An Bord Pleanála Ref.: PL.73.242895

An Bord Pleanála

Inspector’s Report

Development: Permission for development comprising of 60 dwellings comprising of 18 no. 3 bed 2 storey semi-detached dwellings, 30 no. 4 bed 2 storey with roof space accommodation semi-detached dwellings, 11 no. 4 bed 2 storey detached dwellings and 1 no. detached bungalow, relocation of previously proposed footpath/cycle track on canal bank off the canal bank and all ancillary site works.

Site Address: Naas West, Naas, County Kildare

Planning Application Planning Authority: Naas Town Council

Planning Authority Reg. Ref.: 13/500055

Applicants: Le Monde Holdings Ltd.

Type of Application: Permission

Planning Authority Decision: Grant Permission

Planning Appeal

Appellant: Joseph Bergin

Caragh Court Residents Association

Type of Appeal: Third Party V Grant

Observers: None

Date of Site Inspection: 16th April 2014 and 21st August 2014

Inspector: Joanna Kelly

Appendices:

Appendix 1 Site Location Map

Appendix 2 Photographs and Site key Plan

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1.0 INTRODUCTION This appeal pertains to both a first and third party appeal. Two third parties have appealed against the decision of Naas Town Council to grant permission for a residential development. The First Party has appealed six conditions as set out in the notification of the grant of permission.

2.0 SITE DESCRIPTION 2.1 The appeal site has a stated site area of 4.88 hectares and is located in a predominantly residential area in west of Naas town. The site is a greenfield site, which bounds the Grand Canal to the south and south-east.

2.2 There is currently no vehicular access to the site. It is proposed to access the site via The Old Caragh Road, which contains a cycle path and a single carriageway for vehicles. This road is a cul-de-sac with only pedestrian and cycle access over the Ploopluck Bridge. Access to the Old Carragh Road is via a roundabout that is located on the New Caragh Road that serves a relief/link road to more recent housing developments in the town. It was noted at time of inspection there is a childcare facility located along the Old Caragh Road.

2.3 The appeal site is generally flat with evidence of reeds growing closer to the Canal. There are existing trees along the Canal boundary. There is an existing timber post and rail fence along the western boundary, which separates the existing residential housing with the site. There are also existing hedges/trees along this boundary.

2.4 It was observed during inspection that there appears to be an informal pedestrian link from Caragh Green to the Ploopluck bridge that is used by many pedestrians. Ploopluck bridge is a masonry bridge providing access over the canal to a large residential area including St. Gabriel’s Place and provides a pedestrian link to the town centre.

2.0 DESCRIPTION OF PROPOSED DEVELOPMENT

The applicant is seeking permission to construct 60 no. dwellings. Six different house types are proposed as follows:-

House type A is a two storey semi-detached, three bedroom dwelling with a total floor area of approximately 115sq.m. This dwelling has an overall height of approximately 9.3m.

House Type B is a three storey semi-detached, four bedroom dwelling with a total floor area of approximately 143sq.m. These units have an overall height

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similar to that of house type A but incorporate a dormer window on the roof plane.

House type C/D consists of two storey three bedroom semi-detached dwellings. Type D is a dual aspect dwelling. The floor area for each unit is approximately 115sq.m.

House type E is a two storey detached four bedroom unit with a total floor area of approximately 149sq.m. The overall height of this unit type is approximately 9.4m.

House Type F is a detached four bedroom unit with an overall height of 9.3m. The unit is dual aspect.

It is proposed to connect to the public utilities to service this development.

3.0 TECHNICAL REPORTS

3.1 Planning report

The first planning report noted concerns raised in objections to the proposed development regarding inter alia, access through open space lands representing a material contravention, ground water issues, surface water drainage, roads access, absence of an LAP.

The first report recommended a further information request regarding open space, rationale for the proposed development given the zoning of the lands through which it is proposed to access the site, traffic impact assessment and heritage issues.

The subsequent planning report dealt with the response to further information and recommended that permission be granted for the proposal subject to conditions. The further information submitted was considered significant and revised public notices were requested.

3.2 Water Services

A memo was prepared which made reference to previous reports prepared for an application that was withdrawn by the application File ref. No. 12/500042. It is set out that the Water Services department requested further information and clarification of FI in respect of that file and then recommended conditions to be attached to a grant of permission. It is set out that since January 2014 planning applications seeking a condition to mains water and wastewater are conditions that such connection agreement should be sought from Irish Water.

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3.3 Environmental Report

No objection to the proposal and conditions recommended.

3.4 Heritage Officer

Details of protective landscaping measures to be undertaken should be submitted. It was requested that bat surveys be completed and incorporated into findings of Ecological Impact Assessment. No surface water shall drain to the Grand Canal during construction or post construction.

Subsequent report to FI received set out that all mitigation measures contained in the ecological impact assessment should be attached as a grant of permission.

3.5 Conservation Officer

No objection to the proposed development subject to condition that a set back and landscape screening zone is put in place to minimise the impact of the development on the setting and curtilage of the bridge and canal.

3.6 Senior Executive Engineer – Transportation

Applicant required to submit a Traffic Impact Assessment taking into account crèche and Caragh Estate traffic volumes. Roads widths and curve radii at road junctions were to be agreed. Cross sections of cycle paths to be provided and clarification sought whether there is an entrance or turning bay shown opposite house no. 8 and 9. There is a similar report dated two days after the first noted on the file.

Subsequent report set out that transportation department has no objection to proposal subject to conditions.

There is a memo on file from the Acting Town Clerk to a Staff Officer in Planning regarding the imposition of the standard Part V condition on the basis that there was no agreement in place.

3.7 Inland Fisheries

The proposed development is located within the catchment of the River Liffey, one of the foremost salmonid fisheries in this region. The River Liffey is exceptional among most rivers in the area in supporting Atlantic salmon and sea trout. This highlights the sensitivity of local water courses and the Liffey catchment in general. The Council has recently refused permission for development in the area based on no capacity in the Osberstown WWTP. The IFI must adopt a precautionary approach in order that the River Liffey is protected. It should also be highlighted that the Osberstown WWTP

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discharges effluent into the River Liffey upstream of the abstraction point for potable water at Leixlip. If firm dates are available for the upgrade in this scenario IFI would accept a permission based on binding conditions that occupancy and operation by the applicant will be dependent on the commissioning of the upgraded plant i.e. only when additional capacity is available and projected effluent loads could be treated to an acceptable level at Osberstown WWTP with no threat of a deterioration in biological quality in receiving water.

4.0 PLANNING AUTHORITYS DECISION

The Planning Authority granted permission for the development subject to 59 conditions: Condition 1 Compliance with plans and particulars

Condition 2 Construction in accordance with revised layout plan

Condition 3 External finishes

Condition 4 Phasing and landscaping details to be submitted

Condition 5 Open spaces

Condition 6 Boundary and signage details

Condition 7 Bathroom windows to be obscured

Condition 8 Top soil on open space

Condition 9 Landscaping

Condition 10 No security gates to development

Condition 11 Naming proposals

Condition 12 Undergrounding of cables

Condition 13 Construction parking

Condition 14 Restriction of use

Condition 15 No attic space to be converted without permission

Condition 16 Satellite dishes

Condition 17 Ecological Impact Assessment

Condition 18-28 Road, parking, lighting and general construction conditions

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Condition 29 Details of road improvements works from Caragh road roundabout to be submitted.

Condition 30 Detail of roads to be submitted

Condition 31 Access to site for construction traffic

Condition 32-54 Conditions regarding drainage, water and construction works

Condition 55 Bring bank and refuse areas

Condition 56 Environmental Audit

Condition 57 Part V

Condition 58 Bond

Condition 59 Financial contributions

5.0 APPEAL GROUNDS

5.1 First Party appeal

This appeal pertains to six conditions as set out in the notification of the grant of permission and is summarised as follows:

• The appeal is solely concerned with Conditions 15, 16, 35, 36, 54 and 59 respectively.

• With regard to condition 15 that no attic space shall be converted for habitable accommodation it is set out that a number of houses are designed to have habitable space in the attic which has been approved and the wording of the condition is misleading and ambiguous. A revised wording of this condition is suggested by the applicant.

• With regard to the erection of satellite dishes on any “apartment block” the applicant sets out that as there are no apartments proposed this condition should refer to “houses” as opposed to apartments.

• Condition 35 refers to phasing of development pending the upgrade of sewerage scheme. The applicant sets out that there is no objection to the generality of the condition. A detailed phasing map which, deals with the overall development has been submitted which indicates that the development has been divided into four phases. It is submitted that while the Planning Authority have policies in the county development plan requiring capacity reserves of the upgraded plants of 20,000 PE in the Osberstown Waste Water Treatment Plant given the proposed PL.73.242895 Page 6 of 56 An Bord Pleanála

capacity of the plant it is clear that there will be adequate capacity for the proposed development by 2017 – within four years of the grant of planning permission. It is also set out that the employment number projected for the area might not be fully taken up in the timeframe initially suggested. It is therefore submitted that any extra capacity should be taken up by developments – particularly housing developments where there is an acute shortage of housing to meet the demands created by major employers coming into the Naas area- if appropriate. It is set out therefore that the Planning Authority should be given the discretion to permit further units access to the system where capacity becomes available.

• Condition 54 relates to the provision of social and affordable housing and the applicant has no objection to the thrust of the condition but that given the changes proposed by Government in relation to, for example, affordable housing, and the type and phasing of the proposed development, the time frame for such an agreement is too short. It is suggested that the time frame be put out to six months.

• Condition 59 pertains to financial contributions. It is submitted that the levies have been incorrectly calculated and the manner in which it is to be paid is contrary to the manner in which the planning permission has been granted. It is submitted that there are two valid tests that need to be applied to the condition imposed before accepting its validity:-

(i) Is the levy validly imposed as per the adopted Contribution Scheme of the Local Authority, and

(ii) Has the imposition of the scale of the levy been correctly and fairly imposed?

It is considered that the Planning Authority has acted outside the remit of the legislation. Section 10 and 11 are relevant to the monies levied on the subject development. It is submitted that the condition fails to take into account the fact that 20% of the units would be required for social and affordable housing and as such these units would come under section 18(a) i.e. …carried out by or on behalf of a voluntary organisation. It is also submitted that the applicant is proposing a rain harvesting system and that he should be entitled to a reduction as per Section 18 (k) of the contribution scheme which is estimated to be a reduction of a further €90,000.

• It is submitted that given the quantum of public open space being provided, and the amenity cycleways and walkways that the applicant is requested to construct along the Canal, as part of the development, PL.73.242895 Page 7 of 56 An Bord Pleanála

which is in excess of that required under the development plan, allowance should be made, by way of a levy reduction to the levies sought. On the basis that the recreational and amenity levy is approximately €2,000 per housing units, it is submitted that €1,000 per unit or €60,000 in total would have been a reasonable allowance to have been made.

• In conclusion to the appeal against the levies, it is estimated that levies should be reduced by €296,406.50 thus setting the levies at approximately €435,626.00. It is requested that the Board support this figure.

• It is also requested that the inclusion of the wording “payment of contributions are strictly in accordance with Paragraph 17 of Development Contribution Scheme adopted by Naas Town Council on 7th September 2011” be excluded given that the type of planning permission granted i.e. less than 20% of houses can be occupied in the short term. Reference is made to Section 17 (d) of the contribution scheme and that as phase 1 only includes 11 units and the remainder of the proposed development is subject to agreements with the Planning Authority, it would be grossly unfair to expect the applicant to pay 50% of the levy applicable for 60 houses when only 11 are approved in phase one. A revised wording of the condition is suggested by the applicant.

• In conclusion it is requested that the subject appeal and grant of planning permission for the proposed development on the grounds set out be upheld.

5.2 Joseph Bergin

The grounds of this third party appeal are summarised as follows:

• Reference is made to a similar application rejected by the NTC members under File ref. No. 12/500042.

• The design frustrates the stated objective in the Naas Town Plan to have a greenbelt linking the canal with the new urban village.

