Ecological Assessment of Proposed Retention of Infill by Purcell Brothers Ltd. at Newrath, Kilculliheen, Co. Kilkenny
View of the Site looking southeast towards the southern reedbed
For: An Bord Pleanála re. PL 10.219971 Final Report - June 2007
By: Coveney Wildlife Consulting Ltd www.ecoveney.ie
Address: 56 Castle Farm, Shankill, Dublin 18. E-mail: [email protected]. Phone: 00 353 (0)1 272 0622. Mobile: 00 353 (0)87 276 5158. Fax: 00 353 (0)87 5276 5158.
Company No. 336952. VAT No: IE 6356952W. Directors: John Coveney, BSc PhD, Dip EIA Mgmt; Marian O’Sullivan BSc, PhD.
Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 1 Summary In December 2005, Purcell Brothers Ltd. applied to Kilkenny Co. Council for planning permission to retain infill on about 1.96 ha of a 5 ha Site at Newrath, Kilculliheen, Co. Kilkenny. The Application (05/1973) also provided for the rearrangement of the remaining wetlands on the Site, the landscaping and planting of a boundary embankment, and the provision of 0.5ha on the other side of the adjacent N9 as compensatory wetland. The retention on the Site of about 0.6 ha of infill had already been approved in 1998 (97/1053).The Site has industrial zoning in the Kilkenny County Development Plan. Objections to the Co. Council were lodged by Mr Brendan McCann of Waterford City and the National Parks and Wildlife Service (NPWS). In February 2006, the Co. Council requested further information from the Applicant. This was submitted in April & August 2006 and included reports on hydrology, ecology and migratory birds. NPWS withdrew their objection in August 2006, subject to the inclusion of ecological conditions for habitat creation In September 2006, the Co. Council decided to grant planning permission, subject to 15 conditions, of which 10 related to ecology. This was appealed to An Bord Pleanála (the Board) by Mr. Brendan McCann on ecological and other grounds in October 2006 (PL 10.219971). Later that month, the appeal was supported by an observation from Ms Rita Canney. In November 2006, the Applicants and the Co. Council responded to the Appeal and the Observation and the Co. Council also granted a waste permit for the retention and rearrangement of the infill. The Board invited An Taisce to make a submission in January 2007 and the Board then invited the Applicant, the Appellant, the Council and the Observer to respond to the An Taisce submission in February 2007. The Board’s Inspector completed his report in March 2007 and recommended that permission should granted subject to essentially the Co. Council ecological conditions. In April 2007, the Board commissioned Coveney Wildlife Consulting Ltd. to review the ecological issues relevant to this appeal and to assess the likely ecological impacts, with regard to the proposed mitigation measures, the proposed additional infilling and the proposed wetland creation. Recommendations were sought on the need for further information and conditions that should attach to a grant of planning permission, or reasons for a rejection of planning permission The approximately triangular 5 ha Site is located close to the northern bank of the River Suir about 2.5 km northwest of Waterford City. It was formerly part of the floodplain of a tributary of the River Suir, the River Blackwater. However, it was separated from the Blackwater by an embankment when this tributary was diverted in the 19th or early 20th centuries to enter the Suir some 700 m further upstream. It adjoins the current N9 going out of Waterford towards Dublin, the Waterford to Dublin railway line, the River Blackwater, and it is within 10m of the Lower River Suir Special Area of Conservation (code 2137). The Grannyferry NHA (code 833) is also close by. During the 1990’s the Site was largely reedbed apart from the embankment on its southwestern boundary. By 2002, 2.54 ha in the centre of the Site was infilled with inert material, most of it unauthorised. This left 1.27 ha of reedbed at the southern end of the Site and 0.14 ha of reed and sedge swamp at the northern edge of the Site . The remainder of the Site is occupied by 0.75 ha of hedgerow on the embankment on the southwestern boundary and 0.29 ha of grassland. The current area of infill is between 1.17 and 2.8m above the Ordnance Datum (OD), the wetlands are between 0.5 and 1.0 m OD, and the embankment is about 3.5m OD. The detailed review of the ecological review in the Board’s file highlighted the following ecological points:- 1. After rearrangement of the existing wetlands on the Site, the proposed development would result in the net infill of additional 0.25 ha of wetlands, leaving 2.79 ha for future development and 2.21 ha as ecological areas, mainly wetlands and the existing embankment from the River Blackwater. 2. The main wetland, of 0.62 ha, would be at the northern end where it would have more biodiversity because of the brackish influence of the adjacent tidal Blackwater on the ground water underneath it. The existing southern reedbed of 1.27 ha would be lost to infill and a wetland canal. 3. A nearby 0.5 ha area of existing wetland on the Applicant’s lands would be transferred to the Co. Council for integration with compensatory wetlands associated with the N25 Waterford Bypass.
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4. The Applicant stated that the proposed development would enhance ecological status and connectivity of the nearby areas designated for nature conservation. 5. Ecological field work was done in May, September & October 2005 and in April, July & August 2006 as well as a desk study. The Site’s remaining wetlands are of local conservation value. 6. The enlargement of the northern wetland was predicted by the Applicant to have a moderate positive effect while the creation of the wetland canal and the enhancement of the embankment hedgerow would have minor positive effects. The infill of the southern wetland would have a minor negative effect because its ecological quality is degraded – this was later reassessed to no significant effect. No adverse affects were predicted on migratory birds or on the nearby SAC or NHA nor their characteristic species because of the lack of hydrological interactions with these areas. 7. Several good practice measures would be taken to avoid pollution effects during construction. 8. Mr Brendan McCann objected to the proposal and the substantial points made by him were, essentially, that the Site is part of the ecosystem complex in the area, the Site’s industrial zoning did not take account of its ecology, permission would be contrary to Development Plan and objectives to protect ecology, and that the ecological impacts of the unauthorised infill to past and present wetlands on the Site were not adequately assessed. The NPWS objection noted the Site’s location adjacent to the SAC, the illegal infill, and sought more hydrological information. NPWS also objected to the loss of the southern wetland and the overall permanent loss of wetland as contrary to the National Biodiversity Plan 9. After the submission of additional ecological information by the Applicant, the NPWS withdrew their objection subject to the imposition of conditions on habitat creation for butterflies, moths and dragonflies and on the design of the enlarged northern wetland. 10. The Co. Council’s decided to grant planning permission, subject to 10 ecological conditions, which were essentially the inclusion of the Applicant’s and the NPWS’s ecological mitigation measures except for the addition of planting and landscaping conditions. Co. Council reports in the Board’s file detail their success in obtaining a conviction against the Applicant in connection with the unauthorised infill, the imposition of substantial landfill levies and site investigation costs, their belief that the measures they have taken would satisfy national and EU authorities, and that they do not believe that the removal of the unauthorised infill would be warranted. Two months after its decision to grant planning permission, the Co. Council granted a Waste Permit (WMP052/2005). 11. Following the Appeal and the supporting Observation there were two additional submissions by the Applicant and the Co. Council, as well as one from An Taisce, the Appellant and the Observer. There were no substantially new ecological points in any of these submissions. 12. The report by the Board’s Inspector noted that the proposal would result in the loss of a small area of ecologically important wetland but recommended against the removal of the unauthorised infill, largely in view of the Site’s industrial zoning. The inspector also noted the withdrawal of the NPWS objection and recommended that permission should be granted subject to essentially the same ecological conditions as the Co. Council. The Site and the surrounding area was visited on 24 May 2007. Observations of the Site and its and habitats and species were essentially as expected from the review of the Board’s file. However, the nearby works for the nearby N25 Waterford bypass may be encroaching on the proposed 0.5ha compensation wetland. 1.1 Principal Findings 1. The ecological information submitted was seriously inadequate because the ecological impact of the loss of wetland habitat to unauthorised infilling was not assessed. It was also inadequate because the effect of the unauthorised infill on the remaining wetlands on the Site was poorly assessed. 2. The size of the proposed compensation wetland is inadequate. Furthermore, its ecological compensation value is reduced because it is already wetland habitat.
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3. Insufficient information was submitted on the Applicant’s compensatory wetland proposal, on the N25 compensatory wetlands, and on the integration and future management of these areas. 4. The main environmental effect of the proposal would be the permanent loss of about 2.21 ha of wetland habitat that was likely to have been of considerable local importance because of its position between the Lower River Suir SAC and the Grannyferry NHA. This loss of wetland habitat is considered to contrary to the National Biodiversity Plan and EU policy on wetlands. 5. The proposed development is unlikely to adversely affect the nearby NHA and SAC except to the extent that the unauthorised infill has already removed wetlands between the two designated areas. 1.2 Recommendations Having reviewed all of the details of this case, the following ecological inadequacies were noted which would warrant a refusal of planning permission:- 1. Inadequate ecological assessment of the loss of wetland habitat due the unauthorised infill. 2. Inadequate ecological assessment of the effects of the unauthorised infill on the remaining wetland habitats on the Site. 3. Inadequate size of the proposed compensation wetland. 4. Inadequate assessment of the ecological integration of the proposed compensation wetland with the compensatory ecological measures associated with the N25 Waterford Bypass. However, I would not recommend refusal of planning permission, for the following ecological reasons:- 1. About 0.6 ha of the infill appears to be authorised by the 1998 permission. Therefore, it appears that the Applicant could not be obliged to remove this. 2. The Board’s file indicates that since the successful prosecution and the imposition of the financial levies, there has been co-operation between the Applicant, the Co. Council and the NPWS. In the event of a refusal, there would be less incentive for the Applicant to continue this co-operation. 3. There appears to be potential for full ecological compensation in nearby lands. 4. By allowing the Applicant the prospect of commercial development of the Site, subject to full ecological compensation for the unauthorised infill, there is a reasonable expectation of an ecologically satisfactory resolution of this case. 5. A refusal to grant planning permission may lead to an ecologically unsatisfactory outcome such as the continued presence of the unauthorised infill on the Site. Accordingly, I would recommend that the Board grant permission subject to the following conditions:- 1. There should be no net increase in the size of the infilled area on the Site beyond the current 2.54 ha. 2. The proposed layout of the Site should be modified in a manner similar that proposed in Appendix 3 (p. 43) to retain some of the southern wetland, to reduce the proposed enlargement of the northern wetland and to connect them by a deeper and much narrower “drain type” channel. The design of these modifications should involve professional ecological input and should be approved by NPWS and the Co. Council before construction commences. Construction should also be supervised by an ecological professional with relevant habitat creation experience. To compensate ecologically for the loss of wetland habitat due to the illegal infill and after fulfilling conditions 1 and 2, the Applicant should create at least 1.76 ha of new wetland habitat, or contribute at least an additional 4.4 ha of existing undesignated wetland habitat, or provide a pro-rata mix of the two. These wetlands should, if possible, be adjacent to the SAC/NHA complex in the area.
