, his attempt to block the acquisition of his lands by the IDA was dismissed in the High Court by Mr Justice John Hedigan, who dismissed on the grounds that a CPO should be allowed due to the national implications for the struggle to win foreign direct investment.

Mr Justice Hedigan’s decision, in turn, was overturned on appeal by the Supreme Court.

Mr Justice McKechnie concluded that the IDA acted beyond its powers under the 1986 Industrial Development Act in acquiring the property for future as opposed to immediate use and for not identifying a specific company for which the property was being acquired.

Not for the first time, the courts have acted to serve the interests of the little man in a face-off with the State.

You have got to admire Mr Reid’s dogged determination. It would have been easier for him to take the money and run. But one must also sympathise with the IDA and Government in their predicament — which ultimately is our predicament.

Intel employs 4,000 people directly in the area with thousands more in spin-off jobs. Nailing down this wafer fabrication project would anchor in Kildare the company which, 30 years ago, kicked off the real wave of tech investment in the country.

On occasions, dogged characters can end up doing us all a good turn, witness the long and ultimately successful battle of Tipperary farmer, John Hanrahan, who fought a long and ultimately successful battle against the pharmaceutical giant, Merck, from the 1980s after cattle began to fall ill and die on his farm due to contamination.

Mr Hanrahan was initially dismissed before eventually winning round the senior judges.

We have benefited greatly as a society from the drive of entrepreneurs and the efforts of far-thinking officials and politicians, but the drive to develop has its limits — no more so than on today’s climate-constrained world.

Last year, the Government pushed through new legislation to meet the challenges presented by the Supreme Court decision in Reid v IDA.

The Dáil debates on the Industrial Development Amendment Bill — since enacted — make for interesting reading.

The bill was proposed by Minister of State, Pat Breen and backed by both Fianna Fáil and Sinn Féin.

Mr Justice Garrett Simons: Gave important ruling last week.
Mr Justice Garrett Simons: Gave important ruling last week.

Limerick Sinn Féin TD, Maurice Quinlivan waxed lyrical on the contribution of the IDA to his local area.

Pat Breen contended that without added CPO powers, the IDA could ‘potentially miss out on very significant investment opportunities.’

Fianna Fáil TD for North Kildare, Frank O’Rourke, pointed to the example of the loss of the proposed €850m Apple date centre in Athenry, east Galway.

In that case, it emerged that at least one of the planning objections came from parties behind plans for a rival data centre.

This is a real phenomenon — where objectors use the planning process to tie developers up in knots.

It is also hard to sympathise with ‘nimbys’ — often recent arrivals in localities — who object to plans.

However, the planning process, when properly used, can also work to the benefit of society by putting project proposals to the test.

An Taisce has been doing so for the best part of 50 years. The pity is that so many of its objections were swept aside during the years of the ‘Celtic Tiger.’ The concern is that we are headed down that road again which is why a decision of Mr Justice Garrett Simons in the High Court could be of particular significance.

Mr Justice Simons concluded that An Bord Pleanála acted beyond its powers in granting fast track approval for a development of almost 200 homes in Barna to the west of Galway city.

The judge found against the board on two grounds. First, that the proposed development breached the population development plan for the village. Second — and more significantly — he concluded that the board ‘erred in purporting to defer completion of a site-specific flood assessment.’

He also found that the board failed to carry out a proper screening exercise for the purpose of the EU habitats directive.

The board has been under pressure to wave through plans aimed at filling some of our yawning housing deficits, but such a policy cannot be one that is pursued at all cost. Too many householders have found themselves trapped in flood zones.

Garrett Simons built up a reputation as a barrister in the planning field which makes his appointment to the senior bench particularly welcome.

Such a ruling raise serious questions about the board in the very week when the Government produced a Climate Action Plan which has received a qualified welcome from An Taisce, among others.

The judiciary will continue to play an important role as a brake on the actions of developers keen to pile ‘em high and sell them not so cheap.

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