An Bord Pleanála

Inspector’s Report

Development

House and effluent treatment unit at Knocknahila More South, Mullagh, , .

Planning Application

Planning Authority: Clare County Council

Planning Authority Register Reference: 10/1084

Applicant: Sean Tubridy

Type of Application: Permission

Planning Authority Decision: Grant

Planning Appeal

Appellant(s): Francis & Monica Killeen

Type of Appeal: Third Party

Observer(s): None

Date of Site Inspection: 19 th October, 2011

Inspector: Kevin Moore

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1.0 APPLICATION DETAILS

There is a third party appeal by Francis and Monica Killeen against a decision by Clare County Council to grant permission to Sean Tubridy for the construction of a house, installation of an effluent treatment unit and provision of an entrance at Knocknahila More South, Mullagh, Milltown Malbay, County Clare.

The applicant is the stated owner of the 2.1 hectare site upon which it is proposed to construct a three bedroom bungalow. The house would have a stated floor area of 157 square metres and would be served by a well water supply and a waste water treatment system. The application form stated that the applicant owns the land and wishes to acquire permission for the house for one of his children or to sell.

An objection to the proposal was received from Francis and Monica Killeen. The grounds of the appeal reflect the concerns raised.

Following this submission, the applicant’s agent submitted to the planning authority that the proposed dwelling was “For applicant’s own residence”.

The reports to the planning authority were as follows:

An Taisce submitted the dwelling is not for the applicant’s own residence but to sell or to pass to one of his children. It was also submitted that new regulations from the Department of the Environment are not recommending any one-off dwelling in remote areas without services. Assessment of the effects of the individual and cumulative impacts of entrances onto the road was requested.

The Environmental Scientist submitted that the information presented in the site assessment report shows that there is a concentration of drains, a relatively high water table and poor permeable clay soils in the area. It was further stated that the water course which adjoins the site is a tributary of the Annageeragh River, the quality of which needs to be addressed. It was concluded that, considering the numerous surface water receptors and the poor soil characteristics, it is not proven that the site can safely treat and dispose of the waste water arising from the development.

The Planner noted the report of the Environmental Scientist and acknowledged the third party objection. It was submitted that the applicant had stated in the application form that the dwelling was to be for sale, for letting and other occupancy, as well as being a place of residence and holiday home. The unsolicited information stating the proposed occupancy is for the applicant’s own residence was also noted. The Planner stated the applicant currently owns a house in Coore. Notwithstanding this, it was considered reasonable to permit a house subject to an occupancy condition, having regard to the house being for the applicant’s residency and the site being outside an area of special control. The unsuitable site conditions for waste water disposal were noted and a refusal ______PL 03.239505 An Bord Pleanala Page 2 of 11 on public health grounds was recommended. The issue of vehicular access was seen to require clarification and the poor condition of the private roadway was acknowledged. A refusal of permission was recommended for two reasons relating to the development being prejudicial to public health and endangering public safety by reason of traffic hazard, together with a failure to demonstrate sufficient legal interest to carry out works to improve the roadway.

Following this report an extension of time was sought and approved. After the time elapsed the Planner again recommended that permission be refused for the two reasons.

A report was then prepared by the Council’s Chemist who stated that the site characterisation report indicated suitable T and P results and that the drainage characteristics around the site showed compromised drainage in the vicinity. It was submitted that, if the measures presented by the applicant are implemented and the system proposed is installed and managed, there will not be any impact on local water quality. A schedule of condition was attached.

The Planner reported again and acknowledged the Chemist’s report. A grant of permission was then recommended subject to conditions.

On 7 th August, 2011, Clare County Council decided to grant permission for the development subject to 11 conditions. Condition 2 required the house to be first occupied as a place of permanent residence by the applicant and required the house to be for permanent occupation only. Condition 3 prohibited commencement of construction until the planning authority was satisfied the proposed well can provide an adequate water supply. Condition 6 set out the requirements in relation to the roadside boundary and entrance.

