Green Light at the High Court and an illustration of the reasons why

GREEN LIGHT AT THE HIGH COURT

On Monday 14 October 2019 Justice Noonan at the High Court considered our application for a Judicial Review of the An Bord Pleanala decision to grant planning permission for the Bartra development at Bullock, against the advice of their own planning inspectors and our county council.

This was only the application for a JR and, now having been granted “leave”, the actual thing is likely to happen in 2020.   But now given the green light to proceed with the review, we have been rummaging through the Bulloch Harbour Preservation Association photo box to remind ourselves of some of the reasons why we are pursuing this judicial review…

Multiple risks of flooding

The site proposed for development by Bartra Property is the former Western Marine commercial building and boatyard at Bullock Harbour.  This site is located at the sea end of Bullock Harbour and is so subject to extremely localised flooding that residential development has never previously occurred here.  Different types of flooding occur at Bullock and it helps to understand the nature of each.  Below we talk about tidal flooding and wave over-topping.

First there is the sort of tidal flooding that you expect to see along the coast during severe weather events where the waves lash over the harbour walls.

des march 2018 bullock

But the occurrence and character of tidal flooding is not that simple.  Spring tides can push the sea level up at high tide so that the pier is swamped on lovely days.  Furthermore, “fresh” east and north east winds are enough to whip up the seas so that high tide is surprisingly lively.  We have posted below examples of both of these.  Neither occurred during extreme weather events, the lower image being from a few days before storm Lorenzo this year.  Both were bad enough to make access to the  pier dangerous.  The entrances to the apartments and cafe proposed by Bartra Property would be located close to the pier and that end of the quay which is subject to tidal flooding.

bullock-pier-swamped.jpg

bullock 1 oct2019

The second kind of flooding that we experience at Bullock is wave over-topping.  This is a coastal phenomenon that occurs at certain rock formations and in specific weather and tidal conditions.  The big Bullock rocks are just such a formation and the weather conditions involve a sustained east or north easterly wind (the fact of the sustained wind is more important than the wind speed) and high tide, especially compounded by a spring tide and /or full moon.  The result is that disproportionately huge waves descend on a small part of Bullock – that small part being the rocky outcrop and the former Western Marine building, where Bartra plans to build three 4000 sq feet hyper-luxury homes.  These waves are higher by far than any tidal waves and carry debris and projectiles.

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Overtopping descends on Western Marine building
bullock overtopping
And the view from the harbour …
Screenshot 2019-10-10 at 10.50.06
The volume of water from persistent wave overtopping runs through the Western Marine site and flows in torrents into the harbour

Again, the most alarming wave-overtopping occurs during extreme weather but a “fresh” wind on the Beaufort Scale is enough to generate significant overtopping on a lovely sunny day.  The image below is from February 2017 – no storm, no storm warnings.

Screenshot 2019-10-10 at 10.51.29

Thanks to the BHPA supporters who have provided images and videos – these are only a small sample.  Some of these photos are stills from videos are available to view on our gallery and Facebook group “Save Bulloch Harbour”.

 

Public meeting – 23 October

A public meeting, organised by Bulloch Harbour Preservation Association, will be held on Wednesday 23 October at 8 pm in Fitzpatrick’s Castle Hotel, Killiney.  All are welcome to attend – no booking required.  The meeting will update local people and supporters on the progress of the Save Bulloch Harbour campaign and the fund-raising appeal for Judicial Review.

On 14 October the High Court will hear our application for judicial review.  The purpose of the judicial review is to challenge the An Bord Pleanala decision (against the recommendation of their own inspector) to grant planning permission for Bartra Property’s proposals for the Western Marine site at Bulloch.   By the 23 October, we will know that the JR is proceeding and be in a position to update the public on what has led to the Judicial Review, why we are pursuing it, and the fabulous support and generous donations received.

 

Judicial Review proceedings commenced

Members of Bullock Harbour Preservation Association were at the High Court today 21 August 2019 to hear Mr Justice McDonald open our application for Judicial Review of the An Bord Pleanala decision to grant planning permission for Bartra’s proposed “development” at Bullock.  The application had to be lodged within eight weeks of the ABP decision, hence the timing.
Being the summer’s “vacation judge”, Mr Justice McDonald promptly (and as expected) adjourned the proceedings and the full application will be heard on 14 October 2019.  If that hearing gives us leave to pursue the judicial review, there will then follow various actions on the part of both sides’ legal teams and we would expect that in November we will be given a date in 2020 for the actual JR.  It’s a slow old business.
Continuing thanks to all those who have given the moral and financial support that has enabled this legal action.  We will be keeping supporters posted on significant developments.  In principle we would like to hold a public meeting later in October when we will be able to explain more about the Judicial Review process and the case being pursued.

A big thank you

A big thank you from all of us at Bulloch Harbour Preservation Association to all those people who have sent expressions of support and to the hundreds of donors who have been sending in sums of money small and large.  All is very much appreciated.  We are not able to thank everyone individually, so please accept this as heartfelt thanks.