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1 SUMMARY...... 2 1.1 PRINCIPAL FINDINGS...... 3 1.2 RECOMMENDATIONS...... 4 2 TABLE OF CONTENTS ...... 5 2.1 LIST OF FIGURES ...... 6 2.2 REPORT STATUS...... 6 2.3 DISCLAIMER...... 6 3 INTRODUCTION ...... 7 3.1 OBJECTIVES OF THIS REPORT ...... 7 4 STUDY AREA & METHODS...... 9 4.1 SITE DESCRIPTION ...... 9 4.2 METHODS...... 10 5 REVIEW OF ECOLOGICAL INFORMATION ...... 10 6 SITE VISIT ...... 11 6.1 ROUTE TAKEN ...... 11 6.2 OBSERVATIONS DURING THE SITE VISIT ...... 13 7 ASSESSMENT & RECOMMENDATIONS ...... 14 7.1 INTRODUCTION & LIMITATION OF SCOPE TO ECOLOGICAL ISSUES ...... 14 7.2 ADEQUACY OF THE ECOLOGICAL INFORMATION SUBMITTED ...... 14 7.3 ASSESSMENT OF THE LIKELY ENVIRONMENTAL EFFECTS OF THE PROPOSED DEVELOPMENT...... 15 7.4 APPROPRIATENESS OF THE PROPOSED MITIGATION MEASURES...... 15 7.5 EFFECTS OF THE PROPOSED ADDITIONAL LANDFILLING OF THE SITE ...... 16 7.6 REVIEW OF THE PROPOSED REINSTATEMENT OF THE SWAMP AREA ...... 16 7.7 FURTHER INFORMATION REQUIRED ...... 16 7.8 RECOMMENDATIONS...... 17 8 APPENDICES...... 19 8.1 APPENDIX 1. DETAILED REVIEW OF ECOLOGICAL INFORMATION ...... 19 8.2 SAC SITE SYNOPSIS FOR LOWER R. SUIR, 17 MAY 2005 ...... 19 8.3 PLANNING APPLICATION TO CO. COUNCIL, 16 DEC 2005...... 19 8.4 APPLICANT’S SITE STRATEGY & ACCOMPANYING MAPS, 16 DEC 2005...... 20 8.5 APPLICANT’S ENVIRONMENTAL REPORT, 16 DEC 2005...... 21 8.6 IARNRÓD ÉIREANN SUBMISSION TO CO. COUNCIL, 4 JAN 2006...... 23 8.7 OBJECTION BY APPELLANT TO CO. COUNCIL, 26 JAN 2006...... 23 8.8 OBJECTION BY NPWS TO CO. COUNCIL, 27 JAN 2006 ...... 24 8.9 REQUEST FOR FURTHER INFORMATION BY THE CO. COUNCIL, 14 FEB 2006 ...... 24 8.10 APPLICANT’S ADDITIONAL INFORMATION SUBMISSION – HYDROLOGY, 25 APR 2006...... 25 8.11 APPLICANT’S ADDITIONAL INFORMATION SUBMISSION – ECOLOGY, 25 APR 2006...... 26 8.12 APPLICANT’S MIGRATORY BIRDS REPORT, 11 AUG 2006 ...... 28 8.13 WITHDRAWAL OF OBJECTION BY NPWS, 31 AUG 2006...... 29 8.14 CO. COUNCIL’S DECISION TO GRANT PLANNING PERMISSION (05/1973), 8 SEP 2006...... 29 8.15 APPEAL SUBMISSION BY B. MCCANN, 4 OCT 2006 ...... 30 8.16 OBSERVATION SUBMISSION BY R. CANNEY, 27 OCT 2006 ...... 31 8.17 APPLICANT’S WASTE PERMIT FROM CO. COUNCIL, 7 NOV 2006...... 32 8.18 RESPONSE TO BOARD BY APPLICANTS ON THE APPEAL, 8 NOV 2006 ...... 33 8.19 CO. COUNCIL’S RESPONSE TO BOARD ON THE APPEAL, 8 NOV 2006 ...... 34 8.20 AN TAISCE SUBMISSION TO THE BOARD, 30 JAN 2007 ...... 35 8.21 RESPONSE TO BOARD BY THE OBSERVER ON AN TAISCE SUBMISSION, 23 FEB 2007 ...... 35
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8.22 RESPONSE TO BOARD BY THE APPELLANT TO AN TAISCE SUBMISSION, 25 FEB 2007 ...... 36 8.23 RESPONSE TO BOARD BY APPLICANTS ON THE AN TAISCE SUBMISSION, 28 FEB 2007...... 36 8.24 RESPONSE TO BOARD BY CO. COUNCIL ON THE AN TAISCE SUBMISSION, 28 FEB 2007 ...... 37 8.25 INSPECTOR’S REPORT TO BOARD, 10 MAR 2007 ...... 38 APPENDIX 2. TERMS & ABBREVIATIONS...... 39 APPENDIX 2. SCIENTIFIC NAMES OF SPECIES IN THIS REPORT...... 42 APPENDIX 3. SITE AREAS AT NEWRATH, KILCULLIHEEN, CO. KILKENNY ...... 43 9 REFERENCES ...... 44
2.1 List of Figures
FIGURE 1. ROUTE OF THE VISIT TO THE SURROUNDING COUNTRYSIDE ON 24 MAY 2007...... 11 FIGURE 2. ROUTE OF THE VISIT TO THE SITE AND ADJACENT AREAS ON 24 MAY 2007 ...... 12 FIGURE 3. VIEW OF THE PROPOSED COMPENSATION WETLAND ...... 12 FIGURE 4. VIEW OF AN ECOLOGICAL AREA NORTH OF THE NEW N9 ROAD ALIGNMENT ...... 13
2.2 Report Status Final reports by Coveney Wildlife Consulting Ltd. are issued in Adobe’s Acrobat format, also known as portable document format (PDF). These PDF reports are protected against modification. They can easily be read and printed on most computers using Adobe’s Acrobat Reader, which can be downloaded for free from www.adobe.com. The status of the report, e.g. draft or final is given on the title page and on the page headers. Versions or sections of the reports may be issued in other formats, e.g. Microsoft Word or Excel, for editing or incorporation into e.g. Environmental Impact Statements, but only the protected PDF version is definitive. Report Author: John Coveney. The recommended citation for this report is:- “Coveney Wildlife Consulting. 2007. Ecological Assessment of Proposed Retention of Infill by Purcell Brothers Ltd at Newrath, Kilculliheen, Co. Kilkenny (PL 10.219971). Report for An Bord Pleanála.” 2.3 Disclaimer This ecological report has been prepared in good faith in the light of the author’s professional experience of nature conservation and ecological assessment since 1992. The conclusions of this report may have legal, planning or design implications in relation to the interpretation of the environmental, ecological and planning law in force in the EU and in the Republic of Ireland. This report makes no claim to offer any legal or planning interpretations. Any references to legal and planning requirements and official guidance on these requirements are provided for information only. The relevant body of law includes but may not be restricted to the EU Birds Directive (79/409/EEC), the EU Habitats Directive (92/43/EEC) and the EU EIA Directives (85/337 & 97/11). In the Republic of Ireland, these directives are principally implemented via the European Communities (Natural Habitats) Regulations, 1997-2005, the European Communities (Conservation of Wild Birds) Regulations (many dates), the 2000 Wildlife Amendment Act and the 2000 Planning & Development Acts and its Amendments and Regulations.
Coveney Wildlife Consulting Ltd. 19/12/2007 6 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 3 Introduction In December 2005, Purcell Brothers Ltd. (the Applicant) applied to Kilkenny Co. Council (the Co. Council) for planning permission to retain infill on about 1.9 ha of a 5ha site at Newrath, Kilculliheen, Co. Kilkenny (the Site). The Application (P.A. Reg. Ref. 05/1973) also provided for the rearrangement of the remaining wetlands on the Site, the landscaping and planting of a existing embankment on the Site’s boundary, and the provision of 0.5ha on the other side of the adjacent N9 as compensatory wetland. The Application was made to facilitate future development of the Site in accordance with its industrial zoning in the Kilkenny County Development Plan (14) This future development would be subject to a separate planning application. The current Application was accompanied by an Environmental Report that was prepared by Malone O’Regan Environmental Services Ltd (Malone O’Regan) with the assistance of a number of ecological specialists led by Biosphere Environmental Services. It was also accompanied by a Site Strategy that was prepared by Murray Ó Laoire Architects.
Objections to the Co. Council were lodged by Mr Brendan McCann (the Appellant) and by the National Parks and Wildlife Service (NPWS). In February 2006, the Co. Council requested further information from the Applicant. This was submitted in April 2006 and included hydrological and ecological reports that were prepared by Malone O’Regan. The Applicant made a further submission to the Co. Council in August 2006 in relation to migratory birds. In August 2006, the NPWS withdrew their objection to the Application, provided ecological conditions about habitat creation were included in the planning permission.
In September 2006, the Co. Council decided to grant planning permission to the Applicants. This was subject to 15 conditions, of which 10 related to ecology. In October 2006, this decision was appealed to An Bord Pleanála (the Board) by Mr. Brendan McCann on ecological and other grounds (PL 10.219971). Later that month, the appeal was supported by an observation from Ms Rita Canney (the Observer).
In November 2006, the Applicants and the Co. Council, at the Board’s invitation, responded to the Appeal and the Observation. The Co. Council also granted a waste permit for the retention and rearrangement of the infill on the Site. The Board invited An Taisce to make a submission in January 2007 and it then invited the Applicant, the Appellant, the Council and the Observer to respond to the An Taisce submission in February 2007. The Board’s Inspector completed his report in March 2007 and recommended upholding the Co. Council’s decision and implementing essentially the same ecological conditions. 3.1 Objectives of this Report
In April 2007, the Board commissioned Coveney Wildlife Consulting Ltd. (CWC) to address the ecological issues of relevance to this appeal, as follows:-
1. “Review the Board’s file with particular emphasis on all environmental and ecological issues raised in the submissions.
2. Assess the likely environmental aspects of the proposed development; preferably involving Site inspection. In this regard, … review:-
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2.1. the appropriateness of the proposed mitigation measures,
2.2. the proposed additional landfilling of the Site, and
2.3. the proposed reinstatement of a ‘swamp’ area beside the service station.
3. In the event that further information is considered necessary, … outline the relevant requirements.
4. If the proposed development is considered acceptable … frame appropriate conditions/mitigation measures.
5. If the proposed development is considered unacceptable … state reasons for such a consideration.”
These issues are addressed in Sections 4 to 7 of this report.
Coveney Wildlife Consulting Ltd. 19/12/2007 8 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 4 Study Area & Methods 4.1 Site Description 4.1.1 Physical Location & Boundaries
The approximately triangular 5 ha Site is located at Newrath, Kilculliheen in southernmost Co. Kilkenny close to northern bank of the River Suir. It is about 2.5 km northwest of Waterford City. The Site was formerly part of the floodplain of a tributary of the River Suir, the River Blackwater. It was separated from the Blackwater by an embankment when this tributary was diverted to enter the Suir some 700 m further upstream.
The Site is aligned approximately northwest to southeast. To the north, it adjoins the current N9 going out of Waterford towards Dublin very close to the junction with the N24 – the road to Carrick-on-Suir and Limerick. To the northeast, it adjoins the Waterford to Dublin railway line – there is a level crossing where the N9 and the railway meet next to the Site. Somewhat over a third of the southwestern boundary of the Site runs along the River Blackwater. The remainder of the southwestern boundary runs along the old channel of the Blackwater, which separates the Site from an area of scrub and wetland habitats along the River Suir. The short southeastern boundary of the Site is close to a disused spur off the Waterford to Dublin railway. This crossed the River Suir on a now partly dismantled bridge.
4.1.2 Nature Conservation Areas
Although largely a wetland until 1997, the Site itself never had any nature conservation designations or other amenity designations. It was zoned as industrial in the 2002 County Development Plan (14), as it was in the 1986 and 1994 Plans. The Co. County Council’s planning report (p. 29) did note that the Site was inside an area of high amenity but the significance of this is unclear – it does not appear to have been referred to elsewhere in the Board’s file.
There are two areas designated for nature conservation close to the Site. It is within 10-20 m of the Lower River Suir Special Area of Conservation (SAC code 2137) on its southwestern boundary. This large SAC (see p. 19) extends from Thurles in Co. Tipperary to the confluence of the Suir with the Rivers Barrow/Nore at Cheekpoint in Co. Waterford. It also includes some tributaries of the River Suir, but not the River Blackwater. It contains several species and habitats of nature conservation importance that are listed on Annexes I & II of the EU Habitats Directive, as well as a number of bird species listed on Annex I the EU Birds Directive.
