An Bord Pleanála

Inspector’s Report

Development

Amendments to previously permitted residential development (Pl. Ref. 04/3688) and retention of five bedroom house at Caismeig More, Co. Galway.

Planning Application

Planning Authority: Galway County Council

Planning Authority Register Reference: 08/25

Applicant: Kevin O’Flaherty

Type of Application: Permission

Planning Authority Decision: Grant

Planning Appeal

Appellant(s): Airdeall

Type of Appeal: Third Party

Observer(s): None

Date of Site Inspection: 7th August, 2008

Inspector: Kevin Moore

______PL 07.228671 An Bord Pleanala Page 1 of 11 1.0 APPLICATION DETAILS

There is a third party appeal by Airdeall against a decision by Galway County Council to grant permission to Kevin O’Flaherty for amendments to a previously permitted residential development and the retention of a five bedroom house at Caismeig More, Furbo, Co. Galway.

The applicant is the stated owner of the 0.71 hectare site. It is proposed to carry out amendments to a residential development previously permitted under Planning Ref. 04/3688 that include alterations to the entrance, relocation of the wheelie bin store and car park at the rear, the provision of a turning head at the rear and a right of way to this, and the upgrading and relocation of the previously approved treatment plant and polishing filter. Permission is also sought to retain a three storey, five bedroom dwelling on the site. The development would be served by a mains water supply. The house to be retained is located at the western end of a terrace of residential units. The proposed treatment plant is proposed to be moved further to the rear of the site with the internal service road and proposed turning head overlapping with the siting of the previously approved percolation area. Additional wayleaves/easements along the western side have been provided to accommodate the proposal. Details provided with the application included a letter from the landowner to the west indicating no objection to the proposal and consent to use as a right of way and a further letter indicating no objection to the proposal, copy of a linguistic impact statement dating from January 2005 and associated with the previous planning application, details of the treatment plant, and trial hole tests dating from January 2007.

One objection to the proposal was received by the Council from Airdeall setting out the planning history of the site, noting that planning application 05/1992 had been withdrawn while on appeal to the Board, noting that development had proceeded on the site in accordance with the withdrawn application, and arguing that the applicant could not now seek permission to retain the one house as a consequence of the development constructed but rather should seek permission to retain the totality of development on the site. It was argued that the developer was pursuing the previously withdrawn application and that the planning authority had issued a grant of permission by mistake to the applicant following the withdrawal of the second application. Airdeall sought the provision of a proper language condition in defence of the .

The reports to the planning authority were as follows:

The Director of Services in Planning placed a memorandum on the file stating that the validity of planning application 05/1922 has been considered under the headings of ‘Adequacy of site notice/description’ and ‘Selective use of points of a previous application’. It was stated in the memo that the notice accurately describes the works to be done, that essentially 04/3688 has been completed in accordance with planning permission granted, and that any works not completed are included in the amendments referred to in 05/1922. It was stated that there is no obligation on the applicant to complete 04/3688 before seeking amendments to the permission granted or before submitting a further planning application and that all that is required is that the permission in question has not expired. It was concluded that in this respect the application is considered to be in order and that the retention of a house built without permission can be assessed as part of a valid application and likewise the proposed amendments.

______PL 07.228671 An Bord Pleanala Page 2 of 11 The Environment Engineer considered the loading rate on the sand polishing filter to be excessive, given the high P values recorded in the area and he requested a doubling of the size of the filter. A detailed layout drawing and section of the filter was requested to be provided.

