Mr. Jack O'Sullivan:

I thank the committee for the opportunity to make this brief statement on behalf of Mr. Barrett. I am an environmental scientist and I have been practising independently since 1977. Mr. Barrett referred to how long I have been around and that is it. I was a science policy analyst with the National Science Council before that. Much of my work in those years was on the interface between planning and environment. I have undertaken environmental impact statements and evaluated them and done screening reports, and I have always stressed to my clients the need for strict compliance with planning and environmental legislation. Mr. Barrett has given members a very good account and I will follow on with a brief blow-by-blow account of the environmental and legal issues.

The fact that the marina was unauthorised was confirmed to us, both by Waterways Ireland and Westmeath County Council. On behalf of Mr. Barrett we initially sought to find out if it was authorised or not and Westmeath County Council said it had no planning permission. That development, as shown by Mr. Barrett, has taken place within and adjacent to the Lough Ree SAC and the Lough Ree SPA for wildlife, both of which are important conservation sites of European community interest. An environmental impact assessment report, EIAR, and a screening report for appropriate assessment should have been completed for that development but they were not. No EIAR was completed and a screening report for appropriate assessment was prepared by the developer much later in 2014.

It would have been possible for the marina owner and operator to apply to An Bord Pleanála for leave to make an application for what was then termed “substitute consent”, which was akin to retention permission. This could have been done provided that the application was accompanied by a remedial environmental impact statement, or a remedial Natura impact statement, or both. Unfortunately, the marina owner did not do so.

He made an application to Westmeath County Council for retention of the marina. Since that backward-looking, substitute consent can only be considered by An Bord Pleanála, the council had no option but to declare that the planning application was invalid.

At that time, Waterways Ireland also stated that the encroachment of the marina into navigable water under its control could not be regularised by issuing a lease until the planning issue had been resolved. Waterways Ireland stated that it could not issue a lease unless the planners were happy with the marina, but the planners were not happy. Even if Westmeath County Council had the legal authority to consider a planning application - it did not, as that authority was given to An Bord Pleanála - the applicant could not legally have sought planning permission because the development of the marina was on land that he did not own and was not under his control. The only agency that could have given permission for the applicant to seek planning permission was Waterways Ireland, which owned the site.

To make matters even more complicated, the Supreme Court delivered a judgment in July 2020 that had the effect of removing the legislation under which An Bord Pleanála was empowered to grant substitute consent for a development that had already taken place. That consent was only allowed for in exceptional circumstances. A judge in another case said that these circumstances were not exceptional. The same legislation, which was an amendment to the Planning Act, was struck down for the additional reason that it failed to make provision for public participation at the leave application stage for substitute consent. The court found that this provision, which allowed the applicant to go to An Bord Pleanála directly without any public consultation, was inconsistent with the right to public participation in environmental decision making enshrined in or conferred by the EIA directive and the Aarhus Convention.

The fact that the applicant did not initially attempt to seek planning permission from Westmeath County Council or to obtain a lease from Waterways Ireland has had a series of consequences that are now difficult to resolve satisfactorily in compliance with the current legislation and the relevant EU directives. The marina in question, if it were to be a proposed new development on a greenfield site, would require planning permission, the production of an EIA report, a Natura impact statement because it will affect an SPA and an SAC, and a lease from Waterways Ireland. However, as Mr. Barrett has shown, the marina has been in existence for a number of years, it has expanded in size and none of the planning and environmental requirements have been met, nor is there any legislation allowing the marina to become authorised and Waterways Ireland cannot consider granting a lease until the planning issues have been resolved.

Two options for addressing this problem might be considered by the committee, if it wishes to do so. Both options are difficult and neither is perfect in any way. First, the unauthorised marina may be left in situ, but this gives a clear message to the public that undertaking development without seeking the necessary consents may, in the long run, be a successful strategy. This solution weakens planning legislation and brings planning and development control into disrepute. Second, the unauthorised marina, or those sections of it constructed since 2007, should be removed with as little ecological disturbance as possible. While this might be legally correct, the financial consequences for the marina operator would be severe and the removal of some of the marina would be likely to cause some ecological disturbance with only minor ecological benefits. Considering these options and others that have not occurred to me is something that the committee may wish to discuss after taking what evidence it wishes to hear from Waterways Ireland, Westmeath County Council, the National Parks and Wildlife Service, the Department and other witnesses.