• Part of the access road at the entrance to the proposed development and linking it to the Old Caragh road is proposed across lands zoned “F” – open space. This area would be replaced with a busy road with adverse impact on enjoyment of the environs and unhindered access to Ploopluck bridge. It is considered that the proposed access to the site is a material contravention of the zoning objective of the Naas

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Development Plan 2011-2017. It is therefore ultra vires for the officials to grant permission.

• It is set out that an LAP should be provided for this area given the reference to future applications.

• The Naas Town Plan policy NH8 requires an Ecological Impact Assessment to be carried out where a proposed development may impact on the canal. To date one has not been completed.

• The siting of houses directly adjacent to the hedgerow between Caragh Green/The meadow and the application site will affect wildlife and destroy this as an amenity. There are two old trees in this location noted by the appellant.

• The water table in the area is unusually high. It is suggested that a hydrological engineer be commissioned as the bore-hole analysis does not correspond to reality.

• Reference is made to an archaeological survey and that the general area has been inhabited since the early Bronze Age and in the past, burials have been found in the Ploopluck area.

• Oberstown Waste Water Treatment Plan is already at capacity. Reference is made to the Inland Fisheries Ireland submission. When the infrastructure will be available is not known and allowing construction to start could result in an 11 house “ghost estate”.

• The water pressure in Naas is weak at the best of times.

• The general area cannot sustain further development given the high water table. Large parts of the site are 2 metres below the level of the canal. It is submitted that large quantities of top soil would be needed to be brought in as was done in Caragh Green and Caragh Court. Such an approach would further affect drainage and effectively spill water from the site into the existing estates at Caragh Green and Caragh Court.

• Large parts of Caragh Green suffer from poor drainage already. The poor proposals for rain water collection and drainage in the application are a matter of extreme concern and show a complete absence of a proper site inspection. The SCOT analysis submitted describes the land as “good free draining soils”.

• The Ploopluck Bridge is a protected structure. The road proposed directly impacts on the site and curtilage of the bridge and breaches the protection order by being too close to it. The potential use of pile driving PL.73.242895 Page 9 of 56 An Bord Pleanála

as a construction method would inevitably damage the structure of the bridge. The stone for use beside the road leading up to the bridge is out of character with the area.

• A development exclusion zone of 90 metres is applied to development along some parts of the canal in Naas.

• The proposed width of the access road cannot be accommodated by the width available in several places most notably between the existing crèche and the residence facing onto the road. An LAP is required before this road could be properly evaluated.

• Closer to Ploopluck Bridge the proposed road passes through part of Caragh Green (marked A on map supplied). This piece of land is part of Caragh Green. The amount of green space in the planning permission was specified to allow for drainage and water percolation. Specific reference is made to the planner’s report in this regard.

• The pedestrian crossing that is proposed to cross the new section of road leading to Caragh Court from the base of Ploopluck bridge is not sufficient.

• Access to the New Caragh Road will be severely diminished. There are already long tailbacks on Jigginstown Bridge.

• There is an established right of way going from Caragh Green at the pedestrian exit to Ploopluck bridge which the proposal violates.

• A proper wall should be built between The Meadow and the existing pedestrian road. The meadow is used by children to play when it is not swamped and it is not safe to have vehicles in such close proximity to a children’s play area.

• The proposed road’s location contravenes the Naas Town Development Plan for a 90 metre exclusion zone along the side of the canal.

• The proposed road would act as a barrier to drainage into the canal thus exacerbating the drainage and water problems in the area of Caragh Green and would increase risk of flooding and incidence of water ponding in the Meadow area.

• Reference is made to Section 35 of the Planning and Development Act regarding refusal of planning permission for past failures to comply. Reference is made to the need for the developer to fully complete developments in the area to allow them to be taken in charge.

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• Reference is made to 6 no. houses that would back onto the new development and the reduction of residential amenity and privacy of these houses would be affected.

• It is submitted that developing this broader site from the outskirts back in towards the basin and town centre is not in the interests of proper planning.

• Reference is made to the requirement for a road safety audit after the road is complete and not before.

• The town plan envisaged several other entrances to the site so it is not appropriate to provide access through just one small road that is current too narrow and pedestrianised.

• Condition 16 of the permission refers to an apartment block however no apartments are proposed.

• Condition 28 is very concerning and that Naas Town Council acknowledge that the access road width at the “pinch point” is not as wide as desirable and that any further development will necessitate a larger scale road improvement.

5.3 Caragh Court Residents’ Association

The grounds of this third party appeal are summarised as follows:-

• Neighbouring estates not taken in charge.

• Proposed access road is through existing lands forming part of Caragh Court/Green and zoned “F” green space. The lands were zoned open space as it was granted as part of the development of the adjoining Caragh Court/Green open space.

• The amount of green space in the planning permission for Caragh Green/Court estate was specified to allow for drainage and water percolation. Reference is made to planning file E64.11 and E64.23 in this regard. Specific reference is made to the advice of a planner that any permission for anything other than open space on this green space would be contrary to the advice of the planner.

• Granting access through the subject lands would deprive local residents of freedom of access across lands zoned “F” and replacing this with a busy road with adverse impact on people’s enjoyment of the environs and unhindered access to Ploopluck Bridge.

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• It is submitted that the construction of a road on land zoned “F” is a material contravention of the Naas Town Development Plan.

• The proposed access road is inadequate. It is set out that in granting permission heavy reliance was put on the fact that there is a stated road objective in the development plan, RP03 to construct a road from the existing Caragh Road to access the proposed housing development. However it is contended that this analysis is flawed as the roads objective is clearly indicative only and the proposed road, which was granted is not wide enough to fully provide for two way traffic, cycle paths and footpaths. Specific reference is made to the working of Condition 29.

• It is submitted that the roads objectives set out in Chapter 7 of the Naas Town Development Plan 2011 to 2017 are clearly listed in order of priority. It is submitted that road objective RP03 was always meant to be for a 2 lane road and not the one currently proposed by the applicant. The residents are clear that the primary access to the site was always to be from the construction of the road set out in RP02. It is understood that this road is to be constructed in the near future as part of planning permission for a new secondary school in Millennium Park. As such the proposal is premature.

• Flawed traffic management survey – The survey provided omitted the impact of the proposed pinch point in the new access road design on the Caragh Road. The focus was on the Caragh Road roundabout but the impact of delays at the pinch point at peak times may be to generate traffic queues which have the potential to block access to Caragh Court at evening peak times.

• No protection has been given to Ploopluck bridge a historical landmark used widely by the community.

• It is submitted that flood risk was insufficiently assessed. It is requested that the Board carefully consider the information provided by the applicant and works required to mitigate flood risk. The site is adjacent to and lower than the canal. It is proposed to raise levels of the site leading to concerns that excess water will run off into adjacent lands creating a significant flood risk.

• Reference is made to the EIA assessment, which refers to them as wet grassland.

• The Council acknowledge that Osberstown waste water treatment plant is at full capacity and incapable of facilitating any further development in the local area until upgrade is completed. The permission granted requires that the houses shall not be occupied pending the upgrade which runs the risk of built and unoccupied houses on the site. PL.73.242895 Page 12 of 56 An Bord Pleanála

• The site is ultimately to be the subject of a significant residential development and it is submitted that the ultimate overall scale of the proposed development is such that an EIS should be required.

• Reference is made to a number of planning applications being lodged, refused and withdrawn and the costs associated with lodging submissions on these applications.

• Reference is made to administrative procedures regarding notifications of grant of permissions.

• Reference is made to reference to apartments and phasing in the current permission which is not applicable to the application in question.

• In conclusion, it is acknowledged that the lands are zoned however the residents want a development to be in accordance with proper planning rather than a stop gap because the applicant is presently unable to get proper and sustainable access to the development from Naas town through RP02.

6.0 RESPONSES

6.1 First Party response to grounds of appeal submitted by Joseph Bergin

The main points set out in this response are as follows:

• Lemonde Holdings Ltd. sought permission for a residential development in 2012 File ref. No. 12/500042. The Planning Authority advertised their intention to grant permission for a material contravention as there were nine houses located on open space zoning. The material contravention was unsuccessful and the application was withdrawn. A pre-planning meeting for the current application took place.

• The current application is completely different on planning grounds as all residential development is located on lands zoned C – new residential.

• The proposal links the canal with the new urban village. All dwellings are located north of the proposed access road to protect view of the canal in accordance with the development plan objectives. The planner dealt with the issue of material contravention in her report.

• The design complies with the written roads objective RP03 of the Naas Town Development Plan (NTDP) to provide a section of the road to the northwest quadrant from the Caragh Road in the vicinity of Ploopluck Bridge. It is set out that it was also the council’s objective in the previous NTDP 2005-2011, reference Roads Objective M25b to provide a road. It is contended that if the

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road was not provided the applicant would be materially contravening the NTDP.

• The lands in question at the south east of Caragh Court were specifically reserved under Bord Pleanala decision PL.73.5.71008.

• It is contended that it is Council policy to allow the construction of roads, paths and cycle-tracks on lands zoned F: open space and amenity.

• The subject site is not part of lands identified in map ref. 14.1 of NTDP requiring an LAP. It is confirmed that an indicative masterplan was submitted with the application demonstrating links to the canal harbour area.

• A comprehensive Ecological impact assessment was prepared with mitigation proposal during construction.

• The proposed development respects land use zoning objective Map 14.1. It also respects Roads Objective RP03 and Map 7.1 of the NTDP.

• The developer proposes to retain the existing hedgerows bounding Caragh Green to the western boundary of the site. A 2m wall is proposed on the development site of the site along this boundary. Condition 17 of the grant of permission specifically refers to mitigation measures to protect the hedgerows during construction. Houses will not be located nearer to hedgerow than the adjoining housing scheme.

• A report was submitted to the Council regarding the high water table. The field work consisted of trial pits and dynamic probing at four locations throughout the site. The water table was recorded at levels 1.5m to 2.0m below ground level depending on location. The staff of the Council had no objection to the proposal.

• The subject site is not identified on any archaeological maps and therefore a survey is not required.

• It is submitted that the water services department had no objection to the application subject to conditions that included a phased approach to the development. Approval was announced in June 2013 for the upgrade and expansion of the waste water treatment plant at Osberstown. The contract is being funded under the Department’s Water Services Investment Programme 2010-2013. Reference is made to a Council meeting in May 2013 regarding the progress of the plan upgrade. The lands are suitably zoned for residential development and it is a core strategy policy of NTDP to prioritise the sustainable development of Naas as the County town for Kildare and to ensure that Naas can support the level of growth to underpin its role within the

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GDA as a “driver” of development in sustaining strong levels of economic growth.

• A site specific flood risk assessment was carried out on the subject site. Flood risk to the proposed development is considered low. It is set out that the proposal does not interfere with the existing drainage pattern of the adjoining lands. It is proposed to provide French drains in the open space areas.

• The proposed access road does not interfere with the bridge structure. The bridge structure is outside the control of the applicant. There are no dwellings within close proximity of the bridge. The request for a 6 metre stone wall to separate the proposed access road from the Caragh Green would seem to contradict the appellant’s desire to connect the existing estate with the proposed linear park along the Canal.

• The proposed development complies with the NTDP with regard to separation from the canal. No reference is made to a 90m buffer zone in NH18 of the NTDP. The proposal respects zoning map 14.1 with residential development located on lands zoned C. The development will deliver a substantial part of the linear park along the canal, protect the vista of Ploopluck Bridge and protect a wildlife corridor along the canal. It is set out that during the application Waterways Ireland requested that a cycle track and footpath be located along the canal bank. However, as a result of the recommendations from the ecological impact assessment, the path was re-located along the access road, RP03 of the NTDP.

• The proposed access road is 6m wide along the R409 entrance with a pinch point designed in accordance with the Traffic Management Guidelines published by the DoECLG. This traffic calming measure was designed in consultation with the Guidelines. The distance from the yield of the pinch point to the entrance of Caragh Court is in excess of 60m. This would allow for up to 12 vehicles to queue before impinging on the entrance to Caragh Court. The location of such traffic calming near a crèche is positive.

