An Bord Pleanála Inspector’s Report Application for Review under SECTION 261A of PLANNING AND DEVELOPMENT ACT 2000 as amended Address: Porthall, Lifford, Co. Donegal Owner: Ian McKean Operator: Ian McKean Parties Seeking Review: Ian McKean Observers: None Application: Review of Determinationunder Section 261A(2)(a) and Section 261A(4)(a) Planning Authority: Donegal County Council Planning Authority Ref: EUQY45 Inspector: Gillian Kane Date of Site Visit: 14/05/13 QV05E.0220 An Bord Pleanála Page 1 of 8 1.0.0 INTRODUCTION 1.1.1 This is an application under Section 261A (6)(a)for a review of a determination pursuant to a decision made under Section 261A(4)(a) of the Planning and Development Acts 2000-2010, made by the Owner/Operatorof a sand quarry atPorthall, Lifford, Co. Donegal 1.2.0 To assist the Board in its assessment this report is accompanied by photographs taken on day of site visit, copies of aerial photographs from various sources including myplan.ie (Department of Environment, Community and Local Government) and Ordnance Survey Ireland. 2.0.0 SITE LOCATION AND DESCRIPTION 2.0.1 The subject quarry refers to a 4ha area on the bed of the River Foyle, which is part of the River Finn SAC. 2.0.2 The River Foyle runs to the east of lands belonging to Porthall House. Porthall House is located approx. 6km north of Lifford in eastern Donegal. A narrow, unsurfaced track runs north from the house and outbuildings, leading to a sandy river bank. The narrow track opens at two points, into areas of flat ground with sandy deposits. The northern of the two open areas accommodates a small dredging machine with pump leading to the River Foyle. To the west of the site is agricultural land. 3.0.0 PLANNING AUTHORITY’S DETERMINATION AND DECISION 3.1.1 Determination The Planning Authority determined, pursuant to section 261A(2)(a) of the Planning and Development Acts 2000-2010, that: • Development was carried out after 26 February 1997 which was not authorised by a permission granted under Part IV of the Act of 1963 prior to 26 February 1997, which development would have required, having regard to the Habitats Directive, an Appropriate Assessment, and that such an assessment was not carried out. The Reasons for the Determination are as follows: • Development at the quarry may have commenced operation post 1 st October 1964, and in addition no planning permission was ever granted. The registration of the quarry under section 261 of the Planning and Development Act, 2000 was fulfilled. • In this instance the Planning Authority is satisfied that as quarrying activity took place post 26 th February 1997 that an appropriate assessment was required. QV05E.0220 An Bord Pleanála Page 2 of 8 3.2.0 Decision Following the determination under subsection (2)(a) the Planning Authority decided pursuant to subsection (4)(a) of Section 261A that: • The quarry commenced operation on or after 1 st October 1964 but no permission was granted in respect of the quarry under Part III of this Act or Part IV of the Act of 1963 The owner/operator is notified that the Planning Authority intends to issue an Enforcement notice in relation to the quarry under section 154 of the Planning and Development Acts requiring the cessation of the operation of the quarry and the taking of such steps as the Authority considers appropriate. 4.0.0 MATTERS CONSIDERED BY THE PLANNING AUTHORITY 4.0.1 Assessment / Determination Report : No site inspection carried out. No documentary evidence submitted to support pre 63 claim. No planning permission has been granted and quarry has not fulfilled the requirements of s261 of the Planning and Development Act. Quarry operations involve extraction of sand from the river bed on a 4ha site. Operation is likely to result in a deterioration of the water quality on the River Finn. 4.0.2 Environmental Impact Assessment : Mandatory EIA not applicable. The report notes that the stated area of excavation of 4ha is difficult to confirm as it involves the removal of sand from the River Finn. River Finn is an SAC and the extraction of sand is considered to have significant impacts on the designation. Likely significant impacts are considered to be on human beings, traffic flows & management, visual amenity & general landscape character, historical & archaeological features, noise & vibration, soils & geology, air & climate and ecology. The report states that: • there will be a large change in environmental conditions, • the effect will be particularly complex, • it is likely to extend over a large area • there is potential for trans-frontier impacts • valuable or scarce features or resources will be affected • there is a risk that environmental standards will be breached, • protected sites will be affected and that the effect will continue for a long time, possibly irreversibly. 