In the first Planner’s report, the Planner referred to the planning history of the immediate area of the site, noted the site was within the and within the Galway Transportation and Planning Study area. The site history was referred to, noting Planning Permission 04/3688 allowed for six apartments and excluded the provision of a 5 bedroom dwelling. It was further noted that Planning Application 05/1992 was made for 6 apartments and one 5 bedroom house, that the Council decision to grant was appealed and that the application was withdrawn. It was stated that “05/1992 does not have permission”. It was further stated that a C3 was issued in error for 05/1992 by the planning authority. It was noted that the development has been constructed, that the applicant was notified that 05/1992 was not a valid permission and that, as such, the developer is now applying to retain the 5 bedroom dwelling that has been constructed. The Planner also noted that the site boundary had been altered from that originally permitted under 04/3688 and as such the applicant should have sought to retain the development and the 5 bed house on a revised site boundary. It was stated that the 6 apartments have been developed in accordance with the details approved under planning ref. 04/3688 and that this is the only valid permission on the site. Noting that the current application altered the site boundary, it was re-stated that permission to retain the entire development on a revised site boundary should have been sought.

In a second report, the Planner noted the planning history in the immediate vicinity and noted the details of the Environment Engineer’s report on effluent treatment. Noting the planning history of the site once again, the fact that there is no planning permission associated with Planning Application 05/1992, and that a grant of permission was mistakenly issued by the planning authority for this application, it was concluded that the dwelling be retained on the site, that it does not impact negatively on the amenity of the area, and that the other works are acceptable. A grant of permission was then recommended subject to conditions.

On 6 th March 2008, Galway County Council decided to grant permission for the development subject to 5 no. conditions.

2.0 SITE DETAILS

2.1 Site Inspection

I inspected the appeal site on 7th August, 2008 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 within the settlement of Na Forbacha in , a Gaeltacht area within the Galway Transportation and Planning Study area and approximately seven miles west of the city. It is located on the south side (coast side) of Regional Road No. R336. Development that has taken place to date includes the provision of the residential structures and the original private roadway and entrance proposals, as well as associated car parking areas. The site slopes north/south to close to the shoreline edge. A scheme of housing units is under development immediately east of the site and the

______PL 07.228671 An Bord Pleanala Page 3 of 11 Coast Hotel is located to the east of this scheme. There is a bungalow and the local national school to the west of the site. An Udarás na Gaeltachta industrial estate and detached housing are located on the opposite side of the regional road.

2.3 Gaeltacht Local Area Plan 2008-2014

Strategy

The goals include:

• That Muintir na Gaeltachta can continue to exist and thrive as a distinctive cultural community with access to quality infrastructure and sustainable jobs and services.

Strategic Development Principles

These include:

• A presumption against City generated residential development which is unrelated to Irish language and culture in the districts where Irish is the predominant community language. • The refusal of any development proposal which would adversely affect the Irish language of the community.

The Districts

Na Forbacha lies within the district defined as . Development is encouraged within villages in this district to support existing services and to help augment them. All new development proposals are to be determined on the degree to which they can establish a sustainable connection with the village and its services.

Residential qualification in this district requires a Language Enurement Clause to be applied on a portion of residential units in developments of two or more units. The proportion of houses to which a clause applies is to be a minimum of 80% or to the proportion of persons using the Irish language on a daily basis, in accordance with the latest published Census whichever is the greater. The clause is to be for a duration of 15 years from the date of first occupancy of the unit. The remainder of units is to be made available to local people, people employed, self-employed or creating employment in the area, returning emigrants and immediate family members of emigrants and migrants.

Table 5.4(a) shows that 39.4% of the population of Na Forbacha speak Irish on a daily basis.

Note: The site is located within the Galway Transportation and Planning Study area. Na Forbacha is designated a small settlement in the Plan.

2.4 Planning History

Planning Authority Ref. 04/3688 – Permission was granted for the construction of 3 two bedroom apartments, 3 three bedroom apartments and one 5 bedroom dwelling, treatment plant and ancillary works. The site area excluded that which forms part of the current appeal

______PL 07.228671 An Bord Pleanala Page 4 of 11 site relating to the right of way along the west side of the appeal site. Condition 1(a) of the planning permission omitted the 5 bedroom dwelling to facilitate site access.