The northwestern tip of the Site is separated from the Grannyferry proposed Natural Heritage Area (NHA code 833) about 60 m across the River Blackwater. This NHA has reed swamp, marsh and wet grassland with a saline influence at the margins of the Blackwater. Meadow barley, which is protected under Flora Protection Order (FPO), grows there (1). According to the Applicant’s Environmental Report (p. 21), several other nearby areas of wetland will be protected as part of the mitigation measures for the N25 Waterford Bypass, which is currently under construction.
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4.1.3 Site Layout
Until the diversion of the River Blackwater in the 19th or early 20th century, the Site was part of the floodplain of the River Blackwater. During the 1990’s the Site appears to have been largely reedbed apart from the embankment on its southwestern boundary. By 2002, 2.54 ha in the centre of the Site was infilled with inert material. i.e. soil and gravel with some construction waste, of which 1.964 ha was unauthorised. This infilling left 1.27 ha of reedbed at the southern end of the Site (the southern wetland) and 0.14 ha of reed and sedge swamp at the northern edge of the Site (the northern wetland). The remainder of the Site is occupied by 0.75 ha of hedgerow on the embankment on the southwestern boundary and 0.29 ha of grassland.
The current area of infill is between 1.17 and 2.8m above the Ordnance Datum (OD). The wetlands are between 0.5 and 1.0 m OD, and the embankment is about 3.5m OD. There is an unauthorised septic tank and drainage outfall pipe on the Site. Both of these come from the neighbouring service station and are the subject of enforcement proceedings by the Co. Council. 4.2 Methods These involved:-
1. Review of items of ecological relevance in the Board’s file (PL 10. 219971) supplied to CWC.
2. Review of relevant items from the references listed on p. 44.
3. A site visit on 24 May 2006.
The approximate tracks of the routes taken were recorded using a Garmin etrex global positioning system (GPS) receiver. Positions were recorded using Irish grid references with the GPS set on the Ireland 1965 datum. These routes were transferred to a computer and overlaid on images of maps using Fugawi software. Fugawi was also used to calibrate the maps to the Irish Grid.
Photographs were taken on both days with an 6 mega pixel compact digital camera fitted with a 3x optical zoom lens. Time and date logging on the camera was turned on. Selected photographs, which add to the illustrations taken on 10 February 2007 for the Inspectors Report (p. 38), are used in this report. Notes were kept of the species and habitats observed.
5 Review of Ecological Information Information of ecological relevance from the documents in the Board’s file as supplied to the author is summarised in Appendix 1 on pages 19 to 38.
Coveney Wildlife Consulting Ltd. 19/12/2007 10 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 6 Site Visit The Site was visited during the afternoon and evening of 24 May 2007. The weather was warm, humid and largely overcast with light winds. 6.1 Route Taken
The Route took in:- 1. The general vicinity of the Site to gain an impression of the surrounding habitats, countryside and designated areas (Figure 1). This part of the route was driven by car. The temporary access tracks for the construction works for N25 Waterford Bypass facilitated access to areas north of the railway line, to the northeast of the Site. 2. The Site, which was visited on foot (Figure 2). 3. The location of the embankment works for the new alignment of the N9 to connect with the N25 Waterford bypass (Figure 2). Figure 1. Route of the Visit to the Surrounding Countryside on 24 May 2007
Note on the Figure: The route taken is shown in pink. The Site is shown in black. The black boxes are 1 km across. Based on Discovery Series 1:50,000 Map no. 76. Coveney Wildlife Consulting’s OSI Licence No. is EN 0024106.
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Figure 2. Route of the Visit to the Site and Adjacent Areas on 24 May 2007
Note on the Figure: The route taken is shown in pink. The Site is shown mainly in yellow towards the bottom left. The compensation wetland is the mainly blue area. The route of the realigned N9, part of the N25 Waterford Bypass, is between the dotted lines. Points A - D are the GPS positions taken on the road embankment adjacent to the compensation wetland. If the road embankment was following the route shown on the map, all of points A-D would be expected to be within the dotted lines. This map is based on Fig. 9B from the Applicants Environmental Report (p.21). CWC’s OSI Licence No. is EN 0024106.
Figure 3. View of the Proposed Compensation Wetland
Note on the Figure: Looking southeast from near point B (Figure 2) on the embankment under construction for the realigned N9.
Coveney Wildlife Consulting Ltd. 19/12/2007 12 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 6.2 Observations during the Site Visit Observations of habitats on the Site and in the surrounding areas were as expected from reviewing the Board’s file. Several common species of birds were observed, including a sedge warbler and a reed bunting in the southern wetland, as well as a few common species of butterflies and damselflies.
The only unexpected observation was that the embankment for the new alignment of the N9 appears to be slightly further south than was indicated in the Fig. 9B of the Applicant’s report (Figure 2). If this is correct, this would have the effect of reducing the size of the compensation wetland, which appeared to be a little smaller than expected (Figure 3).
Ecological areas in wetlands to the north of the new road alignment, which are not highlighted as areas for wetland creation in Fig. 8 of the Applicant’s Site Strategy, were also observed during the site visit (Figure 4).
Figure 4. View of an Ecological Area North of the New N9 Road Alignment
Note on the Figure: Wetland area north of the new N9 road under construction. This area is separate from the ecological compensatory areas associated with the N25 Waterford Bypass as shown in the Applicant’s Environmental Report (Figure 2, p.21). The area shown is in the vicinity of the word “proposed” in the topmost caption in Figure 2.
Coveney Wildlife Consulting Ltd. 19/12/2007 13 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 7 Assessment & Recommendations 7.1 Introduction & Limitation of Scope to Ecological Issues
The requirements of the Board for this report were specified in the Introduction on page 7. The first objective, the review of the ecological information was covered in Appendix 1 on pages 19 to 38. The remaining objectives are addressed in this section based on the review of ecological information and the site visits detailed in Section 6 on pages 11 to 13.
This assessment takes account of the retention permission in 1998 for approximately 0.6 ha of infill that was deposited before or during 1997 (P.A Reg. Ref 97/1053). While this infill was regrettable from an ecological point of view, there is no suggestion in the Board’s file that it was not authorised by the 1998 permission. In addition, this assessment only takes account of ecological factors and other issues of direct relevance to ecology. In this report, it was considered inappropriate to take account of the industrial zoning status of the Site. It is also beyond the scope of this report to consider the legal and planning standing of the ecological recommendations that are made here. 7.2 Adequacy of the Ecological Information Submitted 7.2.1 Ecological Impact of the Unauthorised Infill The Applicant seeks permission for the retention of fill material on 1.964 ha of wetland habitat that they admit was deposited without planning permission and which was the subject of a successful legal action against them by the Co. Council. However, the ecological and hydrological reports they submitted entirely failed to assess the negative ecological impact of this unauthorised infill in relation to wetland loss. Furthermore, they largely failed to acknowledge the effect that the unauthorised infill was likely to have had on the remainder of the Site’s wetland habitat, in particular the southern wetland.
It is obviously more difficult to asses the ecological importance of an area of wetland that has been destroyed as opposed to one that is still extant. Nevertheless, a useful approach would have been to seek aerial photographs from Ordnance Survey Ireland or other holders of aerial photography archives to see if there are images of the Site for the period prior to the unauthorised infill. If such photographs exist, it is likely that an estimate could have been made of the amount and the nature of the wetland habitat that was on the Site prior to the unauthorised infill. Following this, an ecological survey of a similar amount of reedbed wetland could have been done on one of the several sites that Applicant notes in their final submission are “found throughout the country”. The results could have been enhanced by desk studies of the likely nature and amount of flora and fauna that the 1.964 ha of wetlands would have been likely to support. Even if suitable historical aerial photographs do not exist, it seems clear that the wetland portion of the Site was largely a reedbed. Such an assessment, while hypothetical, would at least have been a fair effort at a best possible assessment of the ecological impact of the unauthorised infill. No such effort appears to have been made despite the fact that this issue was raised by the Appellant in his original objection to the Co. Council.
Overall, I consider the submitted ecological information to be seriously inadequate because of the failure to assess the ecological impact of the unauthorised infill. This conclusion was reached even
Coveney Wildlife Consulting Ltd. 19/12/2007 14 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 though the Applicant submitted a considerable amount of ecological and hydrological detail on the other aspects of the proposal.
7.2.2 Compensatory Habitat Proposals The Applicant proposes to integrate 0.5ha of compensation wetland associated with their proposal into the habitat compensation scheme associated with the N25 Waterford Bypass. However, no information other than outline maps of the N25 scheme was submitted. Neither was there any detail on how the two lots of habitat would be managed together. 7.3 Assessment of the Likely Environmental Effects of the Proposed Development
While, it is not possible to assess the ecological impact of the unauthorised infill in detail because of the inadequacy of the ecological information submitted, I consider that the main environmental effect of the proposal would be the permanent loss of 1.96 ha of wetland habitat, i.e. the 2.54 ha currently infilled on the Site less the approximately 0.6 ha of authorised infill. This infilled habitat was likely to have been of considerable local importance because of its position between the Lower River Suir SAC and the Grannyferry NHA. Although the Site has not been part of the tidally influenced zone of the River Suir system since the diversion of the mouth of the River Blackwater - before the unauthorised infill it was clearly part of the Lower River Suir/Grannyferry ecosystem because of the wetland habitat present. This wetland habitat was present because of the low-lying nature of the Site and the high groundwater levels.
The current proposal would also result in a further net loss of 0.25 ha wetland on the Site, i.e. due to the increase of the infill area from 2.54 to 2.79 ha. I consider that this loss of a total of about 2.21 ha of wetland habitat would be contrary to national policies to conserve biodiversity (6, 9) and to EU policy on the conservation of wetlands. The latter states that there should be no further wetland loss or degradation (5). At the EU level, about two-thirds of Europe’s coastal wetlands have been lost over the last century (10).
I agree with the Applicant’s position that the proposed development is not likely to adversely affect the nearby NHA and SAC, except to the extent that the unauthorised infill (and the proposed additional infill) has already removed wetland habitat between the two designated areas. 7.4 Appropriateness of the Proposed Mitigation Measures
The proposed transfer from the Applicant to the Co. Council of 0.5 ha of compensation wetland, while welcome, does little to offset the loss of 2.21 ha of wetland habitat on the Site because (i) it represents only 22.6% of the size of wetland habitat lost on the Site and (ii) it is already wetland habitat. Furthermore even this small area may have been reduced by road building activities for the N25 Waterford Bypass.
On the positive side, the future of this undesignated wetland habitat would be secured and it would be managed to enhance its ecological value. For the purposes of this report, it was decided to allow these security and favourable management factors as the equivalent of 40% of the value of newly created wetland habitat. In other words, it is recommended that the proposal to transfer 0.5 ha of
Coveney Wildlife Consulting Ltd. 19/12/2007 15 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 existing wetland from the Applicant to the Co. Council should offset 0.2 ha (9.1%) of the loss of 2.21 ha of wetland that would result from the current Application.