• A Traffic Impact Assessment (TIA) was requested at the further information stage and submitted. The ratio of flow to capacity is predicted well below the 0.85 reserve capacity of the roundabout junction.

• The proposed pedestrian crossing is designed in accordance with Section 4.3.2 of DMURS. With regard to reference to tailbacks, it is set out that the RFC is well below the predicted reserve capacity for the roundabout.

• A pedestrian crossing is proposed from Ploopluck Bridge to Caragh Green, designed in accordance with Section 4.3.2 of DMURS.

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• The topography of the lands fall from southwest to northeast away from the Canal. There is no drainage permitted by Waterways Ireland into the Canal.

• The subject site was never zoned as a Town Park. The proposed development complies with Zoning Map 14.1 of the current NTDP.

• It is set out that all works are completed and the process of Taking in Charge of Caragh Green, Caragh Meadows and Caragh Court is ongoing with NTC. It is set out that the applicant wishes to finalise access to the subject development prior to the process being completed.

• With regard to the concerns raised, that houses were right up against existing houses it is set out that the proposed houses are separated by in excess of 29m from houses on Caragh Green.

• The subject site is located approximately 500m from the town centre.

• Reference is made to the Road Safety Audit and that it seems the appellant misunderstood Condition 25 in the notification of the grant of permission.

• It is submitted that the reference to “apartment” should have read “dwelling” in the conditions.

• It is requested that the Board uphold the decision to grant permission for 60 dwellings. The lands are suitably zoned for residential development. The proposed development will deliver some core objectives of the NTDP.

6.2 First Party response to grounds of appeal submitted by Caragh Court Residents Association

This response to the grounds of appeal of the third party is summarised as follows:-

• All works completed and the process of taking in charge of Caragh Green, Caragh Meadow and Caragh Court are ongoing. The applicant wishes to finalise access to the subject development prior to the process being complete.

• The appellants are incorrect in saying the proposed access road is through lands that form part of the open space for the Caragh Court/Caragh Meadows development. The lands to facilitate the access road and road improvements works at this location were specifically reserved under ABP Decision PL.73/5/71008. Condition 1 (c) of that permission required the removal of site no’s 157 and 158 in the interest of residential amenity to maintain a reasonable set back from the proposed road reservation affecting the south- east corner of the site. Condition 4 stated land expected to be required by the

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Planning Authority for road improvement in the south-east corner of the site shall be reserved free from development.

• A fence was erected and a hedgerow planted during landscaping of the open space for Caragh Court and Caragh Meadows. It is contended that this permission put the appellants on notice of the council’s intention to locate a road at this location.

• Condition 5 of the decision PL.73/5/71008 required an area of 2.5 acres to be developed and landscaped to “serve the needs of the occupants of the proposed houses and of existing and approved houses to the south and east of the present site”. A letter is submitted which confirms that condition 5 is complied with.

• The design complies with the written roads objective RP03 of the NTDP to construct a section of road to the northwest quadrant from the Caragh Road in the vicinity of Ploopluck Bridge. The first party believe they would be contravening the development plan if they did not provide this objective.

• Table 14.5 of the development plan does not refer to the construction of infrastructure in the land-use zoning matrix. Specific objectives are addressed under the various headings of objectives in the relevant chapters of the development plan. Reference is made to roads objective RP02 and the indicative road line for the construction of the road from the boundary of the LAP at the Canal Harbour Area via north-west Quadrant Masterplan to connect with the Millenium Park Link Road. Reference is also made to roads objective RP04 to construct a distributor road linking the Dublin Road to the Blessington Road via the Tipper Road to support this contention. Similar to the subject application, both of these indicative road alignments traverses lands zoned F – open space.

• It is considered that the roads objectives are real and defined. A traffic report submitted on 02/08/2013 supported this application. The proposed access road complies with recommendations of Design Manual for Urban Road, DMURS. Pinch points are established traffic calming measures employed by Planning Authorities and Traffic Engineers. A “pinch-point” already exists on the R-409 before you enter the village of Caragh.

• The appellants refer to part of Condition 29 regarding the improvement works being considered a short term measure. It is contended by the first Party that the transportation Department and Town Engineer are satisfied that proposed access road has adequate capacity to service the current development. The inclusion of the above was to put the applicant on notice for future applications.

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• The objectives contained in the development plan are statement of intent and are not in order of preference.

• The First Party set out that the traffic management survey was not flawed. Drawing P-1274-16 shows a distance of 60.0m would provide for a queue of up to 12 vehicles allowing for 5.0m per vehicle before impacting on the appellants entrance. It is also set out that Condition 25, Road Safety Audit will address any concerns should they arise.

• The proposed development does not interfere with the Ploopluck Bridge structure.

• A site specific flood risk assessment was carried out on the subject site by a specialist hydrological firm and concludes that flood risk is low. The surface water is designed in accordance with SuDS and the Greater Dublin Strategic Drainage Study, GDSDS. The water services department had no objection to the proposal. The proposal does not interfere with the existing drainage pattern of the adjoining lands. The applicant does not intend to raise the lands.

• The water services department had no objections to the proposal and included a condition for phased development. The Department announced approval for Kildare County Council to seek tenders for upgrade and expansion of the waste water treatment plant at Osberstown. Reference is made to the Director of Services’ update at a special meeting in 2013 regarding the upgrade. Tenders were returned from contractors and consultants were preparing a tender analysis and the works appear to be on programme with a start date in quarter 2 of 2014.

• The lands are suitably zoned for residential development. It is a core strategic policy of NTDP to prioritise the sustainable development of Naas as the County Town for Kildare and to ensure that Naas can support the level fo growth to underpin its role within the GDA as a “driver” of development in sustaining strong levels of economic development.

• The proposed development is below the threshold for an EIS. Reference is made to a completed EIA submitted with the application. (The Board should note that EIA in this instance appears to be an Ecological Impact Assessment rather than Environmental Impact Assessment).

• The current application was submitted after addressing the concerns raised in the material contravention process. Nine dwellings that were previously located on lands zoned “F” open space were excluded under this application.

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• With regard to condition 16 it is submitted that reference to “apartment” is a typo and should be “dwelling”.

• It is requested that the Board uphold the decision to grant permission as the lands are suitably zoned for residential development and the applicant is considered to accord with the provisions of the development plan and national policy documents.

6.3 Panning Authority response to grounds of appeal

This response is summarised as follows:

• The subject site and surrounding lands between the site and the Harbour are zoned for residential development since the previous development plan (2005). The area immediately adjoining the Canal Harbour remains un-zoned in the Naas Town Development Plan 2011-2017 and there is a stated objective to provide a LAP for this area.

• Biodiversity was considered in the Ecological Impact Assessment and the updated document submitted to the Planning Authority. Relevant conditions were attached. It is incorrect to state that houses are directly adjacent to the hedgerow.

• There are no identified protected monuments located within or adjoining the subject site. The site is not located within an archaeological potential outlined in Chapter 11 of the NTDP.

• Reference is made to the Roads Objective RO3 “to provide a new road from Caragh Road via zoned lands to end at the boundary of the northwest quadrant masterplan lands.” It is not considered that construction of part of the access road through such lands would represent a material contravention. The indicative location of the roads objective is shown on map 14.1 of the Plan.

• The Planning Authority agrees that the exact location of the roads objective RP03 is indicative only. The wording of the objective is quite clear and would necessitate a connection from Caragh Road to the subject site which would be subject to detailed design.

• It is not agreed that the development plan roads objective are listed in order of priority.

• The Board is referred to the transportation Department reports on file and the specific conditions attached.

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• The Transportation department assessed the application and the technical reports submitted and recommended that permission be granted subject to conditions. It should also be known that the bridge is a protected structure in the RPS.

• The water services department requested further information and clarification of further information and recommended conditions on the previous application File Ref. 12/500042 which was withdrawn. This department recommended that the current proposal be granted subject to conditions.

• The proposal is sub-threshold and does not require an EIS.

• The Planning Authority has at all times complied with planning legislation in the previous application and the subject application. It is noted that Condition 16 was included in error and is not relevant to the proposed development.

• Phasing of the proposed development relates to the provision of necessary infrastructure. The phasing requirement of the Planning Authority is reflected by the inclusion of planning conditions 35 and 36.

• With regard to the First Party appeal it is set out that the Planning Authority would not be against the change in wording of condition 15 if the Board sees fit.

• With regard to conditions 35 and 36 reference is made to a revised condition regarding a connection from Irish Water in all such conditions.

• Condition 54 is a standard housing condition which the Council continue to apply.

• Condition 59 regarding contributions has been correctly applied. Once agreement is reached regarding Part V and if it relates to the transfer of social and affordable housing units credit will be given upon receipt of confirmation from the housing department.

• Once the rain-harvesting system has been approved as part of the planning application process credit will be given as set out in the development contribution scheme.

• It is set out that all developers whether single one off units or multi-unit developers are required to contribute to recreation and amenity and community elements which provide capital projects from which their development/residents benefit. For files granted since 1st January 2014 the water and waste water elements are not applied by this Authority but applied and collected by Irish Water.

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• Payment of contributions are specifically set out in Paragraph 17 of the Development Contribution Scheme and are based on the number of units included in the commencement notice submitted. There is no flexibility in this arrangement of 50% upon commencement to ensure that contributions are paid on time and in compliance with conditions of planning. If the applicant is approved for 11 units in Phase 1 then the commencement notice submitted should only reflect these 11 units for which he will be required to submit 50% of the charges due.

• It is considered that the site is suitably located near the town centre and adjoins an established residential development and is appropriately zoned. The site is suitable in terms of sequential approach and in the proximity to Naas Town Centre and its facilities. The quantity of public open space provided substantially exceeds the development plan requirements. The design and layout of the scheme is considered to be of good quality.

6.3 Response from James Bergin to Caragh Court Residents’ Association grounds of appeal

The contents of this response are summarised as follows:-

• With regard to the error in the conditions regarding “apartments” and use of habitable space in attics the third party states that a “cut and paste” job would appear to have been done raising concerns about other issues that may have been overlooked.

• The water capacity is not there to facilitate this development and NTC have made a questionable decision to try to phase the coming on stream of the houses with the future potential supply of water. There are existing permissions in place that will gobble up the water supply.

• The appeal suggest that NTC calculated the financial figures incorrectly and it is submitted that the Council only granted permission for the contributions.

• It is not clear as to why NTC did not impose useful conditions like protection and enhancement of Ploopluck Bridge, putting existing electricity supplies along the Old Caragh Road underground, facilitating taking in charge estates the same developer built 20 years ago and many other items that would have been in the interest of proper planning.

6.4 Response from James Bergin to the Planning Authority response to grounds of appeal

To avoid repetition, only the salient points which have not been previously referred to are set out hereunder.

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• Staging the development is a flawed approach by the Council in facilitating this development as there is no definitive time frame for availability of the schemes referred to.

• Section 149 allows the Council to refuse permission for previous failings to comply with permissions.

• The site is within 500m of a Viking Motte and from far from the historic centre of the town. Reference is made to several significant burial sites found in the past in the area.

• The application is a material contravention in so far as the access road is concerned as it traverses open space. It is set out that this will be the subject of a High Court challenge if the Board does not overturn it.

• Appellant is horrified by the prospect of a one way system outside his daughter’s crèche.

• Reference is made to the water conditions of the site.

6.5 Response from Caragh Court Residents’ Association to Planning Authority response

Again, to avoid repetition points already raised are not repeated in this summary below.

• As a general point, the residents do not consider the response of the Council to their appeal to be in any way satisfactory.

• The residents would consider that a LAP for the Canal Harbour area should be in place prior to any development adjacent to, or along the canal. The area which is subject to the LAP should form a key element of how the town should expand from the centre, towards and beyond the canal. A proper LAP and construction of RP02 may then facilitate identifying the appropriate order and sequence of development outwards from the town, incorporating the canal and the subject lands.