Planning Appeal Ref. 07.213600 – An application was made to Galway County Council for the construction of 3 two bedroom apartments, 3 three bedroom apartments and one 5 bedroom dwelling, treatment plant and ancillary works. The planning authority decided to grant permission for the proposal. This decision was appealed by Airdeall. The applicant withdrew the application. The Board issued correspondence to the parties acknowledging that the applicant had withdrawn the application for the proposed development.

3.0 THIRD PARTY APPEAL

The grounds of the appeal may be synopsised as follows:

• The development that has been built is in accordance with Planning Application 05/1992, an application that was withdrawn. • There is insufficient evidence to prove a housing need by the applicant to entitle him to permission for a house within 15km of Galway City. • Condition 4 of the decision of the planning authority is not protecting Irish as a community language in Furbo because it does not lay down clearly the language fluency required for those occupying the additional house permitted.

Details of the planning history of the site and the arguments made to the planning authority were submitted as part of the appeal as was the appeal made to the Board in relation to Planning Application 05/1992 that was withdrawn. It is submitted that the planning authority took almost two years to notify the developer that planning permission 05/1992 is not a valid permission, following its issuing of a grant of permission for Planning Application 05/1992 and despite its withdrawal at appeal stage. Details of the planning authority’s letter to the developer is included wherein it is stated that no planning permission exists in respect of the development currently being undertaken and requesting steps to be taken to ensure the development is in accordance with Planning Permission 04/3688. The appellant submits that in response to the planning authority’s letter, the developer admitted that the work on the site was in accordance with application 05/1992 that was withdrawn on appeal. It was noted that in 2005 the applicant’s architect had submitted revised drawings to the planning authority for six apartments only and the planning authority had issued a letter following this stating that the developer was now in compliance with condition no. 1(a) of planning permission 04/3688. It was further noted that the draft legal agreement allied to condition no. 11 of permission 04/3688, in accordance with the provisions of Section 47 of the Planning Act, referred in error to seven residential units when only six were permitted and that a further letter to the applicant’s agent referred to permission for six units only. Reference was made to the Commencement Notices submitted by the applicant and to the two phases alluded to and referring to a total of 7 units. It was repeated that the 6 apartments and one house has been developed in accordance with planning application 05/1992, i.e. the withdrawn application. It is further submitted that it is not clear what language condition is in force in relation to the development as the development that was carried out provided for 7 units and was not in accordance with planning permission 04/3688. The appellant submits that the applicant is required to make an application for retention for the whole development on the site and that the application now before the Board should be refused. Noting that it is Council policy that 80% of housing units be subject to the language restriction, Airdeall submit that it would be satisfied if five of the seven units in this case were restricted, representing 70% of the units.

______PL 07.228671 An Bord Pleanala Page 5 of 11 In the event that the Board decides to permit the development, it is requested that a more consolidated and clear condition be attached than condition 4 attached with the planning authority’s decision.

4.0 APPLICANT’S RESPONSE TO APPEAL

The response to the appeal may be synopsised as follows:

The requirement to retain the development in total

• The applicant, under the direction of the planning authority, applied for retention of the house as requested. • The planning authority accepts responsibility for mistakenly granting permission for planning application 05/1992. • The applicant has honoured the planning authority’s requests in resolving its mistaken issue of planning permission in an open and cooperative manner.

Housing need

• Airdeall has acknowledged the planning issue at hand, i.e. a one-off house not a development. • 04/3688 clearly establishes permission for the 6 apartments and a Section 47 agreement is in place in respect of this. • A housing need is not required to be substantiated. The site is within the settlement centre of Furbo. When the original application was lodged the area was within the defined settlement centre boundary. The current development plan encourages housing in designated settlements in preference to single houses in unserviced rural areas. Policy 15 of the plan now applies in place of defined settlement boundaries. The development is within the settlement centre boundary that was established by the Council in 2003, is within the development envelope of the settlement, and is within close proximity of all amenities offered. While a housing need need not be proven, the issue regarding occupancy for retention is ensured by the council in the conditions attached. At no stage did the planning authority request that the issue of housing need be addressed. • The retention of the five bedroom house is for the applicant’s personal use and was never for sale.