2.0 SITE DETAILS

2.1 Site Inspection

I inspected the appeal site on 19 th October, 2011 and photographs taken on that date are appended at the back of the report.

2.2 Site Location and Description

The site of the proposed development is located in a remote rural area approximately 8km south east of the village of Quilty in West Clare. It is accessed from the minor local public road network via a private forestry road and then off this road via a short overgrown track which leads to a gate into the land that forms the site. The site comprises an undulating field, enclosed by native hedgerow. It is characterised by swathes of marshy ground along its western and northern parts, where the land slopes away to open drains/streams. The location proposed for the house and proposed effluent treatment ______PL 03.239505 An Bord Pleanala Page 3 of 11 system is on slightly more elevated ground. The land uses in the vicinity comprises marginal agricultural lands and forestry. Housing in the wider area lies some 350 metres or more to the west of the site and adjoins, or is in the vicinity of, the public road network.

2.3 Clare County Development Plan 2011-2017

Rural Settlement Strategy

Objectives include:

CDP 3.8 – It is an objective to ensure that the countryside continues to play its role as a place to live, work and visit having careful regard to its carrying capacity and environmental sensitivity.

CDP 3.12 – It is an objective, within parts of the countryside outside of the ‘Areas of Special Control’, to permit an application for a single house by persons who seek a dwelling as their principal private residence and will therefore contribute to the social and economic well being of the area.

Water Supply and Wastewater Services

Objectives include:

CDP 8.2 – It is an objective that development that would have an unacceptable impact on the water environment, including surface water and groundwater quality and quantity, designated source protection areas, estuarine, coastal transitional waters, river corridors and associated wetlands, will not be permitted.

2.4 Planning History

I have no record of any previous planning application or appeal relating to this site.

3.0 THIRD PARTY APPEAL

The grounds of the appeal may be synopsised as follows:

• The applicant does not have a housing need and has no legitimate reason for residence in the area. • The applicant does not enjoy sufficient legal interest to enable him to carry out site works necessary to allow the house to be safely and properly constructed and accessed.

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• The existing right of way to the applicant’s land is for a limited agricultural use and it is of insufficient width to allow safe access and to comply with planning conditions attached. • The proposal is remote from the applicant’s primary place of work and does not have access to basic services such as water supply and electricity. • The site is unsuitable for the installation of a treatment unit and percolation area. • The proposal would constitute a traffic hazard as adequate sight distance is not available on the forestry road serving the site. • There is no material reason why the planning authority’s position was reversed just before a decision was made.

A copy of the objectors’ submission to the planning authority was attached with the appeal.

4.0 PLANNING AUTHORITY SUBMISSION

The planning authority made no response to the appeal.

5.0 PROPOSER’S RESPONSE TO APPEAL

The applicant’s response to the appeal may be synopsised as follows:

• The applicant owns 96 acres in the area, which is certified organic. He owns and operates a nursery and landscaping business, established in 1997. He has applied for permission for the house to manage the farm and the nursery more efficiently and to avoid excessive travel. He is native to the area and complies with the requirement for housing need. The location of his existing house was suitable at the early stages of his business but is now too far away. The new house will be used as the principal private residence. • The proposal should be considered under the 2005-2011 Development Plan as it was in force at the time of the making of the application. The application is supported by this Plan. Even if it is considered by the 2011-2017 Plan, this gives adequate reasons to grant permission. • The right of way given by previous owners was given wholly and is not limited to one activity or another. There is sufficient area within the right of way to comply with the relevant planning condition without having to get permission from the present owners for ay works. Because it is in such good condition it will not need substantial civil works. • A water supply can easily be provided by means of an on-site borehole. Access is via a very short length of right of way. Other permissions have been granted in the vicinity for two houses on the grounds that they constituted sustainable development.