For the compensatory wetland concept to be an adequate mitigation measure for the current Application, it would be necessary to create a further 2.01 ha of new wetland or to transfer ownership to the County Council of a further 5.03 ha of existing wetlands, that are currently undesignated for nature conservation and not included in any other ecological compensatory scheme. Using the 40% allowance factor, 5.03 ha of existing undesignated wetlands would be the equivalent of 2.01 ha of new wetlands. A pro rata mix of new and existing undesignated wetland would also be acceptable. Ideally these wetlands should be adjacent to the existing designated areas or the compensatory wetlands for the N25 Waterford Bypass. New wetland should be created from non-wetland areas of low nature conservation value or from severely degraded existing wetland areas. The selection of this additional compensatory area should be professionally assessed by a competent ecologist and approved by the NPWS and the Co. Council.
If the proposed development is given permission, the Site mitigation measures should also be modified so that there is no net loss of wetland habitat on the Site itself and no net gain of infilled area. This could be done by reducing the size of the proposed enlargement of the northern wetland and by retaining and enhancing some of the southern wetland. The two wetlands could be connected by a narrower, deeper channel. A possible scheme for this suggested modification of the Site layout is outlined in Appendix 3 (p. 43). This was drawn up based on the assumption that the central part of the Site would be the most suitable for development. If there is no net loss of wetland habitat on the Site, the proposed figures for compensatory wetland habitat, as detailed above, could be reduced to 1.76 and 4.40 ha, respectively, or a pro rata mix of these two.
The proposed shallow wetland canal is likely to become choked with vegetation within a few years. A deeper channel, which would need only occasional maintenance, would be preferable (15). A deeper drain type channel would also allow the brackish water that seeps through the embankment at the northern end to mix with water in both wetlands. Finally, the NPWS’s conditions on habitat for butterflies, moths and dragonflies, as well as the consultation in relation to the constructed wetland should also be retained. 7.5 Effects of the Proposed Additional Landfilling of the Site
The proposed additional landfilling would result in the net loss of a further 0.25 ha of wetland habitat. 7.6 Review of the Proposed Reinstatement of the Swamp Area The proposed enlargement of the northern wetland is an acceptable but insufficient mitigation measure. However, the overall mitigation of the ecological effects on the Site would be improved if they were carried out as proposed in Section 7.4 (p.15). 7.7 Further Information Required
1. See Section 7.2 (p.14).
Coveney Wildlife Consulting Ltd. 19/12/2007 16 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 7.8 Recommendations Having reviewed all of the details of this case, the following ecological inadequacies were noted which would warrant a refusal of planning permission:- 1. Inadequate ecological assessment of the loss of wetland habitat due the unauthorised infill. 2. Inadequate ecological assessment of the effects of the unauthorised infill on the remaining wetland habitats on the Site. 3. Inadequate size of the proposed compensation wetland. 4. Inadequate assessment of the ecological integration of the proposed compensation wetland with the compensatory ecological measures associated with the N25 Waterford Bypass. However, I would not recommend refusal of planning permission, for the following ecological reasons:- 1. About 0.6 ha of the infill appears to be authorised by the 1998 permission. Therefore, it appears that the Applicant could not be obliged to remove this. 2. The Board’s file indicates that since the successful prosecution and the imposition of the financial levies, there has been co-operation between the Applicant, the Co. Council and the NPWS. In the event of a refusal, there would be less incentive for the Applicant to continue this co-operation. 3. There appears to be potential for full ecological compensation in nearby lands. 4. By allowing the Applicant the prospect of commercial development of the Site, subject to full ecological compensation for the unauthorised infill, there is a reasonable expectation of an ecologically satisfactory resolution of this case. 5. A refusal to grant planning permission may lead to an ecologically unsatisfactory outcome such as the continued presence of the unauthorised infill on the Site. Accordingly, I would recommend that the Board grant permission subject to the following conditions:- 1. There should be no net increase in the size of the infilled area on the Site beyond the current 2.54 ha. 2. The proposed layout of the Site should be modified in a manner similar that proposed in Appendix 3 (p. 43) to retain some of the southern wetland, to reduce the proposed enlargement of the northern wetland and to connect them by a deeper and much narrower “drain type” channel. The design of these modifications should involve professional ecological input and should be approved by NPWS and the Co. Council before construction commences. Construction should also be supervised by an ecological professional with relevant habitat creation experience. 3. To compensate ecologically for the loss of wetland habitat due to the illegal infill and after fulfilling conditions 1 and 2, the Applicant should create at least 1.76 ha of new wetland habitat, or contribute at least an additional 4.4 ha of existing undesignated wetland habitat, or provide a pro-rata mix of the two. These wetlands should, if possible, be adjacent to the SAC/NHA complex in the area.
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4. The Applicant should provide a full assessment to the NPWS and the Co. Council of the feasibility of creating and/or transferring the required amount of compensatory wetland. They should also provide an assessment to the likely value of the ecological value of the compensatory wetland. The aim would be to secure, at least, wetland habitat of equivalent value to what was likely to have been lost. However, an exact match may not be practicable. 5. The design of the proposed additional compensatory wetland should be done by a suitably qualified ecologist and the proposals should be approved by the NPWS and the Co. Council prior to implementation. Any wetland construction should be supervised by an ecological professional with relevant habitat creation experience.
Coveney Wildlife Consulting Ltd. 19/12/2007 18 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 8 Appendices 8.1 Appendix 1. Detailed Review of Ecological Information
Information of ecological relevance from the documents in the Board’s file, as supplied to the author, are summarised in this Appendix. The summaries are in chronological order beginning with the oldest.
The points summarised here are, in the view of CWC, the main ecological points of relevance to the case. They are not the views of CWC [except for clarifications given in square brackets like this – CWC]. CWC’s assessment is given in Sections 6 and 7 –Text in “italics” is quoted directly from the source document. Page and Section numbers refer to this document – references to sections of the source documents are bolded. References are given at the end of this report for documents consulted that were not in the planning file. Planning reference numbers and appeal numbers are given for planning cases referred to.
The most important ecological items in each report or submission was summarised as a preliminary to preparing the assessment section (p. 14). Relevant background was also summarised to provide context for the ecological summaries. 8.2 SAC Site Synopsis for Lower R. Suir, 17 May 2005 8.2.1 Item Description & Background Material
This Synopsis provides an ecological description of the Lower River Suir Special Area of Conservation (SAC code 2137). This extends from Thurles in Co. Tipperary to its confluence with the Barrow/Nore at Cheekpoint in Co. Waterford. The SAC includes tributaries of the River Suir, but not the River lackwater as well as adjoining wetlands along the river and the tributaries. This large SAC contains several species and habitats of nature conservation importance that are listed on Annexes I & II of the EU Habitats Directive, as well as a number of bird species listed on Annex I the EU Birds Directive.
8.2.2 Ecological Review
The SAC areas close to the River Blackwater tributary are not specifically mentioned in the Synopsis and the River Blackwater itself is not included in the SAC. 8.3 Planning Application to Co. Council, 16 Dec 2005 8.3.1 Item Description & Background Material
On 16 December 2005, the Applicants applied to the Co. Council for planning permission infilling at Newrath, Kilculliheen (P.A. Reg. Ref. 05/1973). The Applicants proposed to :-
1. Retain inert fill on an area of 1.964 ha of reclaimed land on an overall Site of 5 ha.
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2. Rearrange the fill material on the Site to expand the northern wetland and to fill in the southern wetland.
3. Landscape the Site and plant additional native trees and shrubs to enhance the boundary of the Site.
4. Provide a compensation wetland of 0.5 ha on the other side of the N9, 40 m north of the Site.
8.3.2 Ecological Review
See the reviews of the Applicant’s Site Strategy on p. 20 and their Environmental Review on p. 21. 8.4 Applicant’s Site Strategy & Accompanying Maps, 16 Dec 2005 8.4.1 Item Description & Background Material
The Site Strategy outlined ecological enhancement measures and development proposals for the Site. It forms “the baseline information” for the Applicant’s Environmental Report (p. 21) and both documents accompanied the planning application (p. 19). The Site Strategy summarised details of wetland restoration, ground modelling, ecological enhancement works and vehicular access. It was prepared by Murray O ‘ Laoire Architects. There were expert inputs on engineering and environmental matters from Malone O’Regan Consulting Engineers and on planning matters from Declan Brassil & Company
8.4.2 Ecological Review
1. The development of the of the Site, “in manner sensitive to the receiving wetland environment” could enhance the ecological diversity of the Grannyferry/Newrath area.
2. The ecological enhancement measures would create an ecological area of 2.21 ha or 44% of the Site. They would also extend the filled area by 5% to 2.79 ha or 56% of the total Site area.
3. As an additional mitigation measure, a nearby 0.5 ha reedbed, or compensation wetland, would be transferred to the Co. Council. When account is taken of the loss of an additional 0.25 ha of wetland on the Site, this would increase the total ecological area by 5% [actually 20.3% if the calculation is based on the size of the existing wetland on the Site – CWC]
4. The Site is an integral part of the River Blackwater system and it is adjacent to wetland restoration proposals “already in place” [from the situation on the ground this presumably meant already agreed – CWC] for the N25 Waterford Bypass (p. 21). The Site’s wetlands would be integrated into these proposals to further enhance the ecological diversity of the Grannyferry/Newrath areas.
5. The ecological works on Site would entail the removal of fill material to enlarge the wetland areas in the northern section of the Site to create a varied range of wetland vegetation there.
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6. The integrated nature of the wetland works would facilitate “ecological connectivity” within the Site and with the adjoining wetlands.
7. The Site was zoned as industrial in the 2002 County Development Plan (14). 8.5 Applicant’s Environmental Report, 16 Dec 2005 8.5.1 Item Description & Background Material
An Environmental Report entitled “Appropriate Expert Assessment of Proposed Ecological Enhancement and Site Enabling Works at Newrath Townland, Kilculliheen, Co. Kilkenny” was submitted to the Co. Council with the application for planning permission on 16 December 2005 (p. 19). It was prepared for the Applicant by Malone O’Regan Environmental Consultants Ltd. It described the proposed development and assessed a wide range of environmental impacts, including those that would impact on water, flora and fauna, and soils and geology.
8.5.2 Ecological Review
The development would comprise:-
1. The removal of fill material from 0.77 ha adjacent to the northern reed and sedge swamp to restore wetland habitat on this part of the Site. This would increase the size of this wetland from 0.14 ha to 0.62 ha.
2. The removal of fill material along the northern and northeastern boundary to create a “wetland canal”.
3. The relocation of the fill material from these two areas, as well as the importation of an additional 5,000 tonnes of material, to fill in 0.95 ha currently occupied by the southern wetland. This would leave a final total of 2.79 ha on the Site at 2.8m OD – i.e. with a sufficient elevation above the tides to be suitable for future development.
4. Improvement of the existing hedgerow and creation of a temporary grassland on the final infilled area.
5. The existing access point to the N9 would be used for the works in this Application and a new access bridge across the canal would also be constructed. The construction programme would take 3-4 months.
It was decided to focus the ecological restoration work on the northern section of the Site because the brackish influence from the adjacent River Blackwater means the northern wetland already has greater biodiversity than the southern reedbed. The proposed restoration would enhance this biodiversity.
The new northern wetland would have a pond varying in depth from 0.2 to 2.5m to create suitable conditions for a range of wetland plants. i.e., marginal, emergent, submerged and floating. Wetland plants would naturally colonise from the existing 0.14 ha wetland and there would also be some planting of transplants of existing plants. The wetland would be screened from the service station and the future development by appropriate planting.
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The wetland canal would occupy 0.75ha and run from the southeastern boundary along the railway line and then adjacent to the current N9 and around the service station to the enlarged northern wetland. It would be at least 0.4m deep and 13.5 to 20m wide. Wetland plants would be transplanted in a similar manner to the enlarged northern wetland. Surface water from the Site would drain naturally into the canal. Part of the canal would be used as an “attenuation pond” for the future development. Surface water entering the attenuation area would be treated before existing to the rest of the Site’s wetlands.