4.0.3 AA Screening : The report notes that the quarry is located within the River Finn SAC which is dependent on good water quality. The report states that there will be significant impacts on the following: QV05E.0220 An Bord Pleanála Page 3 of 8 • Loss of habitat, • Disturbance, • Water quality, Likely impacts are noted on species population density and fragmentation. 5.0.0 GROUNDS OF REVIEW 5.1.0 First Party Review 5.1.1 The Board is requested to review the determination of Donegal County Council only. 5.1.2 It is stated that the requirements of s261 of the Planning and Development Act have been fulfilled. 5.1.3 It is submitted that the quarry was commenced in 1920 with the current operator taking over in 1960. Letters from the current owner / operator and his relative confirms quarry use in the 1950’s. 5.1.4 It is stated that in 1990 a foreshore licence was sought by Mr McKean. It is submitted that the letters (submitted with the review request) show that the nature of the activity carried out is the removal in the summer of winter deposition and that such activity is beneficial to the river by reason of silt reduction. It is submitted that the scale of activity is unchanged for decades – the quarry does not move or enlarge as the raw material that is removed is replaced every year. It is submitted that the quarry has continually operated in the same manner since it was first established, to the present day. 5.1.5 It is submitted that pre-64 authorisation exists in this case and therefore they quarry should not have come within the s261A legislation and the notice should be dismissed. 5.1.6 It is submitted that if the Board is minded that the determination is correct, that the issuing of a 4(a)notice is incorrect. The quarry is pre 64 and has fulfilled the requirements of s261 of the Planning and Development Act and therefore is eligible to seek an application for substitute consent. 5.1.7 The review request is accompanied by the following: • a copy of the s261 registration application form, • correspondence from the Foyle Fisheries Commission, Department of the Marine, Department of Finance and Donegal County Development Team regarding the foreshore licence, QV05E.0220 An Bord Pleanála Page 4 of 8 • details of the operations on site as outlined by a member of Donegal County Council • copy of licence to discharge Trade Effluent to the River Foyle • correspondence from the Department of the Environment, Heritage and Local Government • copy of Statement of Accounts for Commercial Rates 6.0.0 PLANNING AUTHORITY’S RESPONSE TO REVIEW 6.1.0 Additional information has been submitted which appears to substantiate the pre 64 authorisation of the quarry. 7.0.0 LEGAL STATUS 7.1.0 Planning Permission 7.1.1 None on File 7.2.0 Licences 7.2.1 1986/1102: In 1986, Mr McKean was granted a licence to discharge effluent to the River Foyle subject to 5 no. conditions. 7.2.2 51/15/59: In 1990, Mr McKean was granted a foreshore licence to remove 50,000 tons of sand / gravel from the foreshore for a term of 3 years 7.3.0 Other 7.3.1 A prohibitory notice was served on Mr McKean in respect of the removal of material from the River Foyle in 1999, after which he was directed to apply for a foreshore licence. 8.0.0 SECTION 261 REGISTRATION 8.0.1 reg. ref. QY45 : The Planning Authority was requested to submit details of the registration of the quarry under s261 of the Planning and Development Act 2000. Notwithstanding that the quarry assessment report states that the quarry was not registered, there is no dispute that the quarry was registered under s261 of the Planning and Development Act. 8.0.2 The application form submitted for the registration of a quarry under section 261 of the Planning and Development Acts 2000, provides the following details: • quarry commenced in 1921 with current operator commencing in 1960, despite never being defined as a quarry, QV05E.0220 An Bord Pleanála Page 5 of 8 • total area of quarry: 4ha • area of extraction: 4ha • Process: sand is extracted from river by pump, de-watered and removed • pumping at rate of 50m 3 per hour , with licence 8.0.3 Further information was requested from the applicant as follows: • site layout details indicating the full landholding, location of storage facilities, means of storm drainage and outlet points, and entrance arrangements serving the quarry • details of the means of extraction from the river bed, • details of noise and dust emissions. The applicant responded to the request in 2006, providing a map and stating that there are no dust emissions and that sand is extracted from the river bed by a small dredger and pumped ashore.