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• In relation to effluent disposal, two houses have received permission within 350 metres of the site. Furthermore, the Council’s Chemist has extensive knowledge of the area and her recommendation should not be dismissed. Also a very high level of treatment is proposed. • In relation to the issue of traffic hazard, the road is rarely used and there are extensive sightlines available. • There is no inconsistency by the planning authority. The Planner’s change of recommendation was likely the result of additional information arising from the Chemist’s site inspection and being able to see how any potential contamination could be controlled by high level treatment and strict conditions.

6.0 ASSESSMENT

6.1 I will have regard to the issues raised in the appeal under the following headings:

The Need for the Development Effluent Disposal Traffic Impact Decision of the Planning Authority

6.2 The Need for the Development

6.2.1 This is a most significant issue when determining this application. The applicant submitted with his application that the proposed house would be for sale, for letting or for another use, and stated the applicant’s children may live here in the future. He expressly chose not to select the option in the application form that stated ‘For applicant’s own permanent residence’. The appellants have submitted to the Board the applicant’s children are under 10 years old and the applicant has not refuted this. The applicant, following the objector’s submission to the planning authority, submitted a letter to the planning authority stating the occupancy of the dwelling is for the applicant’s own residence. Based upon the applicant’s own submissions received so far on this application it is very difficult to conclude what the intent is for the occupancy of this proposed house. Certainly, the applicant is not convincing on what the true intent is and there is every possibility that the proposal is speculative in nature.

6.2.2 In coming to the above conclusion, I note the following:

• The applicant has a house in Coore, Milltown Malbay. For a person who is required to drive to and from their place of work this is not a notable lengthy journey. The applicant has not demonstrated why this house, which he has occupied for some time and from which he travels to and from his business and his farm to date, is now no longer a house not suited to his needs. There is clearly no need for the applicant to have two houses. ______PL 03.239505 An Bord Pleanala Page 6 of 11

• From the appeal response, it is claimed by the applicant that he owns 96 acres in the area. There are no maps or details showing where this land is, where farm buildings are located, and how it relates to the proposed site in order to demonstrate the site selection is merited. • The land in the immediate vicinity of this site is at best marginal agricultural land, of poor quality and poorly drained. • The applicant’s business, Hawthorn Nurseries, is a significant distance to the west, with access onto a local road that links back to Regional Road R483. There is no physical association between the site for the development and this business premises.

6.2.3 In conclusion, I note the Sustainable Rural Housing Guidelines for Planning Authorities , published by the Department of the Environment, Heritage and Local Government. There is an overarching requirement for local need to be assessed by planning authorities in determining planning applications for rural housing. While I do not question the bone fides of the applicant in terms of him being from the area and employing people in the area, one must question the need for the applicant to have a second house in this area. Evidently, the Guidelines do not support the unsustainability of this. Furthermore, this site is located in an area determined in the Guidelines to be within a ‘Predominantly Dispersed Settlement Area’ and not far from an area designated an ‘Area under Strong Urban Influence’. It is not within a designated ‘Structurally Weak Area’. I would also suggest to the Board that it is not far from the Clare coastline, an area that would be highly sought after for holiday home development. In noting its location, it is important to point out that this site is not in the vicinity of any clustered settlement. Thus, the proposed development would not contribute to the enhancement or sustainability of such dispersed settlements that prevail in the area, notably to the north such as Mullagh or Quilty or to the south such as or .

6.2.4 With due regard to the above, it is reasonable to determine that the applicant has not demonstrated a need for a dwelling at this location and its development would be unsustainable.

6.3 Effluent Disposal

6.3.1 The visual assessment undertaken at the time of my inspection suggests the proposed site is highly unsuited to the treatment of effluent by an on-site private treatment plant. This site is characterised by swathes of marshy ground through the northern and western sections of the site, occupying a substantial part of the overall site area. The location chosen for the house and effluent treatment plant is a section along its east side slightly elevated over the marsh areas. The site is drained through the marsh areas to the open streams along the site’s northern and western boundaries. The northernmost stream is a tributary of the Annaghgeeragh ______PL 03.239505 An Bord Pleanala Page 7 of 11