The existing hedgerow along the embankment on the southwestern boundary of the Site would be widened from 10 to 15m by planting hedgerow species such as hawthorn, blackthorn and holly. The 2.79 ha of the Site that would be used for future development would be planted with a mix of grass and wild flowers until that development takes place.
Overall, ecological areas would occupy 44% of the Site or 2.21ha. The enlarged northern wetland is designed to be compatible with neighbouring wetland and would improve the connectivity between the Grannyferry NHA and the Lower River Suir SAC.
8.5.3 Ecological Surveys & Conservation Assessment
These were done in May 2005, with additional surveys of migratory birds in September and October 2005. Desk studies of available information on the Site and the surrounding area were also done. During the surveys, particular attention was paid to the possible presence of habitats and species listed in the Flora Protection Order (FPO), the Wildlife (1976) and Wildlife Amendment (2000) Acts, the EU Birds & Habitats Directives, and red and amber-listed bird species (18). Standard definitions of vegetation types and habitats were used (3, 11).
It was clear from the remaining intact wetland that the Site was once [until the River Blackwater was diverted – CWC] an integral part of the River Suir hydrological system. It is still connected to this system by the saline intrusion to the northern wetland and by occasional flooding from the River Blackwater during storms at high tides. [The hydrological report (p. 25) in the further information states that Site is not flooded by the River Blackwater – CWC]. The remaining wetlands on the Site are of local conservation value, particularly the northern wetland because of the brackish influence. The southern wetland is of lesser value because it is a small reedbed and it is isolated. It also “may be drying out due both to the recent infilling and to the diversion of the River Blackwater”. It is also of lesser value because this type of habitat occurs frequently. The Site was considered too small to be used by significant numbers of migratory birds such as feeding sedge warblers and roosting swallows.
8.5.4 Assessment of Effects & Mitigation
The enlargement of the northern wetland was assessed as a moderate positive impact while the creation of the wetland canal and the enhancement of the embankment hedgerow were assessed as minor positive impacts. The infill of the southern wetland was assessed as a minor negative impact because of its low conservation value. No adverse impacts on migratory birds, mammals (including otter), amphibians and reptiles were predicted. The otter is listed on annex II of the EU Habitats Directive and which could be expected to use the Site occasionally.
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The Applicant would provide an additional 0.5 ha of compensation wetland near the Site as an additional mitigation measure. This parcel of wetland is located adjacent to the railway cottage at the level crossing on the N9. It is 40 m north of the Site and ownership of this area would be transferred to the Co. Council for addition to the wetland areas being enhanced to mitigate the ecological effects of the N25 Waterford Bypass works on the Grannyferry NHA. The compensation wetland has greater biodiversity than the Site’s wetlands because it has both swamp and open water. There is scrub and hedgerow at its edges.
Several construction phase mitigation measures would be implemented. These included no stockpiling of excavated material near watercourses, importation only of clean subsoil, drip trays under any equipment using oil, a double skinned fuel tank for vehicles working on the Site, and use of pre-cast concrete where possible to minimise the risk of concrete pollution of watercourses. 8.6 Iarnród Éireann Submission to Co. Council, 4 Jan 2006 8.6.1 Item Description
A submission from Iarnród Éireann to the Co. Council detailing issues the Applicant should deal with to avoid adverse impacts on the safety of the railway.
8.6.2 Ecological Review
The only ecological point in this submission specified that no trees should be planted along the railway to avoid obscuring train drivers’ vision and to avoid leaves on the line. 8.7 Objection by Appellant to Co. Council, 26 Jan 2006 8.7.1 Item Description & Background Material
A Waterford city resident, Mr Brendan McCann, lodged an objection to the Application with the Co. Council in January 2006. He subsequently lodged an Appeal with the Board against the decision to grant planning permission (p. 30).
8.7.2 Ecological Review
The following ecological points were made in this objection.
1. The Site’s wetlands should be restored in full as they are “within the riparian corridor” of the Lower River Suir SAC.
2. A full assessment of the ecological impact of the proposed development, as well as ecological benefit of restoring the wetlands to the state they were in prior to infill, should be requested by the Co. Council.
3. The proposed wetland canal could have a profound impact on the ecology of the area and this aspect of the proposal should be fully evaluated.
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4. Permission should be refused to avoid setting a precedent for the destruction of other wetlands. 8.8 Objection by NPWS to Co. Council, 27 Jan 2006 8.8.1 Item Description
In January 2006, the NPWS objected to the Application as detailed below.
8.8.2 Ecological Review
1. The Site is adjacent to the Lower River Suir SAC and hydrologically connected to the adjacent SAC wetland habitat.
2. 2.5 ha of the Site was illegally infilled.
3. The material from the proposed restoration area should not be disposed of on the Site and the southern wetland should not be filled in.
4. There no information on the hydrological interactions between the Site and the SAC. In the absence of this information, the NPWS applied the precautionary principle and assumed there would be a negative ecological impact on the SAC.
5. The proposal would result in the permanent loss of about 3 ha of wetland habitat and its associated biodiversity that would be contrary to the National Biodiversity Plan (6, 9). 8.9 Request for Further Information by the Co. Council, 14 Feb 2006 8.9.1 Item Description
On 14 February 2006, the Co. Council requested further information from the Applicant on five points. Two of these related to ecology.
8.9.2 Ecological Review
The issues relating to ecology on which the Co. Council requested further information were:-
1. Hydrological interactions between the Site and the adjacent SAC wetlands and river.
2. The infilling of 0.99 ha of wetland at the southern end of the Site and the creation of compensatory wetland on the other side of the N9. The Co. Council specified that the biodiversity effects of these two proposals should be assessed with particular regard to the National Biodiversity Plan.
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The Applicant’s hydrological response to the Co. Council’s request for further information (item 1 on p. 24) was entitled “Hydrological Report – Additional Information Response – Proposed Ecological Enhancement and Site Enabling Works at Newrath Townland, Kilculliheen, Co. Kilkenny”. It was prepared by Malone O’Regan Environmental Services Ltd.
8.10.2 Ecological Review
Following receipt of the request for further information from the Co. Council, the Applicant met with local NPWS staff and it was agreed that the hydrological report would also cover the following issues:
1. The permeability of the existing embankment on the southwestern boundary of the Site [adjacent to the SAC - CWC] and the possibility of a surface water connection between the Site and the adjacent SAC.
2. The source of the brackish water influencing the northern portion of the Site .
The hydrological report was based on following investigations during March and April 2006.
1. A desk study of Ordnance survey, geological, soil, and water quality maps.
2. Additional field investigations to determine drainage patterns after rainfall, the installation six piezometers to measure ground water flows on the Site and the adjacent SAC, subsurface investigations, permeability tests of the berm along the southwestern boundary, conductivity tests to determine water salinity levels, and additional topographical survey work.
3. Hydrological modelling of the of the Site and adjacent areas.
The following new ecological points were made in the hydrological report:
1. The central 2.54 ha of the Site area is covered by an average of 2.0 – 2.5m of fill material. This overlays the original reedbed layer, which in turn overlays estuarine silt with some peat down to 15.4m below ground level.
2. The inert fill material poses a negligible risk of pollution to the underlying strata.
3. In the 19th century, the River Blackwater ran along the western boundary of the Site [through the setback area between the Site and the SAC] and flooded it. The Blackwater was diverted to join the River Suir some 700m upstream to facilitate transport of stone from nearby quarries [this was stated to have taken place in the 19th century although it is not shown in the 1901 ordnance survey map included with the Site Strategy – CWC]. During these works, the Site was also embanked to prevent it being flooded by the Blackwater and
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there is no history of flooding since then. However, wetlands adjacent to the Site are occasionally flooded during the highest tides.
4. Both the Rivers Suir and Blackwater are tidally influenced in the area with a tidal range of 2.8 to 3.7m.
5. Surface water from the adjacent Redbridge service station drains onto the Site via unauthorised outfalls and a septic tank. This surface water is contaminated with petrol and diesel [no assessment was presented of the significance of this contamination - CWC]. Along with surface water from the N9, it flows via a drainage ditch adjacent to the road to the reedbed where it infiltrates into the soil.
6. Groundwater under the northern wetland flows to the adjacent River Blackwater. Under the southern reedbed, the flow is to the River Suir via the SAC area. The quality of the ground water was not affected by the fill material.
7. There are no direct hydrological interactions between the Site and the SAC wetlands or the River Suir.
8. The brackish influence on the northern wetland is from the adjacent River Blackwater at high tide, via groundwater.
9. It is proposed to use this brackish influence to enhance the biodiversity at the northern end of the Site.
In the proposed development:-
1. There would continue to be no direct interaction between the Site and the River Suir
2. Surface water from the service station and the N9 would be intercepted and treated. Surface water from the Site would be used to enhance the wetland features of the Site. Unauthorised outfalls on the Site would be removed.
3. The proposed development would have no significant adverse effect on the Site’s groundwater or its interactions with the SAC. The quality of the groundwater from the northern reedbed would be improved by the removal of a septic tank from the adjacent service station. 8.11 Applicant’s Additional Information Submission – Ecology, 25 Apr 2006 8.11.1 Item Description
The Applicant’s ecological response to Co. Council’s request for further information (item 2 on p. 24) was entitled “Ecology Report – Additional Information Response – Proposed Ecological Enhancement and Site Enabling Works at Newrath Townland, Kilculliheen, Co. Kilkenny”. It was prepared by Malone O’Regan Environmental Services Ltd.
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8.11.2 Ecological Review
The Co. Council requested further information on the infilling of the southern wetland, the creation of the compensation wetland and the effects of the proposal on biodiversity. Following receipt of the request for further information from the Co. Council, the Applicant met with local NPWS staff and it was agreed that the ecological report would also cover the following issues:
1. The use of the Site and the compensation wetland by migratory birds.
2. Additional details of the survey methods used by specialists.
3. The suitability of the Site for a constructed wetland.
This additional ecological report is largely a restatement and expansion of the points made in the Environmental Report (p. 21) submitted with the Application in December 2005, which was based on surveys of habitats, birds, other fauna and flora , between May & October 2005. The only new fieldwork was an entomology (insect) survey of the Site and the compensation wetland in early April 2006.
The following new conclusions were reached in relation to the southern wetland:-
1. It was accepted that a migratory bird survey of the southern wetland should be done during the peak season for such use of coastal reedbed habitats in July and August (p. 28).
2. A survey for use of the southern wetland by wintering birds in general was considered unnecessary. More specifically, hen harriers were considered unlikely to use the southern wetland as a winter roost. The hen harrier is a red-listed species in Ireland (18) and is listed on Annex I of the EU Birds Directive.
3. The insect survey was done on a cold windy day in early April. Therefore, the value of the southern wetland for insects was based on a habitat assessment rather than on the insects observed. In general, this wetland was considered to be disturbed and degraded and unlikely to support a diverse insect population. Areas of scrub and herb could, however, support butterflies and moths and it was recommended that this habitat should be recreated elsewhere on the Site.
4. Following this reassessment of the southern wetland, the conclusion in the Applicant’s Environmental Report (p. 21) that infill of the southern wetland would be a “minor negative impact” was changed to “not” having “any significant ecological impact”.
The following conclusions were reached in the reassessment of the proposed development’s effects on biodiversity:-
1. Construction of the enlarged northern wetland would be done using and “Integrated Constructed Wetland Design” that is approved by NPWS for maximisation of biodiversity.
2. The existing northern wetland and the adjacent areas are suitable for this type of constructed wetland.
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3. The new wetland would be complementary to the adjacent SAC and the other adjacent wetlands.