We are mindful of the need to account for donations and our treasurer is diligently recording them all.  Our donate page now includes a FAQ and we will add to this over time.  If you do need an individual acknowledgement, please email us at savebulloch@gmail.com.  Please bear in mind that bank transfers can be difficult to attribute to a specific individual.

Have your say on the masterplan for Sandycove and Bullock Harbours

Amid the hurly burly of judicial reviews, it is easy to forget about the current (July/August 2019) Dun Laoghaire Rathdown County Council consultation on the draft masterplan for Bullock and Sandycove Harbours. This is what the council says about the masterplan: it is “intended as a non-statutory guide to the potential future use and enhancement of these Harbours, as well as providing context and guidance to influence the future function and operation of both places”.

DE-CONFUSION ALERT!!  A county council masterplan may only look at the land in public ownership (that’s the County Council and Dublin Port Company) and not at land in private ownership (i.e. the former Western Marine site and adjacent land now owned by Bartra Property Capital group) which is the subject of the contentious planning application granted permission by An Bord Pleanala, and the subject of many other articles on this site and our Donate page.

Copies of the draft masterplan are available to see in the town hall and public libraries.  Details here.  Consultation runs to 19 August 2019 incl. So citizens, do have a read and send in your comments.

What is a judicial review?

The government website citizensinformation.ie states that ‘the High Court has a power or “jurisdiction” called “judicial review”. Judicial review is a way for the High Court to supervise the lower courts, tribunals and other administrative bodies to ensure that they make their decisions properly and in accordance with the law. Judicial review is primarily concerned with the decision-making process rather than with the substance of the decision. There is, however, a limited scope for review of the substance of a decision as well. ”  The site goes on to explain that there are areas of “public decision-making which have been singled out by the Oireachtas” as being of particular policy concern. These include asylum, pollution control and planning.

So in the case of Bulloch Harbour Preservation Association, the purpose of a Judicial Review is to consider whether An Bord Pleanala (the administrative body in question) made its decision to grant planning permission for the Western Marine site “properly and in accordance with the law”. If the High Court accepts our application for Judicial Review, they will be looking at the decision making processes in ABP and will not be re-running the merits, or lack thereof, of the planning application by Bartra Capital group. The series of public decisions that took place are:

  • December 2017: Bartra applies for planning permission for the former Western Marine site at Bullock Harbour.
  • February 2018: the planning authority, Dun Laoghaire Rathdown County Council, refuses planning permission.
  • March 2018, Bartra appeals this refusal to An Bord Pleanala, the national planning appeals board.
  • May 2019, ABP’s inspector recommends to the board that they uphold the Dun Laoghaire Rathdown refusal.
  • June 2019, An Bord Pleanala grants planning permission. We have been told that they reject the recommendations of their own inspectors in 10-15% of cases

In terms of an actual court hearing, we are looking forward to attending the Judicial Review which would take place in the Four Courts on the quays in Dublin. It’s not the kind of court case where witnesses are called, so we’ll be in the public gallery watching lawyers wade through files. 

This article by Karen Walsh from the Cork Examiner in 2016 provides a good layman’s description of an actual Judicial Review that happened in County Cork.

Repairs to damaged quays at Bullock

Here’s the news from Dublin Port Company re the repairs to the Bullock piers.

The repair works to the damaged quay wall caused by Storm Emma on the Eastern end of the pier are now complete. This area is now open to the public once more.

The completion of the works in this area was delayed for two main reasons: first the works being in a tidal zone, as well as poor weather over the winter and spring, resulted in many days being lost where grouting work could not be carried out. Secondly, midway through those repair works on the Eastern end, focus was moved to the Western end of the pier where the corner cope stones at the exit from the harbour had further subsided to such an extent that they were in danger of possibly collapsing into the sea. To address this additional challenge, all work on the Eastern end of the pier was halted temporarily while the cope stones were, firstly numbered and then, removed from the Western end. The numbering was deemed essential as it would make relocating each stone in its correct original position easier. (There was no stone numbering of the cope stones on Eastern end of the pier prior to Storm Emma, thus making the relocation process there slow and tedious.) While removing these cope stones on the Western end it was discovered that earlier repairs had been attempted a number of years ago to address the subsidence. It was discovered that concrete had been poured into the stone fill behind the cope stones, as well as in and around the cope stones themselves, which in turn slowed down the entire operation of removing the stones.

Following the removal of the cope stones substantial underwater works took place to stabilise the stone fill material and to build a new foundation under the quay wall down to bed rock. While these underwater works were taking place at the Western end of the pier, the final stones were replaced at the Eastern end of the pier with the final grouting taking place this week. The next phase over the month of August (after the builders holidays) on the Western end is to relay the bottom two course of stones underwater by divers and then to rebuild the rest of the cope stones back to their original position and replace the original fill material.

Dublin Port Company is aware of the disruption caused to so many people while these repair works have been done over the past number of months. However you will appreciate the problems were caused by factors outside our control and we are endeavouring to have the harbour repaired as quickly as possible so as its many users can enjoy it once more.   