• The site maybe 800m from the town centre as the crow flies however this is not the relevant metric as the site is proposed to be accessed through RP03. From the proposed access at RP03 the development site is c. 2km by car from the town centre.

• The Council has not addressed the residents’ contention that the development with access through RP03 is directly contrary to the transport strategy as outlined in Chapter 7.3 of the development plan and specifically the IFPLUT

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preferred framework plan for the town which is focused on an expanded town centre and building outwards from the town.

• The Council disputes that the roads objectives RP02 and RP03 are set out in order of priority but they give no support for their contention that they are not. The residents linked the logic of prioritising RP02 over RP03 with the transport strategy set out in Chapter 7.3 of the Naas development plan.

• The residents contend that the construction of RP03 is a material contravention but this is only part of the grounds of their appeal. The main thrust of the appeal is that construction of the road is contrary to sustainable planning and development as it was part of the open space granted as part of the development of the adjoining Caragh Green/Caragh Court estate. This stretch of land between the “meadow” and the pedestrianized road over Ploopluck bridge was given planning permission as part of the green space associated with the Caragh Green, Caragh court development. The amount of green space was specified to allow for drainage and water percolation. Reference is again made to a former planning report on 4th November 2006.

• It is the residents’ contention that any new access road should be permanent and sustainable. The proposed road is not wide enough to fully provide for two way traffic, cycle paths and footpaths. The council acknowledge that the proposed road will not be permanent. The residents are left with a temporary road with no visibility or details when it will be fully constructed. It is unacceptable that the applicant is not required to construct the access road to the full required width for 2 lanes, cycle paths and footpaths prior to any development taking place.

• The transportation department assessed the impact of the pinch point on traffic flows at peak times. The residents find it unsatisfactory that the Council’s response should be that the transportation department approved the development with conditions. It is unclear if the transportation section considered the pinch point.

• The adequacy of the flood risk assessment has not been addressed by the Council. The analysis and reports from the water services department included by the Council all relate to the previous application. The Board are obliged to consider the application de novo.

• To allow construction of houses and yet not allow occupation until the upgrade of the wwtp plant is completed is illogical.

• There is a series concern that the local water system simply does not have the capacity to facilitate the development.

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• It is contended that given the proximity of the subject lands to the canal, that full development of this magnitude would have a significant impact on the local environment irrespective of whether it is considered sub threshold or not. The response refers to the provisions of the Planning and Development Regulations with regard to whether a development would have significant impact or not. The residents are of the view that an EIS is required and the council never properly considered the issue.

• The response concludes that the grounds of appeal are specific, detailed and reflect the genuine concerns of local residents, so it is disappointing that the Council’s submission does not specifically address the grounds of appeal in many instances.

6.6 First Party response to the Planning Authority Response

The response is summarised as follows:-

• The response generally concurs with the Council’s view on various matters.

• The applicant welcomes the Council’s view regarding Condition 15 and implores the Board to revise the condition.

• With regard to Condition 35 and 36 it is requested that the Board take into account the phased proposal submitted.

• With regard to the comments of the Council about condition 54 it is considered these should refer to condition 57. The Board are requested to increase the timeline from eight weeks to six months.

• It is requested that the Board amend condition 59 in the interest of clarity.

• With regard to rain-harvesting system it is requested that the Board amend this condition in the interest of clarity.

• With regard to the open space the applicant refers to the submission dated 22nd January 2014 in this respect.

• With regard to payment contributions it is noted that the Council will only require payment for units which a commencement notice is submitted for and in the interest of clarity it is requested that the condition be amended.

7.0 PLANNING HISTORY

There is no relevant planning history associated with the appeal site. Reference is made on the file to an application File Ref. No. 12/500042 however this application was withdrawn.

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File Ref. No. 73/5/71008 Permission granted on appeal for a change of layout and house type on a site at Caragh Court, Carragh Road, Naas.

8.0 PLANNING POLICY

Design Manual for Urban Roads and Streets 2013 This Manual sets out an integrated design approach to street design within urban areas. Design must be influenced by the type of place in which the street is located and balance the needs of all users.

Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas (Cities, Towns & Villages) 2009. The document replaces the Residential Density Guidelines and is accompanied by the Urban Design Manual. This document focuses on the creation of sustainable residential developments and includes the promotion of efficient use of land and of energy; minimization of greenhouse gases; prioritizing waling, cycling and public transport.

Smarter Travel – A sustainable transport future, a new transport policy for Ireland 2009-2020. This document sets out five key goals as follows: • To reduce overall travel demand; • To maximize the efficiency of the transport network; • To reduce reliance on fossil fuels; • To reduce transport emissions; • And to improve accessibility to public transport.

Regional Planning Guidelines, Greater Dublin Area 2004-2016 Naas is identified as one of the primary development centres in the Hinterland area of the Greater Dublin Area. The proposed development path for the Hinterland Area has the objective of achieving, over a period of time, a number of large towns (or adjacent set of towns), each complete with a high level of employment activities, high order shopping and a full range of social facilities.

Naas Town Development Plan 2011-2017 The Naas Town Development Plan 2011-2017 is the statutory town plan for the site in question. The plan seeks to develop and improve in a sustainable manner the social, economic, cultural, physical and environmental assets of Naas.

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With regard to the core strategy it is set out that this town plan seeks to promote, inter alia, population growth in Naas in line with the Regional Planning Guidelines population projections and the settlement strategy of the County Development plan 2011-2017. Of particular relevance to this application is the policy: CS2 To facilitate the development of new housing in accordance with the targets set out in the Regional Planning Guidelines and the County Settlement Strategy in the County Development Plan.

CS11 To promote and facilitate the development of sustainable communities through land use planning, providing for land uses capable of accommodating employment community, leisure, recreational and cultural facilities, accessible to and meeting the needs of all individuals and local community groups, in tandem with the delivery of residential and physical infrastructure to create quality environments in which to live.

CS13 To seek the delivery of physical and community infrastructure in conjunction with high quality residential developments to create quality living environments.

CS15 To protect and conserve the natural environment

Map 2.1 contains details for the core strategy

Integrated Framework Plan for Land Use and Transportation In May 2003, Naas Town Council in conjunction with Kildare County Council prepared an Integrated Framework Plan for Land Use and Transportation (IFPLUT) for Naas. The main principles of the Naas IFPLUT study, which underline the basis for the transportation strategy for Naas are as follows: • To incorporate new civic, commercial, shopping, cultural and community facilities within an expanded town centre; • To promote well-located local/ neighbourhood centres containing commercial, community and educational facilities, integrated with and supporting new and existing residential development and public transport; • To direct new employment to locations that reduce the demand for travel; • To encourage and promote diversity and quality in new residential areas at higher densities appropriate to their location within the town and within proximity to public transport; • To achieve high quality design and layout in new developments and neighbourhoods; • To protect and enhance the key natural and heritage assets of Naas, including the character of the town and the Main Street;

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• To promote the provision of high quality safe and convenient recreational facilities and public open spaces integrated, where appropriate with walking and cycling; • To enhance the permeability of the town through the identification and promotion of opportunities for walking and cycling in and between existing and future development; • To promote and maximise the use of public transport; • To promote and maximise the use of sustainable transportation modes with a consequent reduction in the need to travel.

Masterplan for Northwest Quadrant of Naas Town 2007 This is a non-statutory document for the development of 247 hectares of strategic lands in the north-west quadrant of Naas town. A copy of the plan is enclosed as an Appendix for ease of reference.

8.0 SECTION 132 NOTICE

With regard to the assessment of this file it was considered by this Inspector that there was an absence of definitive information about the current status of the upgrade of the Osberstown wwtp and the two network contracts. It was unclear whether there had been any approval of tenders sought by the Council and when works were due to commence on either the upgrade of the treatment plant or the network contracts. Given that there maybe extant permission still awaiting connections to the network and treatment plant the available existing capacity and capacity following the upgrade works needed to be clearly established.

The Section 132 notice was issued to the Planning Authority on 30th April 2014 requesting information about the current status of the upgrade of the wwtp and expected timeframe for commencing works on both the waste water treatment plant and the network upgrade. It was also requested that the current capacity of the treatment plant be specified, current loading and capacity once upgrade works are carried out. Details were also requested of existing permissions which were awaiting connections to the wwtp. Details of the strategic reserve were also requested. Details of an assessment of the adequacy of the waste water collection and disposal facilities to cater for the development proposed were also requested.

Pursuant to this request, a section 131 notice was issued to Irish Water providing that any submissions/observations they had to be made by 28th May 2014. No response was received by the Board from Irish Water.

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Details of the response from the Planning Authority were circulated to all parties for comment. Whilst I will deal with the response received from the Planning Authority under the relevant headings in the assessment section of this report, a summary of each of the responses to the S132 notice from the relevant parties are set out below.

8.1 James Bergin • It is submitted that the Planning Authority’s letter was received outside the timeframe specified and should be ignored. • It is set out that the Board should make an assessment based on facts making its decision based on the reality on the ground rather than the aspirations of the local authority. • The Local Authority admits that other water projects referred to are under review and these will not proceed as originally envisaged. It is foolish to grant permission for an estate based on projects that may or may not materialize in the life time of the permission. • The figures the Local Authority has given for developments under hold is further proof that they don’t have water capacity currently. • Concerns are raised about the “internal agreement” between two departments. Full details of this agreement should be sought. • Concerns are raised about the focus on the water treatment capacity in the recent correspondence and refer to recent correspondence regarding the proposed one way system.

8.2 Caragh Residents’ Association

• It is set out that the issue to be addressed is whether the proposed development constitutes premature development. Clearly the completion and commissioning of the network contract is identified as being critical important in allowing the development of the proposed units outside of Phase 1 to be completed. The contract for the proposed wwtp upgrade is to be awarded in July 2014 and the Council are unable to give any specific timeframe for the network contract other than vague references to the Irish Water Capital Investment Programme 2014-2016. • It is considered that the development is premature primarily due to the fact that the network contract is required to be provided to allow the development (in its entirely) proceed, plans exist to provide it but the timeframe is uncertain/unknown. • No specific date for commencement or completion of the works on the wwtp has been given.

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• With regard to point 2 (c) the upgrade of the wwtp over phases, the timeframes are unclear. i.e. are time periods meant to refer to the period from award of contract, or signing or commencement of works. • It is set out that no reference is made to a permission Esso Ireland Development or for W Neville Sons Ltd. Development. • The residents have previously highlighted that the council appears to have performed very limited assessment of waste water collection and disposal facilities in respect of application 13/500055. In response to the residents appeal to the Board the Council in assessing the waste water collection and disposal facilities merely states that application 13/500055 is broadly similar to 12/500042.

8.3 First Party response • Applicant is informed that the contractor BAM has commenced work on site for the upgrade of the Osberstown wwtp. • It is set out that Kerry Group (File ref. No. 13/500018) connects to the Osberstown wwtp on a separate foul sewer line from the proposed development. As such they will not be adding increased loading to the line the applicant is proposing to connect to. • Reference is made to the p.e. capacity submitted by the Planning Authority. • With regard to point 3, developments that were permitted but not yet constructed, it is set out that the concerns of the Inspector under PL.73.232688 are no longer relevant. The treatment plant upgrade works has received funding, works commenced on site and will be completed within 26 months. • It is set out that the applicant is seeking to construct 11 units initially and these units will not be available for occupation before Phase 1 of the wwtp which is January 2015. It is set out that the upgrade of the wwtp will be completed prior to the expiration of the subject planning permission. • Reference is made to the strategic reserve and permissions granted. It is noted that two of these permissions have been extended. It is set out that the applicant cannot see these permissions being constructed or occupied by October 2015. • It is requested that the Board uphold the policy of the Council of allowing restricted development on sites on a phased basis until the treatment plant is upgraded. File ref’s 11/500078 and 11/500072 are referenced in this regard. • The submission concludes by summarizing points made in the response.

