Martin Browne (Tipperary, Sinn Fein)
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I welcome everyone to this meeting which is being held over Microsoft Teams. Apologies have been received from Senator Buttimer. On my own behalf and on behalf of the committee, I send our condolences to Senator Buttimer on the death of his father yesterday. May he rest in peace.

The Ceann Comhairle, Deputy Seán Ó Fearghaíl, and the Cathaoirleach, Senator Mark Daly, have published a Covid-19 code of conduct for the parliamentary community, January 2022. Masks, preferably FFP2 grade, should always be worn during the meeting except when speaking. This will help to reduce the risk of Covid-19 including the Delta and Omicron variants. I ask for everyone's full co-operation.

I propose that we approve the minutes of the private and public meetings held on 19 and 22 January, which have already been approved at a virtual meeting. We must do this for procedural reasons. Is that agreed? Agreed.

I remind members of the constitutional requirement that they must be physically present within the confines of the place in which Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting.

Before we start, I wish to explain some limitations to parliamentary privilege and the practice of the Houses regarding references witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. However, the witnesses are giving evidence remotely from a place outside of the parliamentary precincts and, as such, may not benefit from the same level of immunity from legal proceedings as a witness who is physically present does. Witnesses may think it appropriate to take legal advice on this matter.

The witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any of their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that the witnesses comply with any such direction.

This committee will observe fair procedures in these meetings. If any other persons identified in evidence before this committee is of the opinion that a mistake or a fact of misstatement, including a misstatement by the omission of necessary or relevant context, has been made affecting him or her, they are invited to give a statement of evidence in writing and relevant documents to this committee. They will also be given an opportunity to appear before the committee if they so wish.

Today we resume consideration of public petition No. 9/21 which relates to unauthorised development in the name of Michael Barrett and No. 23/21 in the name of Mr. Jamie Forde Kelly.

I extend a warm welcome to the representatives of Waterways Ireland and Westmeath County Council. From Waterways Ireland we are joined by Mr. Andrew Nixon-King, marketing and development director, Mr Éanna Rowe, western regional manager and Ms Sinéad Mallon, head of administration for property and legal. From Westmeath County Council we are joined by Mr. Barry Kehoe, director of services transportation, planning and economic development and Mr. Cathaldus Hartin, senior planner.

I propose that we publish the witnesses' opening statements on the committee website. Is that agreed? Agreed. Witnesses should make their opening statements for around ten minutes, after which we will have questions and comments from members. I ask them to keep to around five minutes so that members can get in more than once to speak.

Mr. Andrew Nixon-King:

I thank the committee for the opportunity to make a brief opening statement on behalf of Waterways Ireland on public petition Nos. 9/21 and 23/21. My name is Andrew Nixon-King, I am the marketing and development director in Waterways Ireland. I am joined by my colleagues Mr. Éanna Rowe, our western regional manager and Ms Sinéad Mallon, our head of administration for property and legal.

Waterways Ireland is the cross-Border navigational authority responsible for more than 1,000 km of inland navigable waterways across the island of Ireland. It is the largest of six North-South implementation bodies established under the Good-Friday Agreement. Its statutory function is to manage, maintain, develop, and restore specified inland navigable waterways, principally for recreational purposes. Last year, more than 3.2 million people used the waterways, creating social, economic, and environmental well-being valued at €560 million annually.

Waterways Ireland was established through the transfer and consolidation of assets of multiple agencies, including the Shannon Navigation Commissioners, CIÉ, OPW, Rivers Agency and the Department of Arts, Heritage, Gaeltacht, and the Islands, inheriting properties that were previously the responsibility of these organisations. Very little of this property was registered in the Land Registry.

Waterways Ireland is before the committee to provide information in respect of petitions 9/21 and 23/21. These relate to developments at Lough Ree. There are several statutory provisions dealing with the River Shannon and Waterways Ireland property ownership. An 1839 Act appointed and empowered the Shannon Commissioners to determine and define the limits of the River Shannon and to produce 45 maps known as the Shannon jurisdiction maps, which show property boundaries and jurisdiction. Subsequent legislation transferred this ownership to Waterways Ireland. The immediate focus of Waterways Ireland on its establishment was to ensure waterways were open and accessible.