River. The site for the structural development itself, while more elevated, was extremely wet underfoot at the time of my inspection with surface water running off it. The established vegetation was a firm indicator of the poor drainage characteristics of the soils into which it is proposed to discharge final effluent, namely there was a preponderance of soft rush throughout. The unsuitability of this site, evident from the visual inspection and the clear vulnerability of the adjoining streams to a pollution threat arising from ponding on this site, I would suggest is somewhat supported by the site characterisation report submitted by the applicant with the application and by the extent of proposed engineering to be employed to seek to achieve any acceptable level of treatment. The high vulnerability of the aquifer is also a potential concern given the intent to provide a private well supply from within the site. In a trial hole dug to a depth of 2.2 metres the water table was encountered at a depth of 1.3 metres from the ground surface, indicating the vulnerability of this site to a high water table, which one would expect given the physical and drainage characteristics of this site. The high ‘T’ values attained in the percolation test demonstrate that the percolation rate is very slow on this site and the possibility of ponding constituting a threat to the adjoining surface waters is apparent.

6.3.2 The applicant’s proposal to address the evident unsuitable site is to design a highly engineered system. This is a concern as it reinforces a reasonable conclusion that the proposed development on this site is a significant pollution threat to adjoining watercourses. The packaged wastewater treatment system will comprise a mechanical aeration system discharging to a vertical flow reed bed and finally discharging to groundwater via a sand polishing filter. An interceptor drain is to be provided up-gradient of the system to remove storm water from the polishing filter area. The measures proposed to be employed for purification and treatment of effluent are significant. Obviously with such a system it would require competent installation and high ongoing maintenance if it is intended to sustain an acceptable treatment system on this site. This very often fails to be achieved for one-off housing and I must submit at this stage that the development is likely to pose a long-term concern in relation to its impact on adjoining potentially sensitive surface waters.

6.3.3 Finally, I note the conflicting positions of the planning authority’s Environmental Scientist and the Senior Chemist. It is clear that no further proposals were provided to the planning authority during the period that elapsed between the two reports and therefore it is difficult to understand how the proposed development went from being unacceptable to acceptable. Given the poor drainage characteristics of this site, the serious challenge to seek to achieve suitable effluent treatment, and the more serious threat to sensitive surface waters at this location, it is my submission that precaution must prevail and this site should not be deemed suitable for the disposal of final effluent via a private on-site treatment unit. ______PL 03.239505 An Bord Pleanala Page 8 of 11

6.4 Traffic Impact

6.4.1 The proposed development is intended to be accessed via a private forestry road and track link (i.e. a right of way) over which the applicant has no control. This road network is extremely poor in structure and pavement. The road surfaces have deteriorated significantly in parts on the way to the right of way. The right of way itself is an overgrown and very narrow track that is weak in structure. This access to the public road network requires substantial upgrade to accommodate not alone the proposed development but also its construction. From the details provided by the appellants, it is reasonable to conclude that the applicant does not have sufficient legal interest to undertake any such works to provide adequate access. The Planner came to this conclusion in his report and the local authority at no time resolved this issue prior to its determination of the application. It is reasonable to conclude that this substandard arrangement for vehicular access would constitute an unacceptable and substandard form of vehicular accommodation for this site, notwithstanding such a road system being lightly trafficked. Another serious concern that would result from any grant of planning permission on this site would arise from the precedent set and the potential for further development to occur accessing this substandard road network. In conclusion, it is my opinion, that it would be a traffic hazard to be encouraging the use of this road network by permitting the proposal.

6.5 Decision of the Planning Authority

6.5.1 With due regard to my considerations earlier, it is my submission that the planning authority could not reasonably have determined, based upon the information before it, that the applicant had a housing need. To determine the proposal was intended to be the applicant’s principal private residence was not evident from the information in the planning application. This lack of information required clarification. Being outside an ‘area of special control’ does not bestow upon this site a pre-determined conclusion that the development is acceptable in principle because the applicant is either going to live in the proposed house, sell it, keep for some years until his children can live in it, or rent it.