Bullock campaigners to seek Judicial Review


Announcement from the Bullock Harbour Preservation Association: we have taken legal advice and the course of action is clear.    We need to overturn the irrational decision of An Bord Pleanala to grant planning permission for the Bartra development at Bullock Harbour and our only option is to seek a judicial review in the High Court.  The High Court is the only body that has the power to quash a decision by a public body such as ABP.   
This is a huge undertaking but it is essential if we are to stop Bartra.  We are encouraged by the massive support that you have given this campaign.  And we are encouraged by other planning campaigns elsewhere that have successfully engaged in Judicial Review.  We will be writing again to explain what a Judicial Review is. We note, however, that this is an expensive course of action and there is an immediate need for very substantial funds.  We know that many people contributed financially to the previous stages of the campaign (for which we remain most grateful) but we now have to ask for more donations.  We will be posting again very soon to explain how to give.  We welcome all contributions small and large.  If you are not able to give in direct cash, we will suggest how you could otherwise help.  

Thank you again for your overwhelming good wishes.  The Committee of Bulloch Harbour Preservation Association.

Thank you for the expressions of support and next steps…

A message from Bullock Harbour Preservation Association. A big THANK YOU to all who have written or posted on Facebook or Tweeted or commented or stopped us in the street to express your outrage, disappointment and bafflement at the decision of An Bord Pleanala to grant planning permission for the Bartra development at Bullock.

There have been many suggestions made re all sorts of actions that could now be taken. The ABP decision places the campaign in a super-technical place. At the same time we have to focus time and energy on those activities that will generate the best result. So this may mean that traditional campaign and protest activities, as suggested in this group and other local groups, have to take a back seat. We’ll see. Anyway, we are working on figuring out the best course of action and are taking advice re same. It may be a bit of time before we can tell you the plan of campaign and very much hope that we can count on your support then, as now. With best wishes from the BHPA committee.

An Bord Pleanala decision – the details

Further to the decision of An Bord Pleanala to reject the recommendations of their own inspector and to grant permission to the Bartra Property group to develop the site adjacent to Bullock Harbour, we are providing links, below, to the documents in question.

ABP’s decision is set out here.

ABP’s inspector’s report that recommends upholding the original County Council decision to refust planning permission is set out here. This is a 91 page document. The inspector’s actual recommendation, sections 8/9, is set out below.

Recommendation

Having regard to the foregoing, I recommend that the decision of the Planning Authority be upheld in this instance and that permission be refused for the proposed development for the reasons and considerations set out below: 9.0 Reasons and Considerations 1.Having regard to the predominance of residential use within the proposed development and the low proportion of the total floor area intended for waterfront and harbour related uses, including commercial marine-based activity and public water-based recreational uses, together with the limited developable site area being provided to support and service such uses, it is considered that insufficient provision has been made for waterfront, harbour and marine related uses and that the proposed development would materially contravene the land use zoning objective for the site as set out in the Dún Laoghaire-Rathdown County Development Plan, 2016-2022 which seeks ‘To provide for waterfront development and harbour related uses’, and would further undermine the achievement of Specific Local Objective No. 22: ‘Bullock Harbour’ which aims to provide for an appropriate mixed-use redevelopment of the lands in question to include for commercial marine-based activity and public water-based recreational uses. The proposed development would therefore be contrary to the proper planning and sustainable development of the area. 2. Having regard to the location of the proposed development in an area which has been identified as potentially liable to flood events and significant wave overtopping,and to the provisions of the ‘Planning System and Flood Risk Management,Guidelines for Planning Authorities’ issued by the Department of the Environment, Heritage and Local Government in November 2009, the Board is not satisfied, on the basis of submissions made in connection with the planning application and the appeal, that the subject site is an appropriate location for the scale and type of development proposed or that the proposed development would not result in serious injury to the amenities of persons and property as a result of this. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.3.Given the prominent quayside and coastal location of the proposed development and taking into account the special character of the immediate harbour area, it is considered that the proposed development does not provide for a suitably integrated, high quality,mixed-use design which considers the site holistically and responds appropriately to the unique character of Bullock Harbour. The proposed development would therefore be seriously injurious to the special character and amenities of the harbour area and would be contrary to the requirements of Specific Local Objective 22 as set out in the Dún Laoghaire-Rathdown County Development Plan, 2016-2022. The proposed development would therefore be contrary to the proper planning and sustainable development of the area. Robert Speer Planning Inspector 29thMay, 2019

An Bord Pleanala ignores their own inspector and grants permission for Bullock Harbour development

HERE’S THE BAD NEWS re the proposed Bartra development for Bullock Harbour. In today’s post (2 July 2019) a letter from An Bord Pleanala with the decision to “GRANT permission for the above proposed development …”. The letter is long and not easily captured in a few words or in an image but note “In deciding not to accept the Inspector’s recommendation to refuse permission…” That is, ABP’s own inspector recommended against the development and the board chose to overrule them.

There’s a lot to say but we’ll leave it here for now. More to follow.