In 2009, Waterways Ireland established a land recovery team, comprising two staff members, to secure the property portfolio on the Royal Canal. This took four years to complete. In 2021, we established a dedicated small group of staff to focus exclusively on recovery and first registration. We continue to examine encroachments, including the alleged encroachments referred to in these petitions. Currently, 52% of our property portfolio is registered or at an advanced stage of registration. We anticipate completing the programme to secure the property portfolio transferred to Waterways Ireland will take significant resources. The detail involved in registering our property portfolio is complex with significant administrative and legal inputs.

In relation to the leasing of Waterways Ireland property, planning permission is typically a prerequisite to considering any development and granting leases on our property. In relation to Portaneena, this development began in the 1950s and has taken place incrementally since then. Waterways Ireland was notified in 2012 about a development at Portaneena, parts of which were alleged to be unauthorised and encroaching on our property. Since then, Waterways Ireland has conducted inspections and written to the occupiers. We understand the same development was also brought to the attention of Westmeath County Council in 2012.

In 2017, Tidebrook Limited, of which the petitioner Mr. Michael Barrett is or was a director, applied to the Circuit Court for an injunction under section 160 of the Planning Acts in respect of the alleged unauthorised development, naming The Portaneena Company Limited and Waterways Ireland as respondents. The Circuit Court made an order in 2019 refusing the application and dismissed the proceedings. Waterways Ireland deferred completion of its own investigations of alleged unauthorised development at Portaneena until the planning authority had completed its investigations into the planning status, and until all litigation under the Planning Acts had been determined.

It is important to note that the Circuit Court has now ruled on this matter. The court found no evidence that Waterways Ireland had engaged in any alleged unauthorised development or had consented to or facilitated any alleged unauthorised development and had acted in good faith in relation to all aspects of the matter. The judge stated she "was not satisfied that the applicant demonstrated proof of any adverse environmental or planning impact". Tidebrook Limited filed a notice of appeal to the High Court and later withdrew the appeal in July 2020. We are not in a position to go into the specifics of any alleged encroachment at this time as it may pre-empt the outcome of any investigation and risk prejudicing any future action Waterways Ireland might wish to pursue.

Mr. Barry Kehoe:

By way of introduction, my name is Barry Kehoe and I am director of services for transportation, planning and economic development at Westmeath County Council. I am accompanied by Mr. Cathaldus Hartin, senior planner with responsibility for delivering the daily planning functions of the local authority. I welcome the opportunity to address the Joint Committee on Public Petitions and to provide assistance on matters related to the aforementioned petitions. In this regard, it should be noted that the council has engaged extensively with respect to all developments to which the petitions relate. Such engagement constitutes prolonged enforcement and associated legal actions and in this regard a brief summary of the history associated with the sites is set out in appendix 1. This is included for the record but does not form part of the council's statement to the committee today.

Westmeath County Council has been engaged in planning enforcement activities in this area for many years and it is acknowledged that there are several developments on and adjacent to the lakes and the River Shannon that do not have the benefit of planning permission. In some cases, the development in question predates the Planning Act of 1963 and in other cases, development took place on an incremental basis over the years without recourse to the planning authority. Other development may have been undertaken in blatant disregard of planning laws and it should be noted that the council remains actively engaged in enforcement proceedings in suspected cases of unauthorised development, save for circumstances in which the Statute of Limitations applies.

The council monitored the hearing of the committee held on 9 December 2021 and welcomes this opportunity to give the council's perspective on the general planning issues raised. By way of opening, it is considered that an Oireachtas committee is not an appropriate forum to ventilate legal arguments on particular cases, which have already been subject to court hearings and may be subject to ongoing legal action now or in the future. Furthermore, this is a public meeting, none of the affected parties is present or represented and the council does not benefit from the protection of privilege that is in place for Members of the Oireachtas. It has been noted that Tidebrook Limited, to which one petitioner would appear to be associated, is listed in the Legal Diary as having an ongoing High Court action against Portaneena Marina Limited, which is the subject of the petition. Rather than discussing the individual cases, I refer members to the factual position from a council perspective, which is set out in the appendix to this statement.