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9.0 ASSESSMENT Having examined the file, relevant history files, considered local and national policies, inspected the site and immediate environs, assessed the proposal and all of the submissions on file, I consider the key issues to be: • Principle of development • Design and Layout • Access and road layout • Osberstown Waste water treatment plant upgrade • Flood Risk Assessment • Appropriate Assessment • First Party appeal against conditions • Other The Board will be aware that since 1st June 2014 the functional areas of Kildare County Council, Naas Town Council and Athy Town Council were amalgamated and hence Kildare County Council is responsible for the planning function of the entire administrative area of County Kildare. The Naas Town Development Plan remains however the relevant statutory plan for the appeal site in question.

9.1 Principle of development 9.1.1 Land-Use Zoning and development plan policy

The applicant is seeking permission to construct 60 no. dwellings on lands which primarily have a land use zoning objective “C – new residential”. A portion of the lands immediately along the Grand Canal have a land use zoning objective “F- open space”. The proposed access road from Old Caragh Road traverses a section of the “F” zoned lands – open space. The site is located within the boundary of a much larger area that forms part of the Northwest Quadrant Masterplan Lands. A masterplan for this area was prepared in 2007 and it is set out that it embraces the ideals of the National Development Plan, the National Spatial Strategy, the Regional Planning Guidelines for the GDA, Transport 21 and the Naas IFPLUT and most importantly of the Naas Town Development Plan 2005-2011. A copy of the masterplan is enclosed as an Appendix for ease of reference. There are new roads objectives (indicative only) RP02 and RP03 on the Map ref. 14.1.

9.1.2 Core Strategy

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The Core Strategy for Naas recognises the importance of Naas as the County town of Kildare. The development plan seeks to inter alia, encourage the focus of new development on promoting population growth in Naas in line with the Regional Planning Guidelines population projections and the settlement strategy of the County Development Plan 2011-2017. The settlement hierarchy acknowledges that the most significant constraint to the short-term development of Naas relates to the wastewater infrastructural constraints at the Osberstown waste water treatment plant. The County Development Plan identifies a housing unit target of 93,748 by 2016 and 112,477 by 2022. The allocation of units identified provides that a minimum of 35% of the overall allocation be to towns in the Metropolitan area and the remaining 65% to the Hinterland area of which a minimum of 50% to be directed to the main urban centres such as Naas. It is unclear as to what housing units have been constructed to date although the economic downturn has affected the delivery of new residential units nationwide. It is considered that the proposal would generally comply with the provisions of the development plan in this regard.

9.1.3 Density

The applicant is proposing to construct 60 units on a site of 4.88 hectares giving rise to a density of 12 units per hectares. Whilst this density is considered low such is largely determined by the requirement to comply with the delivery of new roads objectives and open space areas adjacent to the Canal area.

9.1.4 Conclusion

With regard to the principle of developing the lands for residential use it is considered that such is an acceptable land use and conforms with the overall objectives of the Kildare County Development Plan 2011-2017 and Naas Town Development Plan 2011-2017 including the land use zoning objective.

9.2.0 Design and Layout

9.2.1 Overview

The Department of Environment published, Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas (Cities, Towns and Villages), 2009. There is an urban design manual that is a companion document to the Guidelines. Chapter 5 of this publication provides that “firm emphasis must be placed by planning authorities on the importance of qualitative standards in relation to design and layout in order to ensure that the highest quality of residential environment is achieved”1. The applicant

1 P40, Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas, 2009

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submitted a concept proposal and design statement with the application stating that the proposed development has an important function connecting the existing built environment on the north side of the canal to the town centre/Harbour area. The proposal is considered to be acceptable and is such that will lend itself to being appropriately integrated with the adjoining lands when they are developed in the future.

9.2.2 House Design and Layout

The house design and layout are such that are considered to comply with minimum standards set out in the development plan and the national guidelines “Sustainable Residential Development in Urban Areas”. The design of the houses is considered appropriate for the area in which they will be located. Each unit is considered to have adequate internal storage space and in general are located in a manner that maximises the use of natural light. In general it is considered that the layout of the dwellings is such that would provide reasonable residential amenity with all dwellings overlooking public open space. Parking is to be provided within the curtilage of each dwelling. It is considered that the level of on street parking is such that would therefore tend to be visitor parking.

9.2.3 Private open space

With regard to private open space, in general each unit is considered to have adequate rear amenity space. It is noted that unit types A (3 bed units) have substantially larger gardens than unit types B (4 bed units) in some instances. Whilst the larger gardens may offer more potential in the future for extensions to the rear of the 3 bed properties, it is considered that larger gardens should have been provided to some of the 4 bed units as these units tend to be occupied by families that seek larger rear private amenity space. The Board may wish to consider altering the location of the house types to address this issue.

9.2.4 Public open space

The layout provides for a linear park along the Canal. The revised layout submitted by way of further information indicates the provision of a new pedestrian public footpath and cycle route to the southern section of the new road and approx. 20m from the adjoining canal. The open space including the linear park should be provided prior to the occupation of any residential unit. Notwithstanding the landscaping proposals submitted, it is considered that a detailed landscaping plan should be submitted to the Planning Authority for their agreement prior to commencement of development. The retention of existing hedgerows and protection measures to be employed during construction should be detailed. PL.73.242895 Page 32 of 56 An Bord Pleanála

9.2.5 Boundary Treatments

Details pertaining to boundary treatment are contained in Drawing No 02 submitted to the Planning Authority 2nd August 2013. No boundary treatment to the rear perimeter of dwellings that back onto Caragh Court/Caragh Green is set out. Whilst it appears that hedgerow is to be retained at this location, it is also considered that a solid 2m high timber panelling fence can be provided whilst also retaining the hedgerow.

9.2.7 Conclusion

In conclusion, the proposed design and layout of the residential scheme is considered to comply with the relevant development plan policies and objectives and is such that would afford a reasonable quality of life for future residents.

9.3.0 Access and Road layout

9.3.1 Proposed Access to site from Old Caragh Road The proposed access to the appeal site is via an existing turning head at the end of the Old Carragh Road where it meets with the Ploopluck Bridge. The proposal is to remove the bollards currently in place and construct a new road through a portion of land zoned open space to provide an access. Third parties have raised concerns that the proposed access road traversing open space represents a material contravention of the development plan. In this regard, I refer to the Development Management Guidelines for Planning Authorities, 2007 and in particular Section 5.12 which refers specifically to material contravention. It is set out that “in deciding whether any development would normally contravene the plan, the authority should consider whether there would be a departure from a fundamental provision of the plan or whether the development – alone or in conjunction with others – would seriously prejudice an objective of the plan”.2 I have carefully considered the zoning Map 14.1 of the Naas Town Development Plan and the objectives contained in the written statement and it is not considered that the proposal, namely the provision of an access point at this location is such that represents a material contravention of the plan. The existing open space associated with Caragh Green is to remain and a section of open space is also to be provided to south-western pocket of the site as per the zoning map. The proposal is to provide a section of road along with a cycle path and footpath through a narrow section of the open space area so as to provide necessary access to

2 P56, Development Management, Guidelines for Planning Authorities, June 2007.

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the site. The provision of this infrastructure is not such that would normally be a fundamental departure from the provision of the plan nor is it such that would compromise the delivery of other objectives of the plan. Map 14.1 does provide an indicative road layout at this location and whilst it is not clear whether it was intended to provide an access at this specific location on Map 14.1, the roads objective RP03 is in my opinion quite clear, “to provide a new road from Caragh Road (in the vicinity of Ploopluck Bridge) via zoned lands…”. It is therefore considered that irrespective of previous planner’s comments in history files about the use of these lands, the proposal complies with the current development plan policies and objectives and is not at odds with the proper planning and sustainable development of the area in so far as the zoning objectives are concerned.

9.3.2 The second concern raised in respect of the road at this location, was the impact the proposal would have on existing road network. A section of this road from Caragh Court in the direction of Ploopluck bridge is currently single lane with a cycle and footpath. This road is currently a cul-de-sac and beyond Caragh Court provides access to a number of dwellings with independent accesses off this road. There is also a crèche/child care facility located along this one way section. The applicant is proposing to create a “pinch-point” to the west of the entrance serving the crèche where traffic will yield to on- coming vehicles. I do not consider that the proposal is such that would result in a traffic hazard. The “pinch-point” will help reduce the speed of vehicles as they pass the child care facility. It is also considered that as the lands to the north of the appeal site are developed alternative access routes will be provided for residents thus alleviating any congestion that may arise at peak time. A traffic impact assessment was submitted with the application and has been noted by this Inspector. Predicted traffic distribution and development flows for the peak hours have been indicated and is considered to be within an acceptable range. The appeal site is located within walking distance of the town centre and given the proposal to enhance pedestrian and cycling permeability through the site it is considered that residents would be encouraged to use alternative modes of transport. The Transportation Management Section of the Local Authority had no objections to the further information subject to conditions.

9.3.3 Specific Roads Objectives With regard to the Roads Objectives identified in the development plan for lands in the vicinity of the appeal site, I refer the Board to Map ref. 14.1. There are two road objectives identified that are of particular relevance to this appeal as follows:

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RP02 To construct a road from the boundary of the Local Area Plan at the Canal Harbour area, via Northwest Quadrant Masterplan Lands to connect with the Millennium Park Link Road.

RP03 To provide a new road from Caragh Road (in the vicinity of Ploopluck Bridge) via zoned lands to end at the boundary of the Northwest Quadrant Masterplan Lands.

9.3.4 The proposal in question involves the delivery of sections of both of these roads in so far as they relate to the application site. The RP02 section of the road is being provided to the northern portion of the site running in an east- west direction and thereby ensuring that a continuation of the road can occur as the adjoining lands are developed. This road will provide a link back to Millennium Park.

9.3.5 Map 7.1 and Map 14.1 provides an indicative layout of this road which is shown from the south-west pocket of the site in close proximity to the Ploopluck Bridge to the boundary of the residentially zoned lands with the lands that are zoned “M” Future park/Green Belt. Approximately 50% of the road as identified in RP03 on the map is provided for as per the development proposal. It is noted that the applicant does have control over lands to the north of the appeal site and lands to the east of the appeal site. I would comment that the road is not provided for in accordance with the location in Map 14.1. However, this line was indicative only as clearly set out in the development plan. The applicant has provided the location of the road in the south-west section of his lands as per the development plan (the area which the residents claim was reserved as open space). I am of the view that the development plan objective RP03 is clear and expressly provides that this new road will be from Caragh Road in the vicinity of the Ploopluck Bridge. The layout as proposed as it pertains to the RP03 road objective is such that essentially provides the link from the Caragh Road to the northwest quadrant lands and notwithstanding reference to previous history files (which predate the development plant) I consider that the proposal complies with the development plan objectives in this regard.

9.3.6 Third parties have raised concerns about the order of priority for these roads claiming that the RP02 road should be constructed first. I consider that all objectives set out in the development plan are of equal importance unless there is an express provision otherwise. Section 7.8.4 Road Programme Objectives states that “it is an objective to carry out a number of specific transportation projects during the Plan period….” There is no specific reference to any of the specific road objectives taking precedence. As stated, the applicant is providing the section of both of these roads in so far as he can PL.73.242895 Page 35 of 56 An Bord Pleanála

on lands within his ownership at this location. It is set out that the residents linked the logic of prioritizing RP02 over RP03 with the transport strategy set out in section 7.3 of the development plan. I am unclear how such a conclusion can be reached as this section sets out that “the plan seeks to improve the safety, capacity and efficiency of an integrated transportation infrastructure in Naas in accordance with national, regional, county and local policy. It also involves recognition of the shifts towards public transportation, walking, cycling and of the land use responses needed to ensure efficiency, economic returns on investment, minimal environmental impact and strengthening the quality of life in the town”.