6.5.2 On the issue of determining the site was suitable for the disposal of effluent, the planning authority’s conclusion was at best confused. There were conflicting reports from the Environmental Scientist and the Council’s Chemist. At no time was it made clear how the Environmental Scientist’s conclusions could be so incorrect and why they were superseded.

6.5.3 A number of conditions of the planning authority’s decision must warrant comment. My considerations on four of the attached conditions are as follows:

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- Condition 2 is an occupancy condition that requires the house to be first occupied as a place of permanent residence by the applicant. This is a somewhat meaningless condition and wholly out of kilter with the provisions of the Sustainable Rural Housing Guidelines for Planning Authorities . To comply with this condition the applicant could literally occupy the house for a day, move out and sell it. Any reasonable occupancy condition should as a minimum comply with the Guidelines’ requirement, notably within the area where the proposed development is located and notably as it is not within a ‘structurally weak’ area. - Condition 3 relating to a water supply for the development epitomises the unsustainability of the proposed development. Why the planning authority does not seek to find out that a potable supply of water can be provided for this development before it decides to grant permission for it is somewhat rash, in my opinion. Details on water quality and yield at this location are essential to know prior to any decision for a house on this site. This development could be wholly unsustainable if a borehole supply cannot be obtained. This is a basic requirement for habitation at this location and the availability of a water supply must be a pre- requisite before any decision to grant permission for a house. - Condition 6 relates to the development of the proposed entrance. This entrance cannot be provided without encroaching on the adjoining private lane, the control over which the applicant appears not to have. - Condition 9 requires that all service lines and cables servicing the proposed development are to be located underground. To comply with this condition is likely to require intrusive works on the private lane and road. The question again arises as to how this can be complied with when the applicant does not appear to have sufficient legal title to undertake such works.

6.5.4 Finally, I again note the substandard private road network which is proposed to serve this development. I further note the Planner’s reasons for refusal in the first two reports on this proposal. It was unequivocally argued that the applicant has not demonstrated sufficient legal interest to carry out works to improve this accepted substandard, narrow private road network or to have sufficient legal interest to even gain access to the site. How then can one then decide to grant permission when there has been no clarification on this important issue in order to allow the applicant to gain adequate access to his site and to be able to maintain this access to a reasonable standard? It is most unsatisfactory to conclude the proposed development constitutes sustainable development when there are inherent essential questions on the developability of a house left unanswered.

7.0 RECOMMENDATION

I recommend that permission is refused in accordance with the following:

Reasons and Considerations

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1. The proposed development is located in a rural area identified as being within a ‘Predominantly Dispersed Settlement Area’ and close to an area designated an ‘Area under Strong Urban Influence’ in the Sustainable Rural Housing Guidelines for Planning Authorities as published by the Department of the Environment, Heritage and Local Government. It is an overarching requirement for local need to be determined under the Guidelines in assessing planning applications for rural housing. It is considered that t he applicant has not demonstrated a rural generated housing need at this location in accordance with the Guidelines. Furthermore, it is considered that the proposed development would contribute to the disorderly pattern of housing development in this remote rural area, would constitute haphazard, one-off housing, would lead to demands for the uneconomic provision of further public services and communal facilities in the area, would set an undesirable precedent for similar development, and would seriously injure the amenities of this rural area. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.

2. Having regard to the soil conditions on this site and the associated poor drainage characteristics, the high water table, the proximity to an adjoining tributary of the Annaghgeeragh River, and to the dependence of the proposed development on an on-site bored well water supply, it is considered that, notwithstanding the proposed use of a proprietary effluent treatment system, the proposed development would constitute an unacceptable risk of pollution and would be prejudicial to public health.

3. The site is located on a minor private road network which is seriously substandard in terms width, pavement and structure and over which the applicant has not demonstrated a sufficient legal interest to undertake necessary works to provide and maintain adequate vehicular access to the site. The proposed development would, therefore, endanger public safety by reason of traffic hazard and obstruction of road users.

______Kevin Moore Senior Planning Inspector November, 2011.

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