In terms of general planning enforcement issues, having regard to the general issues raised at the previous meeting of the committee, the council comments as follows. While the local authority is charged with the implementation of the Planning Acts, including planning enforcement, it is important to note that the council is not all-powerful in this respect. The successful implementation of the planning system requires the co-operation of a large number of stakeholders, including the council but also landowners, developers, business people, the courts, Departments, State and semi-State agencies and local communities.

It is the case that the council has, on many occasions, prosecuted individuals and companies to the full extent permitted under the law and has nonetheless failed to achieve planning compliance. While the legislation provides for the council to take direct action, this is not always practical or reasonable. The process associated with securing these orders can be lengthy and costly and can carry significant risk for the council. In this context, the council must, in all matters, be mindful of consequences associated with interfering with citizens' rights, property rights, proportionality and legal and financial risk.

We recognise the concerns expressed by the petitioners in respect of the current legislative provisions in this area. Planning legislation has evolved significantly since the introduction of the Planning and Development Act 2000, undergoing extensive and incremental amendment. Significant challenges have been presented in terms of alignment between national and European legislative frameworks, as evidenced in the increasing rate of challenge to planning decisions, many of which are based on environmental matters. As such, the frameworks within which the council operates are complex and subject to legitimate challenge. In this regard, the council welcomes a recent initiative by the Department to carry out a full review of the Planning Act.

A lacuna exists in our planning legislation in that it is not possible to regularise development in instances where an environmental impact assessment report, EIAR, or Natura impact statement, NIS, is required as part of an application for retention permission. Previously, a mechanism existed under the substitute consent process, as set out under Part XA of the Planning Acts, which allowed parties to apply to An Bord Pleanála for permission to regularise permission for certain developments considered to be non-compliant with provisions of EU law. However, following the Supreme Court decision of 2020 in the matter, certain provisions of this substitute consent legislation were struck down regarding the requirement to demonstrate "exceptional circumstances" for regularisation. The decision also highlighted the requirement that members of the public should be able to participate in the process from the initial stage. Consequently, the conditions under which substitute consent can be availed of are extremely limited and apply in exceptional circumstances only, as must be determined by An Bord Pleanála.

It should be noted that the removal of development in such circumstances can have further unintended and unwanted negative environmental impacts. It is the case that a conviction for contravening the Panning Acts constitutes a criminal offence and, as such, there is a significant burden of proof attaching to the prosecuting authority.

This burden makes planning enforcement a much slower and more complex process than is realised by some observers and leads to delays that are very frustrating for impacted third parties. It is also the case that the defendants in such cases often mount vigorous defences due to the seriousness of the charge. In addition, some courts can be reluctant to convict, having taken all of the circumstances into account. As with all matters, the council must make decisions on the action that is appropriate in any case based on a careful consideration of the issue, its local and wider impact, bearing in mind the human and financial resources available to it as well as the risk in terms of legal and other costs.

Westmeath County Council is actively engaged with and committed to the enforcement of the Planning Acts, as determined by the Oireachtas. It is actively engaging in the legislative review that is under way under the Office of the Attorney General and the Department of Housing, Local Government and Heritage.

Martin Browne (Tipperary, Sinn Fein)
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I thank Mr. Nixon-King and Mr. Kehoe for their opening statements, and I thank both organisations for attending. I understand the witnesses cannot comment on any issues that are the subject of ongoing legal proceedings. We all respect that.