4. The expansion of the hedgerow on the embankment would enhance the biodiversity of the Site.
The following new points were made in relation to positive biodiversity effects resulting from the inclusion of the compensation wetland in the proposal:-
1. The compensation wetland is directly linked to and occasionally flooded by the Smartcastle stream that flows into the River Blackwater about 180 m north of the Site.
2. The compensation wetland has educational potential due to its proximity to Waterford City.
3. It is likely to be suitable for dragonflies, including the emperor dragonfly that has colonised the south and east coast of Ireland in recent years
Overall the following conclusions were made in respect of biodiversity.
1. The provision of 44% of the Site for biodiversity for ecological enhancement measures and landscaping was considered to be an appropriate balance between nature conservation and the industrial zoning of the Site.
2. While the newly constructed habitat would be less valuable than the existing wetland habitats on the Site in the short term, it was considered that it would ultimately be beneficial for biodiversity.
3. The contribution of the 0.5ha of the existing wetland would mean a 5% increase in the amount of wetland habitat over the current situation [actually 20.3% - CWC].
4. The southern wetland is compromised because of its structural and functional properties are degraded. 8.12 Applicant’s Migratory Birds Report, 11 Aug 2006 8.12.1 Item Description
A report by Biosphere Environmental Services for the Applicant on the assessment of the usage of the Site by migratory birds in July & August 2006. This was prepared in response to an additional request for further information by the Co. Council on 22 May 2006
8.12.2 Ecological Review
The goal of the report was to assess if the Site - the southern wetland in particular - is of importance as a pre-migratory habitat for sedge warblers or a pre-migratory night roost site by swallows and sand martins. The Site was visited in late July and in early August 2006, the peak season for such usage of coastal wetlands in Ireland by these species. Observations were made on warm dry evenings using a methodology approved by the NPWS. Mistnets were also set in the southern wetland to trap sedge warblers [which were later released unharmed – CWC]. One sedge warbler
Coveney Wildlife Consulting Ltd. 19/12/2007 28 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 was observed on each visit, as well very low numbers of their insect prey. Up to 200 swallows were observed in the vicinity of the Site but they showed no interest in the Site itself. It was concluded the Site is not used by migratory birds and that the wetland habitat on the Site is of poor quality for such use, compared to wetland habitat in the vicinity. Overall, it was considered that this study in combination with those in the Applicant’s Environmental Report (p. 21) established the proposed development would no impact on birds and that the mitigation and compensatory measures would improve the Site’s value for birds. 8.13 Withdrawal of Objection by NPWS, 31 Aug 2006 8.13.1 Item Description
This was a submission by NPWS to the Co. Council withdrawing their objection to the Application - subject to three conditions as detailed below.
8.13.2 Ecological Review
1. An area of scrub and herbs to that in the southern wetland, which has the potential to support a “Lepidopterous” [a scientific term for butterflies and moths - CWC] population, shall be established within the proposed development. This should be planned in consultation with NPWS.
2. The Applicant should consult with NPWS on the design of the constructed wetland.
3. Aquatic plants should planted in the compensation wetland to improve its suitability for dragonflies. 8.14 Co. Council’s Decision to Grant Planning Permission (05/1973), 8 Sep 2006 8.14.1 Item Description & Background Material
The Co. Council decided to grant planning permission to the Applicant on 8 September 2006 subject to 15 conditions. Ten of these related to ecology as detailed below. The decision to grant planning permission was based on a planning report which summarised the details of the case to date. One new point was a statement that the Site was “Inside an area of high amenity”. This zoning [if it is such – CWC] was not referred to elsewhere in the Board’s file and its significance is unclear but it would appear to contradict the industrial zoning.
8.14.2 Ecological Review
1. Condition No. 1 specified that the development should be done according to the Application lodged on 16 December 2005 (p. 19, p. 20 & p. 21), the Further Information Lodged on 26 April 2006 (p. 25 & p. 26) and the Migratory Bird Report lodged on 15 August 2006 (p. 28) except as otherwise required by the remaining Conditions.
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2. Condition No. 3 specified that within three months of the grant of planning permission, the Applicant should make an agreement with the Co. Council under Section 47 of the 2000 Planning & Development Act to transfer the ownership of the 0.5 ha compensation wetland to the Co. Council.
3. Conditions No. 5 specified that a similar area of scrub and herbs to that in the southern wetland, which has the potential to support a “Lepidopterous” population [a scientific term for butterflies and moths - CWC], shall be established within the proposed development. This should be planned in consultation with NPWS and the proposals agreed with them should be approved by the Co. Council.
4. Condition No. 6 specified that Applicant should design the proposed integrated constructed wetland planned in consultation with NPWS and the proposals agreed with them should be approved by the Co. Council.
5. Condition No. 7 specified that Applicant should consult with NPWS on the planting of aquatic plants in the compensation wetland to improve its suitability for dragonflies and the proposals agreed with them should be approved by the Co. Council.
6. Condition No. 8 specified that the Applicant shall agree an environment construction management plan with the Co. Council before development starts.
7. Conditions Nos. 9, 10, 11 & 14m specified how the Applicant should comply with landscaping and planting proposals in the Application, including those that might affect the railway. 8.15 Appeal Submission by B. McCann, 4 Oct 2006 8.15.1 Item Description & Background Material
This is an Appeal by Mr. Brendan McCann against the decision of the Co. Council to grant planning permission for the retention of infill and the other aspects of the proposed development. There were also a number of legal arguments in relation to various EU proceedings against Ireland for illegal dumping of waste as well as the potential of the proposed development to contribute to flooding of the current N9 route.
8.15.2 Ecological Review
The Appeal made the following ecological points in addition to those already made in the Appellant’s original objection (p. 23):-
1. The Site’s industrial zoning in the Co. Development Plan (14) did not take account of its ecology.
2. The Co. Development Plan states that it is the policy of the Council to protect SACs.
3. Given the location of the Site within the riparian zone and adjacent to the SAC, the decision to grant planning permission was contrary to the Development Plan Policy and would add to the ecological losses caused by the N25 Waterford bypass.
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4. The proposed development would have significant effects on the characteristic species of the SAC, i.e. otter, twaite shad, three species of lamprey, freshwater pearl mussels and white-clawed crayfish because of the loss of habitat and spawning grounds.
5. The proposed wetland canal appears to be for drainage rather than biodiversity and could have a profound negative effect on the ecology of the area.
6. The decision to grant permission for this development would encourage other cases of infilling of wetlands.
7. Permission would be premature in advance of a local biodiversity plan for Co. Kilkenny. 8.16 Observation Submission by R. Canney, 27 Oct 2006 8.16.1 Item Description & Background Material
An Observation to the Board by Ms Rita Canney of Waterford City supported the Appeal. As well as ecological issues, this submission made several legal arguments in relation to the legality of the infilling, with particular reference to a judgement (C-494/01) against Ireland by the European Court of Justice relating to illegal dumping of waste in several other locations. It also noted that while the industrial zoning of the Site indicates the type of development that may be acceptable, any such development should be subject to the planning process.
The submission was accompanied by the following items:-
1. A letter on 30 July 2004 from the Co. Council to the Waste Infrastructure & Regulation section of the Environment Policy Division of the Dept. of the Environment, Heritage and Local Government (DoEHLG). The Co. Council also copied this letter to the Environmental Protection Agency (EPA).
2. The NPWS objection to the Co. Council on 27 January 2006 (p. 24) and the withdrawal of their objection on 31 August 2006 (p. 29)
8.16.2 Ecological Review
The following points were made in the main part of the Observation:-
1. The damage caused to past and present wetlands on the Site by the infilling was not adequately assessed.
2. The wetlands on the Site should be restored to their condition prior to infilling.
3. Prior to infilling the wetlands, the Site formed a natural extension to the Lower River Suir SAC and could have acted as a buffer to protect this designated area.
The following points were made by the Co. Council in the submission to the Waste Infrastructure & Regulation section of the DoEHLG:-
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1. Following court proceedings, the Applicant co-operated with the Co. Council and ceased filling on the Site.
2. Investigations that were still ongoing showed that the fill material was not a source of environmental pollution.
3. The Co. Council instructed that a small amount of non-inert material should be removed.
4. The lands had been zoned for development since 1986 and that zoning had been subject to public review in advance of the adoption of the 1986, the 1994 and the 2002 Development Plans. Interested parties could have made submissions about zoning or ecological status of the Site prior to the adoption of each of these plans. The fact that they did not suggested that it was not warranted.
5. The Site is not part of the SAC, it is not significant [ecologically, presumably– CWC ] and the filling would not have a significant adverse effect on the SAC.
6. The Co. Council accepts that the Site was infilled without due process having been followed but legal action has been successful in this regard.
7. Removal of the fill material from the Site “is considered unnecessary and would be a waste of resources". 8.17 Applicant’s Waste Permit from Co. Council, 7 Nov 2006 8.17.1 Item Description & Ecological Review
A Waste Permit (Ref. WMP052/2005) was issued by the Co. Council to the Applicant on 7 November 2006. Subject to compliance with planning permissions, this permit would allow for:-
1. The regularisation of the construction and demolition material already deposited on the Site.
2. The reorganisation of the existing material on the Site.
3. The importation of an additional 5,000 tonnes of fill onto the Site.
The permit was subject to 11 conditions, mostly standard ones relating to good practice. Condition 9.2 specified that the Applicant should liaise with NPWS to ensure that the proposed works would achieve satisfactory ecological connectivity with the NHA and those associated with the N25 Waterford Bypass. A detailed proposal on these issues was to be submitted for approval to the Co. Council within two months of the grant of the waste permit.
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Following an invitation by the Board, the Applicants responded to the Appeal and this was prepared by Declan Brassil & Co. Ltd. Just over half of this submission is taken up with a review of the history of the Site and the Application, as well as a review of the planning context. The Applicant also stated that the Appellant’s submission in relation to the EU’s proceedings against Ireland for illegal dumping of waste do not apply to this Site.
8.18.2 Ecological Review
Much of the rest of the submission was a restatement of items from the Environmental Report (p. 21) and the Further Information submissions to the Co. Council (p. 25, 26 & 28). The following ecological points were made in the response to the Appellant.
1. The Applicants did not accept that the Appellant’s statement that Site is within the riparian corridor of the SAC. According to the Applicant, it is NPWS policy to include all functional areas of floodplain in riparian sites designated as SAC. The Site has not been part of the River Blackwater floodplain [and thus part of the Lower River Suir riparian zone – CWC] since the diversion of the Blackwater.
2. The proposed development would have no adverse impact on the River Suir. On the contrary, the ecological features of the development would enhance the SAC, particularly the donation of the wetland compensation area.
3. The zoning of the Site as industrial is appropriate because it does not deserve [ecological – CWC] protection.
4. The proposed development would not have significant effects on characteristic species of the SAC such as twaite shad and the lampreys because they do not spawn in the vicinity of the Site but upstream in freshwater sections of the SAC.
5. Most of the existing habitat on the Site, i.e. the southern wetland, is lacking in biodiversity, is degraded and contains only common species.
6. The Appellant has not taken account of the contribution of the compensation wetland to the ecology of the area in the light of its future industrial development.
7. The proposed development would not set a unwelcome precedent for the protection of other wetlands because of the Site’s zoning, the ecological aspects of the development that meet the approval of the NPWS and the Co. Council, as well as the significant costs the Applicant had already incurred in penalties and site investigations.
8. The Appellant supplied no evidence to support his claims about the hydrology of the Site and therefore the Applicant’s detailed hydrological report is valid.