Adequacy of Condition No. 4

• The application relates solely to the retention of one house. Developments consist of two or more houses as defined in the County Development Plan. The Gaeltacht Plan states that enurement clauses will only be applied to developments of two or more units. • Udaras na Gaeltachta has no objection to the proposal. • Condition no. 4 requires the use of the house to be restricted to use as a house by the applicant, the applicant’s sons or daughters, or those that can demonstrate the ability to preserve and protect the language. It is not possible to increase a 100% Irish clause. • The applicant is a fifth generation local Irish speaker and qualifies in fulfilling the condition.

______PL 07.228671 An Bord Pleanala Page 6 of 11

The applicant, as part of the response, provided a detailed chronology of the planning history, activities relating to the site, payments made, confirmations relating to application 05/1992 by Galway County Council, etc. In relation to planning application 05/1992 and the grant of permission issued by Galway County Council, the applicant stated that he formulated the conclusion that the permission was granted because Airdeall had withdrawn its appeal prior to his (the applicant’s) appeal.

In conclusion, the applicant notes that Airdeall submit that the preservation of the language is of interest and that it is not seeking to have the developer demolish the building. It is submitted, thus, that as a restrictive clause has been placed on the only dwelling unit the subject of the application the decision of the planning authority must stand and Airdeall’s appeal be thrown out.

The appendices submitted with the response include the following:

• Planning history • Copy of a Section 47 agreement • Copies of Development Contribution receipts, Fire Safety Fees, Commencement Notices, water connection fees, Insurance and Loan details • Letter of withdrawal to An Bord Pleanala for Ref. 05/1992 • Correspondence from Galway County Council, including letters indicating compliance with conditions • A letter from the applicant’s Solicitor refuting the appellant’s submission

5.0 ASSESSMENT

I will consider the issues the subject of the appeal under the following headings:

The Issue of Planning Application 05/1992

In my opinion, it can only be determined that there is a dual responsibility with regard to the serious errors arising from the outcome of Planning Application 05/1992. The planning authority and the applicant must both take responsibility. I have checked the previous planning appeal relating to the application – Appeal Ref. PL 07.213600. The applicant, through his Planning Consultants, withdrew the application by letter to the Board received on 12 th September, 2005 after an appeal was received by Airdeall. The Board then issued a letter to the parties to the appeal. The planning authority was clearly and unambiguously informed that, notwithstanding any previous decision, no permission shall be granted by the authority on foot of the application. There was clearly a mistake by the planning authority following this when a grant of permission was issued by it to the applicant. The applicant had no permission for this proposed development. It appears to have taken some two years to acknowledge this error, while in the meantime a wide range of consultations and correspondence was ongoing on that proposal. Thus, the planning authority not only made a serious error, the error was compounded by either having no internal mechanisms in place to be assured that an appropriate permission existed when it was making determinations on compliance with conditions, etc. or its response to an error was at best slow. The applicant and his Planning Consultants, in my opinion, cannot seek to abdicate responsibility either. Airdeall did not withdraw its appeal. The applicant’s withdrawal of the application was acknowledged by the Board by letter dated 14 th September 2005. In this letter the Board

______PL 07.228671 An Bord Pleanala Page 7 of 11 noted that the application had been withdrawn. The applicant and his Planning Consultants could not have been more clearly informed. They received no correspondence to say that the appeal was withdrawn. To suggest that, with the planning authority issuing a final grant of permission, they were of the view that Airdeall must have withdrawn its appeal before the applicant withdrew the application is a most spurious conclusion to make. I do not accept that the applicant or the Planning Consultants would not have clarified such a blatant contradiction of correspondence arising from the Board and the County Council. Any perceived delays in regularising the development on this site lies primarily with the applicant who undertook unauthorised works.