9.3.7 Conclusion Chapter 7 of the Naas Town Development Plan sets out that the aim is to “promote ease of movement within and access to Naas, by integrating sustainable lands use planning and a high quality, integrated transport system, to support improvements to the road, rail, and public transport network together with cycleway and pedestrian facilities and to provide for new and improved transport facilities within Naas in a manner which is consistent with proper planning and sustainable development”. The proposed development does provide for vehicular, cycling and pedestrian movements. Section 7.7.2 of the development plan deals with Distributor roads and relief roads and it is set out that the primary function of Ring Roads in Naas is to divert through traffic away the town centre and to improve the public realm while also contributing to an efficient transport network in the town. I would also consider that the delivery of the RP02 and RP03 road objectives will ensure that lands within this area are opened up for development whilst providing good access routes within and through the lands in question thereby satisfying the overall aim of the development plan to ensure ease of movement within and access to Naas at this location. The proposal is considered to comply with the development plan objectives.

9.4.0 Osberstown Waste Water Treatment Plant Upgrade 9.4.1 Introduction One of the primary grounds of appeal pertains to the capacity of the Osberstown waste water treatment plant (wwtp) and the status of its upgrade. Naas is part of the Upper Liffey Valley Regional Sewerage Scheme, which also serves the towns of Clane, Newbridge, Sallins, Kill, Johnstown, Prosperous, Kilcullen, Suncroft, Athgarvan, Brownstown and the Curragh Camp. There is a longstanding issue of inadequate capacity at the waste water treatment plant in the Kildare Region. These capacity problems relate, firstly, to the Osberstown Waste Water Treatment Plant (OWWTP) and, PL.73.242895 Page 36 of 56 An Bord Pleanála

secondly, to the effluent conveyance network (principally the sewer pipes and pumping stations) feeding into the WWTP.

9.4.2 The status of the upgrade of the treatment plant (from 80,000 p.e.to 130,000 p.e.) and the effluent conveyance network was subject of discussion at an oral hearing held in 2009 in respect of File Ref. No. PL.73.232688 - a housing development for 128 dwellings off Tipper Road in Naas. During the course of this hearing and as cited in that Inspector’s report, the treatment plant was noted as running in region of 2000-3000 P.E. over-capacity. It was also noted that there were extant permissions that were awaiting connection to the plant at that time. The Minister of Environment on 27th June 2013 announced that he had given approval to Kildare County Council to seek tenders for the upgrade and expansion of the wastewater treatment plant at Osberstown. The contract is being funded under his Department’s Water Services Investment Programme 2010-2013. This contract is part of Phase 3 of the Upper Liffey Valley Sewerage Scheme and will provide for the upgrade and expansion of the wastewater treatment plant at Osberstown. The Minister noted that two network contracts for the scheme are also included in the Water Services Investment Programme as contracts to start and these are at detailed design stage.3 Clearly the upgrade has been long anticipated with time-frames for the upgrade being postponed. It was in this context that the Section 132 notice was issued.

9.4.3 Timeframe for delivery of upgrade The Planning Authority set out in their response to the S132 notice submitted to the Board 25th June 2014 that the contract for the upgrade of the wwtp is currently in the process of being awarded. Irish Water expects this process to be completed in July 2014 and the contract awarded thereafter. The First Party has indicated in his response to the Board (dated 17th July 2014) that the contractor BAM has commenced work on site for upgrade of the Osberstown wwtp. The capacity of the wwtp is to be upgraded to 88,000 p.e. (phase 1) within six months of the start date. It is also worth noting that Irish Water has published a list of current capital programmes (enclosed as an Appendix) and the Liffey Valley Sewerage Scheme is listed as “in construction”. Therefore, the actual status of the scheme has changed from when the application was first lodged with the Planning Authority and indeed from when the Section 132 notice was issued and the Planning Authority’s response to this notice in that there is now considered to be a reasonable time-frame for the delivery of the upgraded plant.

3 Press Release, Department of Environment website

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9.4.4 Phasing of treatment plant upgrade The Planning Authority confirmed that the current loading fluctuates from a low of 45,743 to a high of 83,188 p.e. recorded in April 2014. Therefore I consider that once the first phase is complete there will be a surplus capacity of 4812 p.e. from the current highest loading. Regard should also be given to the current extant permissions. The response to the S132 notice indicates that the Kerry Group Service International are currently constructing a Global Technology and Innovation centre at Millennium Park and will be the only “constructed” development which will be awaiting connection to the upgraded plant. No loading capacity details for this development have been submitted. The Planning Authority set out that there are 2,637 units permitted in the catchment. The response set out that 843 units remain to be built in development which have already commenced and have no restriction regarding the wwtp. Of the remaining 1,794 units, 781 units are specifically restricted to the upgrade of Osberstown WWTP. A further 770 units are restricted by conditions relating to local foul network issues. In essence, it is considered that the Phase 1 upgrade of 8,000 p.e. in reality only provides a capacity of 4812p.e. given the current maximum loading on the plant. Using the occupancy levels set out in the Regional Planning Guidelines for the GDA 2010-2022 of 2.58 and applying this to permitted housing units of 2637 this gives rise to a p.e. of 6803 resulting in a deficient in the system of 1991p.e. by the end of Phase 1.

9.4.5 The proposed upgrade is a three phase project that is to run concurrently. Therefore, whilst it is possible that there may be some capacity to cater for a small number of housing units in Phase 1, I consider that there would be adequate capacity in Phase 2 to cater for this development in its entirety. The time-frame for the entire upgrade is indicated by the Planning Authority to be 26 months from award of contract. Given that the upgrade is now under construction as set out in the Irish Water 2014-2016 Proposed Investment Programme, it is considered that there will be capacity by mid-2016. Having regard to the extent of other infrastructural works to be completed by the applicant i.e. roads and open space provision it is considered that the upgrade would be completed if not nearing completion should a permission for these houses be implemented.

9.4.6 Strategic Reserve The development plan sets out that it is the policy of the Council to upgrade the Osberstown wwtp to 130,000 p.e. and to reserve and allocate 20,000 p.e. of that capacity to development that yields long term sustainable employment. The Planning Authority was requested to clarify if any such developments had been permitted that were considered to fall within this reserve allocation. Full

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details including reference numbers for the files were requested. Three developments were identified as falling under this strategic reserve as follows: 1. Kerry Group Services International development 2. Esso Ireland for construction of a service station and 94 bedroom hotel 3. William Neville Sons Ltd. For a shopping centre No details or reference numbers was submitted by the Planning Authority. From details available online, the Kerry Group application involves the construction of a global technology and innovation centre of c. 24,968sq.m. and pursuant to site inspection is well under construction. The Esso Ireland application appears to be a development permitted under File ref. 08/656 which was granted an extension of duration in April 2015 until 2019. The shopping centre application for William Neville and sons along Main Street Sallins was permitted under File Ref. 04/1823 and was granted an extension of duration under File Ref. No. 10/1248 and this permission is due to expire 13/12/2015. Having regard to the fact that the upgrade works to the treatment plant are now under way, I do not consider it necessary to comment further on the strategic reserve as it is considered that adequate capacity will be available for the housing development by 2016.

9.4.7 Waste Water Discharge (Authorisation) Regulations 2007 The Section 132 to the Planning Authority required the Planning Authority (Item 5) to provide details of an assessment as required under Section 43 and 44 of the Waste Water Discharge (Authorisation) Regulations 2007 as to the adequacy of wastewater collection and disposal facilities to cater for the development proposed. The Planning Authority did not respond to this request but rather outlined additional details of smaller developments that have been permitted e.g. infill developments. With regard to this particular issue it is considered that as the waste water treatment plant is currently being upgraded that there is minimal threat to the deterioration in biological quality in receiving waters a matter that will in any event be subject to license from the EPA.

9.5.0 Flood Risk Assessment 9.5.1 Flood Risk Assessment Report submitted by First Party A site specific flood risk assessment prepared by IE Consulting was submitted with the application. The survey describes the existing local hydrology, land use and drainage patterns of the site. It is submitted that the drainage channels and ditches connect to a tributary of the Naas stream which converges with the main channel of the Naas stream approximately 2.2km down gradient of the proposed development site at Osberstown. The report indicates that there is a branch of the Grand Canal located directly adjacent to the full length of the southern boundary of the proposed development site and PL.73.242895 Page 39 of 56 An Bord Pleanála

that on the day of walk over that the site was firm underfoot and well drained with no evidence of ponding or recent flood inundation. It is set out that the primary flood risk to the proposed development site can be attributed to fluvial flood event in the tributary of the Naas stream possibly impacting and influencing water levels in existing drainage channels and ditches which are located within and adjacent to the proposed development site. The report sets out that based on the findings of the screening assessment which has been undertaken for the particular site, and considering the proximity of the tributary of the Naas stream to the proposed development site, this flood risk assessment is required to proceed to Step 2 – scoping assessment.

9.5.2 With regard to hydraulic model simulation the report sets out that a total channel length of approximately 810m between Point A to just downstream of the R445 road culvert (Point C) along the tributary stream watercourse channel was modeled. A peak flow in the tributary stream watercourse of 1.39m3/s (inclusive of climate change factor) corresponding to the predicted 100-year return period flood volume, was used as the critical flow parameter. The results indicate that in consideration of a 100 year and 1000 year fluvial flood event in the tributary stream watercourse the proposed development site is located within Flood Zone C therefore the flood risk to the proposed development site is considered low.

9.5.3 Assessment of Flood Risk Having regard to the details set out in the flood risk assessment report regarding the risk of flooding from the tributary stream I would generally be satisfied that the risk of flooding is low. The residents’ concerns would appear to stem from the proximity of the Grand Canal to the appeal site. In this regard the levels of the Canal are higher than the levels of the site generally. The appeal site falls from south-east to the north-west (away from the Canal). I would comment that pursuant to inspection, the lands closer to the Grand Canal were noted as being typical of what you would associate with a flood plain. There was no evidence of flooding or ponding at time of inspection. A site investigation carried out by IGSL to determine the Ground Water level reported no water at 3.8m below ground level. The surface water storages requirements of each catchment were designed for a 1 in 100 year rainfall event. The flood risk assessment report submitted by the applicant indicates that “a flood risk assessment undertaken by Waterways Ireland has determined that the flood risk from the Grand Canal is considered to be extremely low”. A Preliminary Flood Risk Analysis Report published by Waterways Ireland in July 2011 (enclosed as Appendix for Board) indicates that water is carefully managed throughout the system and that all locks are inspected regularly to ensure that the water management regime is in order. Section 4.4 of the report identifies the potential for future floods detailing that PL.73.242895 Page 40 of 56 An Bord Pleanála

the greatest risk is in Edenderry and Tullamore. Waterways Ireland has provided consent to the applicant to apply for planning permission to lay a footpath and cycle track on the northern bank of the Grand Canal at Ploopluck Bridge towards the Harbour. The nearest dwelling to the Canal is approx. 57m. I am not aware of any policy in the Naas development Plan restricting the proximity of housing to the Canal. NH18 does provide for the maintenance of a suitable buffer zone between the Grand Canal and any development. The extent and composition of this buffer zone should be determined in consultation with a qualified ecologist. In all instances however a buffer of 2.5m of vegetation shall be retained along the canal bank to mitigate against pollution risks, reduce flooding potential and maintain habitat. The proposal complies with this requirement. In conclusion, having regard to the findings of the applicant’s flood risk assessment, the publication from Waterways Ireland as mentioned, and the proposed layout of the scheme it is not considered such that poses an undue risk of flooding either to the appeal site or the adjoining estates.

9.6.0 Appropriate Assessment

9.6.1 Appropriate assessment (AA) considers whether the plan or project alone or in combination with other projects or plans will adversely affect the integrity of a European site in view of the site’s conservation objectives and includes consideration of any mitigation measures necessary to avoid, reduce or offset negative effects. The requirements for AA, stems directly from Articles 6 (3) and 6 (4) of the Habitats Directive 92/43/EEC. The following are Natura 2000 sites located within a 15 kilometres radius of the appeal site:

Natura 2000 Site Distance from appeal site

Moulds Bog SAC (Site Code 002331) Approx. 7.5km west from the appeal site (as the crow flies)

Red Bog SAC (Site Code 000397) Approx. 10 km south-east of site

Poulaphouca Reservoir SPA (Site 11km south-east of appeal site Code 004063)

Pollardstown Fen (Site Code 000396) Approx. 11.3km south-west from the SAC site

Having regard to the nature and scale of the proposed development sought together with the source-pathway-receptor model, I would not consider that an

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NIS or Appropriate Assessment is necessary in this case in light of the conservation objectives for these sites. Protected species are considered further in Section 9.8.4 of this report.