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9. The Co. Council, in deciding to grant permission, were satisfied that the ecological requirements of all relevant statutory authorise were met. 8.19 Co. Council’s Response to Board on the Appeal, 8 Nov 2006 8.19.1 Item Description & Background Material
This submission provided a summary of the Application history and a statement that the planning permission was reasonable and balanced in the light of the lack of nature conservation designations, the environmental reports submitted, the responses of the statutory bodies, and the industrial zoning of the Site. The submission was accompanied by response of the Co. Council’s Environment Dept. to the Appeal.
8.19.2 Ecological Review
Apart from restating details of the Site’s history, zoning and lack of nature conservation designations, the ecological points in the Co. Council’s Environment Dept. report were as follows:-
1. Planning permission was granted to retain existing fill on the Site in 1997 (P97/1053).
2. Permission was not granted to complete the infill of the Site in 1998 because it was considered premature in advance of the finalisation of the route of the N25 Waterford Bypass (P97/1054).
3. The Co. Council obtained a conviction against the Applicant for the illegal infilling in 2002.
4. Since 2002, the Applicant has actively engaged with the Co. Council to resolve planning and environmental issues on the Site.
5. The Co. Council is satisfied that no significant environmental damage has occurred as a result of the unauthorised activity.
6. The history of activity on the Site was reviewed by national and EU authorities in Brussels in 2001. The EU’s view was that those “flouting” the law should not profit from this; they should be visibly punished; and there must be restitution and/or ecological gain.
7. Since that the EU review, the Co. Council has been successful with a prosecution of the Applicant, has secured an extensive environmental report, has imposed a landfill levy, has secured the ecological enhancement of the Site via planning conditions and has received 0.5 ha of compensatory wetland from the Applicant.
8. The case was again reviewed by EU and national officials during a “recent” site visit and the EU informally indicated that it was satisfied with progress, although the Co. Council was still awaiting their final report.
9. The Co. Council granted a Waste Permit to regularise the infill of the Site (p.32).
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This submission from An Taisce was invited by the Board. They stated that this case is of “national significance” because of its history. The also stated that a decision on the case would be premature pending decisions on complaints to the EU against the Co. Council that An Taisce had been pursuing since 2001. They suggested that the Board should seek advice from the European Commission on the case. Furthermore, An Taisce consider that the response of the Co. Council to these complaints has been “systematically ineffective”.
8.20.2 Ecological Review
The submission makes the following ecological points:-
1. The Site is within the “tidal influence of the river with high reed growth”.
2. The zoning of the Site was “entirely inappropriate”.
3. The Applicant should not benefit financially from the “unauthorised and environmentally damaging deposition of waste”.
4. The National Biodiversity Plan states that the habitat types, fens rivers and marshes have been inadequately studied and the Co. Council has failed to adopt a local biodiversity plan as recommended by the National Biodiversity Plan (6, 9).
5. The European Environmental Agency (EEA) has highlighted the loss of wetlands in Ireland from infilling and other development (10).
6. The proposed drainage would have an adverse effect on the remaining wetland areas. 8.21 Response to Board by the Observer on An Taisce Submission, 23 Feb 2007 8.21.1 Item Description & Background Material
This response to the An Taisce submission by the Observer was invited by the Board. As well as the ecological points summarised below, the Observation supported An Taisce’s view that a decision on the case would be premature in advance of the completion of proceedings at EU level and that the proposed development would exacerbate flooding.
8.21.2 Ecological Review
Many of the ecological points were restatements of points previously raised in the case file. The following new points were made:-
1. The Council should reconsider the zoning in the 2008 Development Plan that is currently in preparation.
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2. The current industrial zoning of the Site is not compliant with The DoEHLG draft guidelines for Development Plans (7) because, among other reasons, any significant adverse impacts on the features of designated areas should be avoided,
3. The proposed development would counteract the mitigation measures put in place for the N25 Waterford Bypass Scheme. 8.22 Response to Board by the Appellant to An Taisce Submission, 25 Feb 2007 8.22.1 Item Description & Background Material
This response to the An Taisce submission by the Appellant was invited by the Board. As well as the ecological points summarised below, it supports the An Taisce view that a decision on the case would be premature in advance of the completion of proceedings at EU level.
8.22.2 Ecological Review
Many of the ecological points were restatements of points previously raised in the case file. The following new points were made:-
1. The Site’s industrial zoning should not be given undue weight given that, prior to infilling, it was a “natural ecosystem” that also served to absorb flood water.
2. The original biodiversity of the Site, prior to infilling, was not properly considered by the Co. Council during the planning process.
3. The ecological enhancement scheme in the proposed development could equally well be used to restore the wetland biodiversity of the whole Site if all of the fill material was removed.
4. The remaining wetlands on the Site are likely to have been adversely impacted by the illegal infilling, especially the southern wetland. 8.23 Response to Board by Applicants on the An Taisce Submission, 28 Feb 2007 8.23.1 Item Description & Background Material
The Applicant was invited by the Board to comment on the submission by An Taisce. This response was prepared by Declan Brassil & Co. Ltd. The Applicant contested An Taisce’s statement that a decision by the Board would be premature in the light of the EU proceedings. They also stated that the relevant EU official stated to the Applicant’s legal advisor that no decision had been taken on whether legal proceeding would take place. Also contested was An Taisce’s statement that the Applicant would gain financially the illegal infill - to the contrary they had spent about €3million to date.
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8.23.2 Ecological Review
The following ecological points were made in the response to An Taisce:-
1. The Site is not within the direct tidal influence of the River Blackwater.
2. The dominant species in the southern wetland, the common reed, is very common and widely distributed.
3. The NPWS, the DoEHLG and the Southern Regional Fisheries Board (SFRB) have approved the ecological proposals [no submission from the SFRB was found on file although they were asked by the Board for a submission on 3 January 2007 - CWC].
4. The Site’s industrial zoning is justified by the information in the Applicant’s Environmental Report (p. 21) and its location in relation to transport infrastructure.
5. The Applicant contested An Taisce’s statement that the proposal would contravene the National Biodiversity Plan (6, 9) on the basis that the proposal would enhance the ecology and biodiversity of the area. 8.24 Response to Board by Co. Council on the An Taisce Submission, 28 Feb 2007 8.24.1 Item Description& Background Material
The Co. Council was invited by the Board to comment on the submission by An Taisce. The Co. Council contested An Taisce’s statement in relation to the effectiveness of the actions against the Applicant for the illegal infilling. The Co. Council noted that the EU proceedings in the case were still under consideration at the reasoned opinion stage and the Co. Council and DoEHLG were working with the EU to resolve the case. The Co. Council suggested that the EU was satisfied with progress to date.
8.24.2 Ecological Review
The following new ecological points were made in this submission:
1. The Co. Council is preparing a local biodiversity action plan by the Kilkenny Heritage Forum in accordance with DoEHLG guideline for such plans (8).
2. The concept of the compensation wetland is considered appropriate having regard for the lack of natures conservation designation on the Site. In a recent site visit by EU officials, they considered this a “reasonable solution” but sought further details on the size of the areas concerned and the ecological connectivity between the SAC, the NHA, the N25 Waterford Bypass compensatory wetlands and the Applicant’s compensatory wetland.
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In March 2007 the Board’s Inspector submitted his report on the case. Note that there is a small error in the Inspector’s photographs that accompany this report. Photograph No. 10, which is labelled as the mitigation (i.e. the compensation wetland) area, is in fact an area of reedbed between the railway and the N9 opposite the Redbridge service filling station. The mitigation area is actually on the other side of the railway where it is just visible on the right hand side of this photograph.
8.25.2 Ecological Review
Ecological points from the appraisal section of the Inspector’s report are summarised as follows:-
1. The Application concerns a “ small area of ecologically important wetland which has partly been spoiled by illegal dumping”.
2. The Site is not part of the NHA or the SAC and, therefore, does not have the same weight of statutory protection. However, it is part of the same eco-system and complements the designated areas.
3. Decision makers should apply the precautionary principle.
4. Biodiversity around the Site is “severely compromised by the long-standing and irreversible development which has already taken place”.
5. NPWS had no objection subject to implementation of their conditions (p. 29).
6. Removal of the unauthorised fill material was not recommended.
The Inspector then recommends that development should be allowed subject to several conditions. This recommendation was made with regard for the Site’s industrial zoning and because it would have no significant effect on designated areas or adversely affect biodiversity. The conditions specify the transfer of the compensation wetland to the Co. Council, compliance with NPWS conditions, and various good practice measures relating to biodiversity conservation.
Coveney Wildlife Consulting Ltd. 19/12/2007 38 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 Appendix 2. Terms & Abbreviations
Term Definition An Bord The Planning Appeals Board. An independent administrative body established in 1977 under the Pleanála Local Government (Planning & Development Act), 1976. Its principal function is the determination of planning appeals under the Planning and Development Acts. www.pleanala.ie An Taisce An Taisce is a Prescribed Body under the Planning Acts and the only one which is independent of the State. Local Authorities are obliged to consult it on development proposals that may affect areas designated in county development plans for various types of conservation www.antaisce.org Annexes I See SAC & SPA. and II Appeal The Appeal to the Board by Mr. Brendan McCann, a Waterford city resident, against the Appellant, decision to grant planning permission to the Applicant by the Co. Council (PL. 10.219971).l Applicant, Application by Purcell Brothers Ltd. to Kilkenny Co. Council for planning permission to retain Application infill on about 1.9 ha of a 5ha Site at Newrath, Kilculliheen, Co. Kilkenny - P.A. Reg. Ref. 05/1973). Permission was also sought to rearrange the infill, prepare the Site for development and to put in place ecological measures. biodiversity The variety of life on earth or biological diversity. It is protected by the UN’s Convention on Biological Diversity www.cbd.int/default.shtml , which Ireland ratified in 1996. In 2001, the EU’s Heads of State and Government set a target to halt the current rate of loss of biodiversity by 2010. In 2006, the European Commission issued a Communication and Action Plan, ‘Halting the loss of Biodiversity by 2010- And Beyond’ which sets out a programme of work aimed at meeting this target (4). Biosphere An ecological consultancy based in Co. Wicklow. Environmental Services Birds See SPA Directive Board See An Bord Pleanála. Co. Council See Kilkenny County Council Compen- This is 0.5 ha of existing wetland that is located adjacent to the railway cottage at the level sation crossing on the N9. It is about 40 m north of the Site. It is also adjacent to the compensatory wetland wetland being put in place as part of the N25 Waterford Bypass scheme. As part of this Application, the Applicant proposes to transfer ownership of this wetland to the Co. Council. Conservation An informal scale for assessing the ecological worth of a site ranging through international, Value national, regional to local. It was originally used in Ireland for Areas of Scientific Interest that preceded the NHAs (2). International sites would normally meet criteria for designation as SACs and/or SPAs, as would some national sites. Criteria for designation of NHAs have not yet been published but remaining national sites and many regional sites would be likely to qualify for NHA designation. The remaining sites could be considered for conservation in local authority heritage plans although they could be worthy of designation at NHA or SAC/SPA level if they had a strategic conservation value. e.g. as a connection between designated areas. CWC Coveney Wildlife Consulting Ltd. www.ecoveny.ie . In this case, they acted for the Board. Declan Brassil Chartered planning consultants based in Dublin. & Co. Ltd http://homepage.eircom.net/~declanbrassil/index.html Dept. of Environment, Heritage & Local Government; See NPWS Development Applications Unit; & Dúchas
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Term Definition DoEHLG The Dept. of Environment, Heritage & Local Government. The Government Department with responsibility for sustainable development and improving the quality of life through protection of the environment and heritage, infrastructure provision, balanced regional development and good local government. www.environ.ie EEA The European Environmental Agency aims to support sustainable development and to help achieve significant and measurable improvement in Europe's environment through the provision of timely, targeted, relevant and reliable information to policy making agents and the public bodies. www.eea.europa.eu EPA The Environmental Protection Agency which protects the environment in Ireland through its licensing, enforcement and monitoring activities. www.epa.ie European The Court of Justice of the European Communities is the judicial institution of the Community. Its main task is to examine the legality of Community measures and ensure the uniform Court of interpretation and application of Community law. It obliges administrations and national courts to Justice apply Community law in full and to protect the rights conferred on citizens by that law and to disapply any conflicting national provisions. http://curia.europa.eu/en/transitpage.htm European The name used by Irish statutory authorities and in Irish legislation for the combined suite of Site SACs and SPAs. See also Natura 2000. FPO The 1999 Flora Protection Order under section 21 of the 1976 Wildlife Act protects the plants listed on it and their habitats inside and outside areas otherwise designated for nature conservation. www.npws.ie/legislation/floraprotectionorder1999/ Fugawi A software package that links GPS receivers and personal computers. www.fugawi.com GPS Garmin, a company (www.garmin.com ) that sells Global Positioning System (GPS) receivers, (Garmin) including the etrex models, that use satellites signals to determine locations. Habitats See SAC Directive Iarnród Iarnród Éireann or Irish Rail. www.irishrail.ie Éireann Ireland 1965 OSI defined reference point used by GPS systems for linking latitudes and longitudes based on datum the WGS84 (World Geodetic System) datum to the Irish Grid. www.osi.ie Irish Grid The metric system of easting and northing co-ordinates, the “Irish Grid” is defined by OSI and Reference used for defining positions on the island of Ireland. www.osi.ie Kilkenny Co. The local and planning authority for Co. Kilkenny. www.kilkennycoco.ie Council Lepid- A scientific term for butterflies and moths. opterous Lower River A large river in south east Ireland that, with its many tributaries, flows through counties Suir Tipperary, Kilkenny and Waterford to join the combined Rivers Barrow and Nore at Cheekpoint in Co. Waterford. It is tidal in the vicinity of the Site. Malone Malone O’Regan Environmental Services Ltd., an Irish engineering and environmental O’Regan consultancy www.maloneoregan.ie/ Murray Ó Murray Ó Laoire Architects, an Irish and international design company. www.murrayolaoire.com Laoire N25 Water- In the vicinity of the Site, the N25 Waterford Bypass involves replacement of the existing N9 ford Bypass with a new road from the Newrath roundabout to a new roundabout at Granny to connect with the N25 bypass. This new section of the N9 will run to the north of the existing N9 and through the Grannyferry NHA. Natura 2000 The EU’s collective name for the suite of SACs and SPAs. See also European Site.