The Nature and Extent of the Development

In my opinion, the totality of the building development on this site has been carried out in accordance with the proposals as set out in Planning Applications 04/3688 and 05/1992. Clearly, Condition 1(a) of Planning Permission 04/3688 did not allow for the retention of the five bedroom house and no permission exists for Planning Application 05/1992. The development that has been constructed on the site is otherwise in accordance with Planning Permission 04/3688. Planning Permission 04/3688 remains an outstanding planning permission. It is apparent from Condition 1(b) of this permission that site access was to be provided over the area associated with the omitted house. It is further apparent that, with the revision of the boundary on the west side of the site, access difficulties associated with the development have been overcome. I can see no difficulties with the principle of the additional house as a consequence and I note, importantly, that the appellant raises no specific development concerns in this context. The proposed development now before the Board not only includes the retention of the house but also includes permission for a range of new development that was not subject to any previous application, namely the effective widening of the site (addressing the access issue previously of concern) by the provision of a right of way and provision of a turning head, alterations to the entrance, relocation of wheelie bin store and car park, and the upgrading and relocation of a treatment plant and polishing filter. This is all new development over and above that for which permission was previously sought. In this context, I am satisfied to conclude that the application is not solely to retain that development for which permission was originally sought under Planning Application 04/3688 or under Planning Application 05/1992. Any planning concerns previously raised about the development of the additional residential structure at this location on the site have been addressed by the new proposals. I find no physical planning difficulties with the retention of the existing additional residential unit. I am satisfied to conclude that it is not necessary to determine the application for the retention of the house and for the new development proposed without such an application seeking the retention of the whole development that exists on the site, albeit that it may have been a more orderly approach to conclude with the determination of development of this site.

Protection of the Irish Language

It is clear that this issue is the appellant’s principal concern. In light of my considerations above, I am of the opinion that it is not reasonable to now seek to revisit the language condition associated with the previous planning permission issued. I note that Planning Application 04/3688 was not subject to appeal. Condition 11 of that permission sets out the language requirements for the six units permitted at that time. Regarding the current application, I note Condition 4 of the planning authority’s decision. I am satisfied to determine that the additional house can be subject to a restrictive condition which has the

______PL 07.228671 An Bord Pleanala Page 8 of 11 outcome of helping to uphold and protect the status of the Irish language in Na Forbacha by restricting occupancy to those who demonstrate the ability to preserve and protect the language. Such a condition would effectively be similar to that attached with the planning authority’s decision.

6.0 RECOMMENDATION

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

Cúiseanna agus Tuisceanna

Tá láithreán na forbartha beartaithe suite sna Forbacha, sráidbhaile a aithnítear mar lonnaíocht bheag i bPlean Forbartha Chontae na Gaillimhe atá ann faoi láthair. Meastar go mbeadh an fhorbairt seo, faoi réir na gcoinníollacha leaghtha amach thíos, ar aon dul le straitéis áitrithe na bhForbacha agus le pleanáil cuí agus forbairt inchothaithe an limistéir. Meastar freisin, ag tabhairt aire do shíomh an láithreáin sa Ghaeltacht agus do nósanna labhartha na Gaeilge sa cheantar, gur reasúnta an rud é a coinníoll a chur leis an gcead ag cur srian ar áitriú den aonad chónaithe do lucht labhartha na Gaeilge.

Coinníollacha

1. Cuirfear an fhorbairt bheartaithe i gcríoch de réir na bpleananna agus na sonraithe curtha isteach leis an iarratas, ach amháin sa mhéid gur ghá cloí leis na coinníollacha eile san ordú seo.

Cúis: Ar mhaithe le cinnteacht.