9.7.0 First Party Appeal against Conditions

The First Party has appealed a number of conditions which I will assess individually for completeness:

9.7.1 Condition 15 This condition sets out that

“No attic space shall be converted for habitable accommodation without a prior grant of permission.

Reason: In order to control development and to ensure that there is adequate parking to service the development.”

The first party indicates that a number of houses are designed to have habitable space in the attic and this condition is misleading and ambiguous. House type B is designed such that it is a two storey with space in the attic area. I do not see the merit in this condition and consider that the dwellings should be able to avail of any exemptions provided for under the Planning and Development Regulations subject to the restrictions contained therein. The reason for the condition cited by the Planning Authority does not justify the need for the condition.

9.7.2 Condition 16 This condition sets out that

“No satellite dishes or other antennae shall be erected on the façade of any unit, or externally on any façade or roof of any apartment block.

Reason: In the interest of orderly development and visual amenities”

The applicant has indicated that there is no apartment blocks proposed and that the condition should refer to “houses”. I have no objection to the amendment of this condition.

9.7.3 Condition 35 and 36 relates to phasing of the development and whilst both conditions are set out hereunder I consider that one condition in respect of phasing is appropriate.

Condition 35 This condition sets out that

“Prior to commencement of the development the developer shall submit a site layout plan identifying the 11 units contained within Phase 1. The construction of the remainder of the development outside of Phase 1 shall not commence until

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(a) the upgrade of Osberstown waste water treatment plant;

(b) The construction of the Naas Town element of the network contract contained within the Upper Liffey Valley Sewerage Scheme Contract 2B has commenced.

This confirmation is to be received in writing from the Planning Authority.

Reason: To ensure proper servicing of the development and prevent pollution.

The grounds of appeal by the First Party indicates that while they have no objection to the generality of the condition a detailed phasing map has been submitted with the appeal. It is set out that the development has been divided into four phases, which reflects a logical development strategy for completion of the overall development. The First Party puts forward that the Planning Authority should have the discretion to permit further housing units access to the system where capacity becomes available.

9.7.4 Condition 36 This condition is as follows:

No unit outside of Phase 1 (11 units) shall be occupied on site until:

(a) The proposed upgrade of Osberstown Waste Water Treatment Plant has been completed and commissioned;

(b) The Naas Town element of the network contract contained within the Upper Liffey Valley Sewerage Scheme Contract 2B has been completed and commissioned.

This confirmation is to be received in writing from the Planning Authority

Reason: To ensure proper servicing of the development and prevent pollution.

This condition specifically requires that occupation of the remaining units would be dependent on the commissioning of both the wwtp and also the Naas Town element of the network contract contained in the Upper Liffey Valley Sewerage Scheme Contract 2b. It is unclear when the Upper Liffey Valley Sewerage Scheme Contract 2b will be commissioned. In any event, it is considered that the wording of this condition is reasonable. Development on the remaining units as per previous condition 35 was permissible once the network contract had commenced however occupation is dependent on the commissioning of the network.

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Having considered the applicant’s grounds of appeal in respect of Condition 35 and 36, and having regard to the constraints in the current waste water treatment plant as already discussed in this report and the upgrade that is under construction, it is considered reasonable that the permission be permitted on a phased basis. It is considered that no unit in Phase 1 should be occupied pending the commissioning of the waste water treatment plant upgrade Phase 2. The remaining units should be permitted to be developed once the upgrade of the Upper Liffey Valley sewerage Contract Network Contract 2b has commenced.

9.7.5 Condition 54 The wording of this condition was as follows:

“Within 8 weeks from the date of grant of this permission, or if agreed in writing with the Planning Authority before development commences, the applicant and any other person with an interest in the land to which the application relates, shall complete an agreement with the Planning Authority concerning the development of the land in accordance with the objectives of the Naas Town Development Plan 2011-2017 and the Housing Strategy 2011-2017 which require the provision of 20% Social and Affordable Housing in accordance with Part V of the Planning and Development Act 2000. No development shall commence prior to written agreement with the Planning Authority.

Reason: To provide for social and affordable housing and to promote social integration and having regard to the policies/objectives of the Kildare Local Authorities Housing Strategy 2011-2017 as contained in the Naas Town Development Plan 2011-2017.

The grounds of appeal relates to the time-frame for agreement with this condition. The applicant has stated given the changes proposed by Government in relation to, for example, housing and the type and phasing of the proposed development that the timeframe is too short. Whilst it is acknowledged that the Government were reviewing Part V provisions and implementation no definitive timeframe has been given for such review. It is considered that any condition in relation to social and affordable housing should be subjected to agreement as per the standard current provisions. In this regard, the Board’s standard condition requires such a condition to be agreed prior to commencement of development however that the default referral back to the Board should agreement not be reached is eight weeks from date of Order. It is considered that this is reasonable.

9.7.6 Condition 59 This condition is as follows:

“The applicant/developer to pay to Naas Town Council the sum of €732,032.50 being the appropriate contribution to be applied to this PL.73.242895 Page 44 of 56 An Bord Pleanála

development in accordance with the Development contribution Scheme adopted by Naas Town Council on 7th September 2011 in accordance with Section 48 of the Planning and Development Act 2000 as amended. The amount payable under this condition shall be fully index- linked from the date of the grant of permission. Payments of contributions are strictly in accordance with Paragraph 17 of Development Contribution Scheme adopted by Naas Town Council on 7th September 2011.

Reason: It is considered reasonable that the development should make a contribution in respect of public infrastructure and facilities benefiting development in the area of the Planning Authority.”

It is submitted by the applicant that the Council has acted outside their remit of the legislation. Reference is made to apportionment of contributions and the level of general contributions. In this regard it is submitted that the condition failed to take into account the fact that 20% of the units would be required for social and affordable houses. I consider this ground of appeal to be contradictory taking into account the arguments put forward by the applicant to the condition relating to Part V. In any event, the Planning Authority has indicated in their response that a reduction would be allowable where such units are provided. Pending an agreement under Part V such a reduction would be considered premature.

9.7.7 It is also put forward by the applicant that a reduction in the order of €90,000 should be permitted as Section 18(k) of the scheme provides “a reduction of 50% on water element only of development contribution charges will apply where planning permission has been granted to residential developments which includes the provision of a Rain Harvesting System where such provision is in accordance with BS 8515:2009.” It is set out that as the applicant is proposing a rain harvesting system he should be entitled to a reduction. The Planning Authority has responded by stating that once the system has been approved as part of the planning application process credit will be given as set out in the contribution scheme which is a 50% reduction on the water element of the charge only. I would comment that since January 2014 Irish Water has assumed responsibility for the collection of any water/waste water service charges and therefore these should not be applied. Therefore, I do not consider that there are reductions that can be made as part of this appeal but that this is a matter for Irish Water.

9.7.8 The applicant also contends that given the quantum of public open space being provided, along with the cycleways and walkways that he has been asked to provide as part of the proposed development that an allowance should be made by way of levy reduction to the levies sought. It is submitted

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that a 50% reduction on the recreational and amenity levy is a reasonable allowance. Having regard to the provisions of the Development Contribution Scheme and in particular Section/Paragraph 18 it is not considered that a reduction is applicable. Therefore, the full recreational amenity is applicable in this instance.

9.7.9 The applicant has also requested that the inclusion of the condition that “payments of contributions are strictly in accordance with Paragraph 17 of Development Contribution Scheme adopted by Naas Town Council on 7th September 2011” be omitted. The reason is that paragraph 17 (d) of the Scheme provides that 50% of contributions due with regard to permission for multi-unit (greater than 20 units) residential developments shall be payable on submission of commencement notice….” It is set out that as Phase 1 only includes 11 units that it is grossly unfair to expect the developer to pay 50% of the levy applicable for 60 houses. The Planning Authority has responded by stating that the applicant would only pay the 50% based on the number of units indicated in the commencement notice which would be 11 units for Phase 1. I would consider that the imposition of the Board’s general condition is such that addresses the concerns of both the First Party and the Planning Authority.

With regard to contributions payable the roads, recreational and amenity and community contributions are applicable and are calculated as follows:

Units 92-142sq.m. €5725.00 x 22 units

Units 142-185sq.m €7088.09 x 38 units

Therefore the total contributions applicable is €395,297.42

9.8.0 Other

9.8.1 Section 132 response

A third party questioned the validity of the Planning Authority’s response to the Section 132 notice. The Board received this response by fax on the 24th June 2014 and as such is considered to have complied with the timeframe specified.

9.8.2 Archaeology

I note third party concerns about the lack of archaeological condition and the reference to nearby finds. Having regard to the proximity of the site to the Grand Canal and within the urban area of Naas, I consider that an archaeological condition should be attached.

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9.8.3 Ploopluck Bridge

The Ploopluck Bridge is a protected structure (RPS Ref. NS19-061) which is located along the south-eastern boundary of the appeal site where the access road is proposed. The Naas Development Plan identifies the structure as a Single-arch rubble stone hump back road bridge over canal, c.1780, with cut- stone voussoirs, cut-stone stringcourse and cut-stone coping. Whilst the proposed road construction is not considered to impact upon the existing bridge structure, it is noted that an embankment is proposed so as to address the levels between the bridge and road. Security railings are also proposed details of which I consider require careful consideration. The Planning Authority has not raised any concerns about the proposed works. Having regard to the nature of the works it is not considered that the embankment is such that would impinge on the character or setting of the existing bridge. Neither the Heritage Officer nor the Conservation Officer expressed any concerns about the impact of the proposal on the protected structure. All details in respect of finishes/materials to be used should be subject to the written agreement of the Planning Authority to ensure that the character of the structure is not unduly impacted upon.

9.8.4 I would draw the Board’s attention to the provision of Article 18 of the Planning and Development Regulations 2010 as amended whereby a notice published in accordance with article 17 (1) (a) shall be published in a newspaper approved for this purpose in accordance with sub-article (2), shall contain as a heading the name of the planning authority to which the planning application will be made and shall state – (d ) (iii) where the application relates to development would consist of or comprise the carrying out of works to a protected structure or proposed protected structure, an indication of that fact. The proposed works involve the construction of a new wall that is to tie in with the existing protected structure Ploopluck Bridge. The Board may wish to seek revised notices.

9.8.5 Ecological Impact Assessment

An ecological impact assessment was submitted with the application. Otter surveys were carried out in April 2013. Otter spraint was detected at two locations considered to be weeks old. A follow up survey did not reveal any further evidence of otter and it was concluded that it was unlikely that this part of the canal is regularly utilised by otter. No evidence of kingfisher was recorded. Bat surveys were also undertaken with bats recorded flying along the canal from west to east. The results indicate that the canal and associated habitat are used as a commuting corridor. The results of the bat surveys PL.73.242895 Page 47 of 56 An Bord Pleanála

indicate that the canal and associated hedgerow comprise an invaluable foraging and commuting corridor for bat species in the locality. The survey indicates that the peak of activity in August likely coincides with the emergence of newly reared offspring and feeding mothers. A breeding bird survey was under taken and identified 19 species of which 18 were observed to be breeding in the vicinity of the site. No Annex I habitat was identified as being located within the site. Bats – a protected species - appear to use the site as a commuting route to the Canal and it is considered that the proposal would not have a detrimental impact on the commuting of bats to the canal. A linear park is proposed along the Canal boundary which will help preserve its ecological value and also provides the buffer either side of the canal required so as not to generally impact on otters. A number of mitigation measures that should be employed during construction are set out in the ecological impact assessment report. Such measures should be carried out in full. Having considered the findings of the ecological impact assessment and having regard to the characteristics of the site, it is considered that the proposal is not such that would have a detrimental impact on any protected species.