I would like to know who is responsible for whatever is on or adjacent to the River Shannon. Having read the correspondence on the matter from various parties, there seems to be an issue with policing the river and the developments along the River Shannon. One of the statements lists various bodies, including Waterways Ireland, the councils, landowners, developers, business people, the courts, State and semi-State agencies, local communities, etc. It is impossible to police anything, whether on a river, on land or anywhere else, if so many organisations and community groups are involved. For what are Waterways Ireland and Westmeath County Council responsible on the River Shannon? Is their authority confined to the body of water and riverbed or does it extend to the riverbank? I ask my questions against the backdrop of developments that lead out into the river.

Gerard Craughwell (Independent)
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In light of what the last speaker said regarding court and legal actions, are we straying into a dangerous area? Should we allow the legal process to go ahead? The last thing I want is to find myself or any other member of the committee brought into the courts to explain ourselves. When I hear there a live case I have serious concerns about getting involved. I defer to the Chairman and his view of this matter but I am extremely uncomfortable.

Eugene Murphy (Fianna Fail)
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To reiterate what Senator Craughwell has said, having listened to Mr. Kehoe, I want to know where the committee is legally with this matter? A large number of questions are being raised here. Is it wise for us to continue with this discussion? I am hesitant to do so but that is only my personal view. I am seeking clarity.

Martin Browne (Tipperary, Sinn Fein)
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To the best of our knowledge, there is no court case at the moment. We are looking at policy and procedures. There is no actual court case. We can seek legal advice, if members so wish.

Eugene Murphy (Fianna Fail)
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There may be no court case now but what if a line or comment is used at this meeting that leads to something coming up in court? That is what I am afraid of. I understand what the Chairman said but I am concerned about what could come down the road if we have a debate here. I am seeking clarity. I appreciate that the Chairman is trying to clear this up but I have reservations. I would prefer if the committee sought legal advice before proceeding. I will not have an issue if the legal advice indicates it is safe enough to go ahead. I accept what the Chairman has said that there is no court case at the moment but if a comment is made here that leads to court action, we will be drawn into it. I am only a layperson in terms of the law but that is my view.

Gerard Craughwell (Independent)
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Will Mr. Kehoe clarify whether there is a case outstanding?

Martin Browne (Tipperary, Sinn Fein)
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Can Mr. Kehoe answer that question?

Mr. Barry Kehoe:

I am not able to answer.

Martin Browne (Tipperary, Sinn Fein)
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I would be very careful about asking any of the witnesses a question of that nature.

Gerard Craughwell (Independent)
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Yes.

Martin Browne (Tipperary, Sinn Fein)
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As with any committee, anything can be said at any committee meeting and could be used at a future date. We just do not know when we talk about any of these issues. I hope people will be very careful in what they say during this discussion and ensure they do not bring either the committee or any other members into that situation.

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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As a member of the Committee of Public Accounts, I am very familiar, as is the clerk and the other members of the Oireachtas staff, with Standing Order 218 and the implications that an Oireachtas committee, albeit a different one from this one, had for the nature and course of engagement of Oireachtas committees with witnesses. I am struck by two other aspects. One is the correspondence that we have received, which we went through in private session. It has a lot of content and background information which I was certainly not au faitwith or aware of at our December meeting. A lot more information has also come to light.

The opening statement of Westmeath County Council states that "an Oireachtas committee is not an appropriate forum to ventilate legal arguments". I accept what the Chairman has said and obviously we may want to discuss the history of this issue. However, if we are not sure that there is, potentially, a challenge to any previous legal case or if a new legal case could emerge, this could have an unintended consequence and implications for either of the State organisations represented, be it the county council or Waterways Ireland, the Oireachtas and, potentially, us. I confirm that I am on campus but the fact we are even having this conversation shows that members are uncertain and unsure.

I ask the Chairman to deliberate on whether we should proceed and indicate whether he feels comfortable that we proceed. I would also like to hear from the clerk because Standing Order 218 has changed all engagement with the Committee of Public Accounts, for obvious reasons. We have given notice to the witnesses and I appreciate that they have come in and given their time. From the correspondence that we went through yesterday in private session and from what I have heard today in the opening remarks made by both organisations, there seems to be a very grey area and a narrow point in which we can continue a discussion. I ask the Chair to rule on whether we should proceed and indicate whether he is comfortable that we proceed.