2. Déanfaidh an t-iarratasóir comhaontú leis an údarás pleanála, faoi réir forálacha Alt 47 den Acht um Pleanáil agus Forbairt 2000, le cinntiú go mbeidh an teach cónaithe atá cheadú anseo curtha ar fáil mar áit cónaithe do dhaoine a bhfuil líofacht sásúil i dteanga na Gaeilge taispeánta don údarás pleanála acu. Tógfar na nithe seo leanas in áireamh, go háirithe, i bhforálacha an chomhaointaithe seo:

(a) Beidh an srian seo i bhfeidhm ar feadh tréimhse 15 bliana ó dháta an ordaithe seo.

(b) An caighdeán líofachta atá ag teastáil is é an caighdeán atá ag teastáil on Roinn Gnothaí Pobail, Tuaithe agus Gaeltachta chun deontas a fháil faoi Scéim Tithíochta na Gaeltachta agus bainfidh sé seo le ceann an teaghlaigh.

Cúis: Chun oidhreacht teangan agus cultúrtha an limistéir Ghaeltachta seo a chosaint.

3. Bíodh na socraithe i gcóir soláthair draenáil ag cloí le riachtanaisí an údaráis phleanála ag baint lena leitheid de oibreacha agus seirbhísí.

Cúis: Ar mhaithe le sláinte an phobail agus chun caighdeán maith forbartha a chinntiú.

4. Íocfaidh an forbarthóir leis an udarás pleanála suim airgid mar ranníoc i leith bonneagair phoiblí agus saoráidí poiblí a théann chun tairbhe na forbartha i limistéar an údaráis pleanála agus a sholáthraítear, nó a bhfuil ar intinn go soláthrofar iad, ag an

______PL 07.228671 An Bord Pleanala Page 9 of 11 údarás áitiuil nó thar a cheann de réir téarmaí na Scéime Ranníocaí Forbartha déanta faoi Alt 48 den Acht um Pleanáil agus Forbairt 2000.

Cúis: Is riachtanas den Acht um Pleanáil agus Forbairt 2000 coinníoll a chur leis an gcead ag éileamh ranníoc de réir na Scéime Ranníocaí Forbartha atá déanta faoi Alt 48 den Acht sin.

REASONS AND CONSIDERATIONS

The site of the proposed development is located within Furbo, a village recognized in the Galway County Development Plan as a small settlement. It is considered that, subject to the conditions set out below, the proposed development would be in accordance with the residential strategy for Furbo and in accordance with the proper planning and development of the area. It is further considered that, having regard to the site being located within the Gaeltacht and to the language tradition of the area, it is reasonable to restrict the occupancy of the residential unit to Irish language speakers.

CONDITIONS

1. The proposed development shall be carried out in accordance with the plans and details submitted with the application, except as may otherwise be required in order to comply with the following conditions.

Reason: In the interest of clarity.

2. The applicant shall enter into an agreement with the planning authority, in accordance with the provisions of section 47 of the Planning and Development Act 2000, to ensure that the dwelling hereby permitted shall be restricted to occupation by persons who have demonstrated to the planning authority a reasonable fluency in the Irish language. The agreement shall, in particular, provide that:

(a) The restriction shall apply for a period of 15 years from the date of this order.

(b) The standard of fluency required shall be the standard required by the Department of Community, Rural and Gaeltacht Affairs for the purposes of obtaining a grant under the Gaeltacht Housing Scheme and shall relate to the head of the household.

Reason: In order to protect the language and cultural heritage of this Gaeltacht area.

3. Drainage provisions shall comply with the requirements of the planning authority for such works and services.

Reason: In the interest of public health and to ensure a proper standard of development.

4. The developer shall pay to the planning authority a financial contribution in respect of public infrastructure and facilities benefitting development in the area of the planning authority that is provided or intended to be provided by or on behalf of the authority

______PL 07.228671 An Bord Pleanala Page 10 of 11 in accordance with the terms of the Development Contribution Scheme made under Section 48 of the Planning and Development Act 2000.

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.

______Kevin Moore Senior Planning Inspector September, 2008.

______PL 07.228671 An Bord Pleanala Page 11 of 11