9.8.5 EIS

The EIA Directive requires that an environmental assessment be carried out by the competent national authority for certain projects that are likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location, before development consent is given. The proposed development does not fall within a class of development specified in Schedule 5 which exceeds a quantity, area or other limit specified in that Schedule. The proposed development is not considered to be sub-threshold. The third parties have set out that the proposal would have significant effects on the environment and thus an EIS is required. I do not consider that an EIS is required in this instance. Sufficient information is provided with the application and the appeal documentation to allow a comprehensive assessment of the effects on the environment.

9.8.6 Taking in Charge

Third parties have raised concerns about the lack of compliance by the developer with previous permissions. Whilst this maybe the case, the Planning Authority has recommended a grant of permission in this instance and there is no indication that section 35 of the Planning and Development Act, refusal of planning permission for past failures to comply has been invoked. It is considered that taking in charge issues are a matter for the local authority.

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I would draw the Board’s attention to the condition attached hereunder relating to payment of a security bond pending taking in charge of services. Whilst Irish Water has assumed responsibility for water services, it is my view that the Planning Authority will remain the facilitator for taking in charge of all services and as such reference to water-mains and drains is therefore made in the condition regarding the security bond.

10.0 CONCLUSION

The proposed development is for a residential development on lands zoned for such purposes in the Naas Town Development Plan 2011-2017. The proposal is considered to generally accord with the provisions of the development plan and is not such that would be injurious to the existing residential amenity of the area or would give rise to a traffic hazard. The proposal is considered to accord with the Specific Roads Objective identified in the development plan. Given that the waste water treatment plant upgrade is currently underway it is considered reasonable that the development would be permitted to proceed on a phased basis subject to an occupancy condition. The proposal subject to conditions would generally accord with the proper planning and sustainable development of the area.

11.0 RECOMMENDATION

It is recommended that permission for the proposed development be granted for the following reasons and considerations and subject to the conditions attached hereunder:

REASONS AND CONSIDERATIONS

Having regard to the land-use zoning objectives for the site in the Naas Town Development Plan 2011-2017, the design and layout of the proposed residential development in conjunction with the established character and pattern of development of the area it is considered that the proposed development is such that accords with the policies and objectives of the development plan for the area and would not be injurious to the visual or residential amenities of the area. The proposal would not give rise to a traffic hazard. Given that the Osberstown waste water treatment plant upgrade is under construction it is not considered that the proposal would be prejudicial to public health. The proposal, subject to the conditions hereunder, would therefore in accordance with the proper planning and sustainable development of the area.

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CONDITIONS

1. The development shall be carried out and completed in accordance with the plans and particulars lodged with the application as amended by the further plans and particulars submitted on the 13 day of November 2013 including the mitigation measures contained in the Ecological Impact Assessment report except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with the planning authority, the developer shall agree such details in writing with the planning authority prior to commencement of development and the development shall be carried out and completed in accordance with the agreed particulars.

Reason: In the interest of clarity.

2. The development shall be carried out on a phased basis. Phase 1 shall consist of:-

(a) the construction of 11 residential units as indicated on plan submitted to the An Bord Pleanála on 7th day of July 2014;

(b) the delivery of the roads forming part of the Road Objective RP02 and RP03 in so far as they relate to the appeal site; and

(c) the delivery of the linear park in its entirety.

No residential unit in Phase 1 shall be occupied pending the commissioning of the Phase 2 upgrade Osberstown waste water treatment plant. Written confirmation of the commissioning of Phase 2 upgrade shall be obtained from the planning authority prior to the occupation of the units.

Commencement on subsequent phases of development shall be subject to the written agreement of the Planning Authority and construction on these units shall only be permitted once the work on the Naas Town element of the network contract contained within the Upper Liffey Valley Sewerage Scheme Contract 2B has commenced. Occupation of these remaining units shall not be permitted prior to the commissioning of this project.

Reason: In the interests of orderly development and public health.

3. Details of the materials, colours and textures of all the external finishes to the proposed dwellings and boundaries of the site including the embankment adjacent the Ploopluck Bridge, shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. PL.73.242895 Page 50 of 56 An Bord Pleanála

Reason: In the interest of visual amenity.

4. Water supply and drainage arrangements, including the attenuation and disposal of surface water, shall comply with the requirements of the planning authority for such works and services.

Reason: In the interest of public health.

5. (a) All foul sewage and soiled water shall be discharged to the public foul sewer.

(b) Only clean, uncontaminated storm water shall be discharged to the surface water drainage system.

Reason: In the interest of public health.

6. The internal road network serving the proposed development shall comply with the detailed standards of the planning authority for such road works.

Reason: In the interests of amenity and of traffic and pedestrian safety.

7. Footpaths shall be dished at road junctions in accordance with the requirements of the planning authority. Details of the locations and materials to be used in such dishing shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development.

Reason: In the interest of pedestrian safety.

8. Public lighting shall be provided in accordance with a scheme, details of which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. Such lighting shall be provided prior to the making available for occupation of any house.

Reason: In the interests of amenity and public safety.

9. All service cables associated with the proposed development (such as electrical, telecommunications and communal television) shall be located underground. Ducting shall be provided by the developer to facilitate the provision of broadband infrastructure within the proposed development. All existing over

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ground cables shall be relocated underground as part of the site development works.

Reason: In the interests of visual and residential amenity.

10. All rear gardens shall be bounded by solid timber panelling fencing, 2 metres in height, to the written satisfaction of the planning authority.

Reason: In the interests of residential and visual amenity.

11. Revised plans indicating the preservation of the hedgerow on the site and protection measures to ensure its preservation and its incorporation into open space in such a manner as to ensure its value as a nesting habitat is protected shall be submitted to, and agreed in writing with, the planning authority prior to the commencement of development.

Reason: To ensure the protection of existing features of ecological value for local wild birds.

12. No satellite dishes or other antennae shall be erected on the front façade of any dwelling unit. Reason: In the interests of orderly development and visual amenities.

13. Proposals for an estate/street name, house numbering scheme and associated signage shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. Thereafter, all estate and street signs, and house numbers, shall be provided in accordance with the agreed scheme. No advertisements/marketing signage relating to the name(s) of the development shall be erected until the developer has obtained the planning authority’s written agreement to the proposed name(s).

Reason: In the interests of urban legibility.

14. The area of public open space shown on the lodged plans shall be reserved for such use and shall be contoured, soiled, seeded, and landscaped in accordance with the detailed requirements of the planning authority. This work shall be completed before any of the dwellings are made available for occupation.

Reason: In order to ensure the satisfactory development of the public open space areas and their continued use for this purpose.

15. Prior to commencement of development, the applicant or other person with an interest in the land to which the application relates shall enter into an agreement PL.73.242895 Page 52 of 56 An Bord Pleanála

in writing with the planning authority in relation to the provision of social and affordable housing in accordance with the requirements of section 96 of the Planning and Development Act 2000, as amended, unless an exemption certificate shall have been applied for and been granted under section 97 of the Act, as amended. Where such an agreement is not reached within eight weeks from the date of this order, the matter in dispute (other than a matter to which section 97(7) applies) may be referred by the planning authority or any other prospective party to the agreement to the Board for determination.

Reason: To comply with the requirements of Part V of the Planning and Development Act 2000, as amended, and of the housing strategy in the development plan for the area.

16. Site development and building works shall be carried only out between the hours of 08.00 to 19.00 Mondays to Fridays inclusive, between 08.00 to 14.00 on Saturdays and not at all on Sundays and public holidays. Deviation from these times will only be allowed in exceptional circumstances where prior written approval has been received from the planning authority.

Reason: In order to safeguard the residential amenities of property in the vicinity.

17. The developer shall facilitate the archaeological appraisal of the site and shall provide for the preservation, recording and protection of archaeological materials or features which may exist within the site. In this regard, the developer shall:-

(a) notify the planning authority in writing at least four weeks prior to the commencement of any site operation (including hydrological and geotechnical investigations) relating to the proposed development, and

(b) employ a suitably-qualified archaeologist prior to commencement of development. The archaeologist shall assess the site and monitor all site development works.

The assessment shall address the following issues:-

(i) the nature and location of archaeological material on the site, and

(ii) the impact of the proposed development on such archaeological material.

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A report containing the results of the assessment shall be submitted to the planning authority with any application for permission consequent on this grant of outline permission. Details regarding any further archaeological requirements (including, if necessary, archaeological excavation) prior to the commencement of construction work shall be determined at permission consequent stage.

Reason: In order to conserve the archaeological heritage of the area and to secure the preservation (in-situ or by record) and protection of any archaeological remains that may exist within the site.

18. The construction of the development shall be managed in accordance with a Construction Management Plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. This plan shall provide details of intended construction practice for the development, including:

(a) Location of the site and materials compound(s) including area(s identified for the storage of construction refuse; (b) Location of areas for construction site offices and staff facilities; (c) Details of site security fencing and hoardings; (d) Details of on-site car parking facilities for site workers during the course of construction; (e) Details of the timing and routing of construction traffic to and from the construction site and associated directional signage, to include proposals to facilitate the delivery of abnormal loads to the site; (f) Measures to obviate queuing of construction traffic on the adjoining road network; (g) Measures to prevent the spillage or deposit of clay, rubble or other debris on the public road network; (h) Alternative arrangements to be put in place for pedestrians and vehicles in the case of the closure of any public road or footpath during the course of site development works; (i) Details of appropriate mitigation measures for noise, dust and vibration, and monitoring of such levels; (j) Containment of all construction-related fuel and oil within specially constructed bunds to ensure that fuel spillages are fully contained. Such bunds shall be roofed to exclude rainwater; (k) Off-site disposal of construction/demolition waste and details of how it is proposed to manage excavated soil; (l) Means to ensure that surface water run-off is controlled such that no silt or other pollutants enter local surface water sewers or drains.

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A record of daily checks that the works are being undertaken in accordance with the Construction Management Plan shall be kept for inspection by the planning authority.

Reason: In the interest of amenities, public health and safety.

19. Construction and demolition waste shall be managed in accordance with a construction waste and demolition management plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. This plan shall be prepared in accordance with the “Best Practice Guidelines on the Preparation of Waste Management Plans for Construction and Demolition Projects”, published by the Department of the Environment, Heritage and Local Government in July 2006. [The plan shall include details of waste to be generated during site clearance and construction phases, and details of the methods and locations to be employed for the prevention, minimisation, recovery and disposal of this material in accordance with the provision of the Waste Management Plan for the Region in which the site is situated.].

Reason: In the interests of sustainable waste management.

20. Prior to commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an insurance company, or other security to secure the provision and satisfactory completion and maintenance until taken in charge by the local authority of roads, footpaths, public open space, watermains, drains and other services required in connection with the development, coupled with an agreement empowering the local authority to apply such security or part thereof to the satisfactory completion or maintenance of any part of the development. The form and amount of the security shall be as agreed between the planning authority and the developer or, in default of agreement, shall be referred to An Bord Pleanála for determination.

Reason: To ensure the satisfactory completion and maintenance of the development until taken in charge.

21. The developer shall pay to the planning authority a financial contribution of €395,297.00 (three hundred and ninety five thousand two hundred and ninety seven euro) in respect of public infrastructure and facilities benefiting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority in accordance with the terms of

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the Development Contribution Scheme made under section 48 of the Planning and Development Act 2000. The contribution shall be paid prior to the commencement of development or in such phased payments as the planning authority may facilitate and shall be subject to any applicable indexation provisions of the Scheme at the time of payment. The application of any indexation required by this condition shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to the Board to determine.

Reason: It is a requirement of the Planning and Development Act 2000 that a condition requiring a contribution in accordance with the Development Contribution Scheme made under section 48 of the Act be applied to the permission.

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Joanna Kelly

Inspectorate

11th September 2014

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