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Term Definition NHA Natural Heritage Area are areas, other than SACs and SPAs, designated by NPWS for protection for nature conservation under the 2000 Wildlife Amendment Act. These comprise about 790 sites of national nature conservation value which do not meet the requirements of SAC or SPA designation. Many are still at the proposed stage but 148 bogland sites were designated in 2003 and 2005. Note that most sites of conservation importance that are now included in the SPA and/or SAC listings were originally listed as proposed NHAs in the mid-1990’s In this report, NHA includes designated sites and the remaining proposed sites. http://www.npws.ie/ConservationSites/NaturalHeritageAreasNHAs/ Northern The existing 0.14 ha of wetland habitat at the northern end of the Site. It is also referred to as the Wetland northern reed and sedge swamp. NPWS National Parks and Wildlife Service, the statutory agency for nature conservation in the Republic of Ireland. It’s Development Applications Unit deals with enquiries from planning authorities about planning applications that could affect areas of nature conservation importance. The NPWS is now part of the part of the Department of the Environment & Local Government. It was formerly part of Dúchas (now abolished), the State’s heritage agency, which in turn was part of the Department of Arts Culture and the Gaeltacht and later the Department of Arts, Heritage, Gaeltacht and the Islands. www.npws.ie/en , www.environ.ie Observer, An Observation in October 2006 by Ms Rita Canney, a Waterford City resident, in support of the Observation Appeal against the planning permission for the Application. OD Ordnance Datum – a reference point for tide heights. OSI The Ordnance Survey of Ireland, the State’s mapping agency. www.osi.ie Piezometer A device for measuring ground water flows. River A small tributary of the River Suir that flows past the Site and connects the Grannyferry NHA th Blackwater with the Lower River Suir SAC. In the 19 century it flowed along all of the southwestern boundary of the Site but its mouth was diverted upstream by about 700 m to facilitate transport of quarried material from upstream to the Suir. It is one of several Blackwater Rivers in Ireland, the best known of which is the Munster Blackwater which flows into the sea near Youghal in Co. Cork SAC Special Area of Conservation, designated for habitats listed on Annex I and species listed on Annex II the EU Habitats Directive (92/43/EEC). The Directive is implemented in the Republic of Ireland via the 1997-2005 Natural Habitats Regulations and the 2000 Wildlife Amendment Act. SACs are protected by the Natural Habitats Regulations during the various proposal and candidate stages and the term SAC is used cover all stages in the this report. http://www.npws.ie/ConservationSites/SpecialAreasofConservationSACs/ SFRB The Southern Regional Fisheries Board is the statutory authority charged with ensuring that the inland fisheries within its jurisdiction are conserved, managed, developed, promoted and utilised in a sustainable manner. www.sfrb.ie Site An area of 5 ha of partially infilled wetlands adjacent to the N9 near the junction with the N24 at Newrath, Kilculliheen in southernmost Co. Kilkenny. It is 2.5 km from Waterford city. In this report, the Site is defined to exclude the compensation wetland. Southern The existing 1.27 ha of reedbed habitat at the southern end of the Site. It is also referred to as the Wetland southern reedbed. SPA Special Protection Area, designated for bird species listed on Annex I of the EU Wild Birds Directive (79/409/EEC) and for migratory species. As with SACs, SPAs are protected by Article 6 of the EU Habitats Directive (92/43/EEC). The Directive is implemented in the Republic of Ireland by the European Communities (Conservation of Wild Birds) Regulations (various dates), the 1997-2005 Natural Habitats Regulations and the 2000 Wildlife Amendment Act. SPAs are protected during the proposal stages and the term SPA is used cover all stages in the this report. www.npws.ie/ConservationSites/SpecialProtectionAreasSPAs/
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Term Definition Wildlife Acts The 1976 Wildlife Act and the 2000 Wildlife Amendment Act give a legal basis to the conservation of nature, the protection of biodiversity and the regulation hunting in Ireland. They also provide for the designation of NHAs and the implementation of international nature conservations conventions. The Wildlife Acts work as a unit with the Natural Habitats Regulations to protect SACs and SPAs http://www.npws.ie/WildlifePlanningtheLaw/
Appendix 2. Scientific Names of Species in this Report
English Name 1 Scientific Name 1
Plants Blackthorn Prunus spinosa Common Reed Phragmites australis Hawthorn Crataegeus monogyna Holly Ilex aquifolium Meadow Barley Hordeum secalinum Insects Emperor Dragonfly Anax imperator Invertebrates Freshwater Pearl Mussel Margaritifera margaritifera White-clawed Crayfish Austropotamobius pallipes Fish Brook Lamprey Lampetra planeri River Lamprey Lampetra fluviatilis Sea Lamprey Petromyzon marinus Twaite Shad Alosa fallax fallax Birds Sand Martin Riparia riparia Barn Swallow Hirundo rustica Hen Harrier Circus cyaneus Reed Bunting Emberiza schoeniclus Sedge Warbler Acrocephalus schoenobaenus Mammals Otter Lutra lutra 2 Scientific names of plant are from (19), of insects from (17), invertebrates from (16, 20), of fish from (21) of bird names from (13) and of mammals from (12).
Coveney Wildlife Consulting Ltd. 19/12/2007 42 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 Appendix 3. Site Areas at Newrath, Kilculliheen, Co. Kilkenny Insert Excel table form separate file
Coveney Wildlife Consulting Ltd. 19/12/2007 43 Infill Retention at Newrath, Kilculliheen, Co. Kilkenny - PL 10.219971 Final, June 2007 9 References 1. Arup Consulting Engineers. 2001. N9/N10 Kilcullen to Waterford - South, Constraints Study Report. National Roads Authority www.nra.ie. 2. Cabot, D. 1981. Areas of Scientific Interest in Ireland. An Foras Forbartha, Dublin. 3. Commission of the European Communities - DG Environment. 1999. Interpretation Manual of European Habitats. Commission of the European Communities http://ec.europa.eu/environment/nature/nature_conservation/natura_2000_network/habitats_habitats_ directive/interpretation_manual/index_en.htm. 4. Commission of the European Communities. 2006. Halting the loss of Biodiversity by 2010- And Beyond. Sustaining Ecosystem Services for Human Well-Being. Commission of the European Communities http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0216en01.pdf. 5. Commission of the European Communities. 1995. Wise use and conservation of wetlands - Commission Communication to the Council and the European Parliament Com (95) 198 Final. Commission of the European Communities http://ec.europa.eu/environment/nature/nature_conservation/useful_info/documents_publications/pdf /wetlands_en.pdf. 6. Dept. of Arts Heritage Gaeltacht and the Islands. 2002. National Biodiversity Plan. Government of Ireland. 7. Dept. of Environment Heritage & Local Government. 2006. Development Plans -Public Consultation Draft of Guidelines for Planning Authorities. Dept. of Environment Heritage & Local Government, http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/FileDownLoad,1604,en.p df. 8. Dept. of Environment Heritage & Local Government. 2006. Guidelines for the Production of local Biodiversity Action Plans. Dept. of Environment Heritage & Local Government. 9. Dept. of Environment Heritage & Local Government. 2005. Interim Review of the National Biodiversity Plan 2002 - 2006. Government of Ireland. 10. European Environment Agency. 2005. The European Environment - State and Outlook 2005, Copenhagen. 11. Fossit, J. A. 2000. A Guide to Habitats in Ireland. The Heritage Council, Kilkenny. 12. Hayden, T., and R. Harrington. 2000. Exploring Irish Mammals. Town and Country House Ltd., Dublin, Ireland. 13. Hutchinson, C. D. 1989. Birds in Ireland. T & AD Poyser, Calton. 14. Kilkenny County Council. 2002. County Development Plan. Kilkenny County Council http://www.kilkennycoco.ie/cdp/index.html. 15. Kirby, P. 2001. Habitat Management for Invertebrates - A Practical Handbook. Royal Society for the Protection of Bird, Bedfordshire. 16. Moorkens, E. A. 1999. Conservation Management of the Freshwater Pearl Mussel Margaritifera margaritifera. Part 1: Biology of the Species and its Present Situation in Ireland. Irish Wildlife Manuals No. 8. 17. Nelson, B., and R. Thompson. 2004. The Natural History of Ireland’s Dragonflies. Ulster Museum, Belfast. 18. Newton, S., A. Donaghy, D. Allen, and D. Gibbons. 1999. Birds of Conservation Concern in Ireland. Irish Birds 6:333-344. 19. Preston, C. D., D. A. Pearman, and T. D. Dines. 2002. New Atlas of British & Irish Flora. Oxford University Press, Oxford, UK. 20. Reynolds, J. D. 1998. Conservation Management of the White-clawed crayfish, Austropotamobius pallipes, Part 1. Irish Wildlife Manuals No. 1. 21. Whilde, A. 1993. Threatened Mammals, Birds, Amphibians and Fish in Ireland Irish Red data Book 2: Vertebrates. HMSO, Belfast.
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