Emer Higgins (Dublin Mid West, Fine Gael)
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I am a brand new member of this committee and this is my first full meeting. I am shocked by what we are discussing at this meeting. We seem to be here to discuss a matter that has already been before the courts and on which a Circuit Court determined there is no evidence for the claim. A court of law made that determination. Westmeath County Council, in its statement, summed up my gut feeling on this matter when Mr. Kehoe said that this committee is not an appropriate forum to ventilate legal arguments on a particular case, which has already been subject to court hearings. As Waterways Ireland said, that may prejudice potential future actions. The Chairman spoke about fair procedure and the right of people affected to be invited before committees.

He spoke about our statutory obligation to ensure we do not identify anyone in such a way as to make him or her recognisable. My understanding, however, is that at the previous meeting, many allegations were made, references to maps were held up and this did help identify people. That is at odds with the rules of any Oireachtas committee and it is simply unacceptable without a right of reply being offered. We are here as legislators and we make laws and policies, but we do not interfere in or prejudice the administration of live or individual cases. That is not our role and it would be inappropriate.

What is being done to afford a right of reply to anybody who may have been identified at earlier meetings, as per the fair procedure clause the Chairman read out earlier? Otherwise, we will be denying people natural justice. The theme of this petition seems to seek to ride roughshod over the ability of local authorities and the courts to do their jobs and I am not comfortable with that. I thank our guests for their time and their remarks, which capture exactly why this case should not be something we are discussing. I am certainly not comfortable with it.

Martin Browne (Tipperary, Sinn Fein)
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I do not agree we are here to ride roughshod over any local authority or organisation. That has not happened since this committee was set up. I said in my opening remarks that we were giving a right of reply to everybody and that an invitation would go out to the other party that was involved. It was agreed the other people who were involved would be asked either to write to the committee or to appear in front of us.

Pat Buckley (Cork East, Sinn Fein)
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I thank our guests for attending. The initial petition on this referred to unauthorised development on the River Shannon. Waterways Ireland's statement struck me in that it indicates very little of this property is included on the Land Registry. I am not talking about any individuals or court cases; this is about the River Shannon in general. The bodies that controlled this matter before it was handed over to Waterways Ireland, namely, CIÉ, the OPW, the then River Agency and the then Department of Arts, Heritage, Gaeltacht and the Islands, surely had some paperwork to say who owned the land or whether they were just minding it for somebody. In my constituency, in Youghal and east County Cork, there are agreements going back to 1604. The Duke of Devonshire still holds the rights to the seabed in Youghal. Waterways Ireland stated, “Currently, 52% of our property portfolio is registered or at an advanced stage of registration.” This was supposed to be about unauthorised development on the River Shannon. We are not here to catch anybody out. In fact, this is a way of assisting our guests’ organisations. Waterways Ireland seems to be overstretched, at only 52% capacity in regard to the properties it controls.

One term appeared repeatedly in the opening statements. The statement by Westmeath County Council refers to “several developments on or adjacent to the lakes and the River Shannon that do not have the benefit of planning permission”. It goes on to state:

In some cases, the development in question pre-dates the Planning Act of 1963 [so there is an issue there] ... development took place on an incremental basis over the years without recourse to the Planning Authority. Other development may have been undertaken in blatant disregard of planning laws and in this regard it should be noted that the Council remains actively engaged in enforcement proceedings in suspected cases of unauthorised development, save for circumstances in which the statute of limitations applies.

The committee is not pointing the finger at anybody, but is there a possibility, because of the limitations on the Land Registry or because of historical planning issues, that unauthorised development is still happening on the River Shannon over which the council does not have control? Is it possible private companies are moving in without the council's knowledge or control? That is the question we are trying to get at. It is not about individuals. Individual cases were raised as a red flag, but it seems Westmeath County Council, while trying to do its best with enforcement measures and so on, lacks power. Similarly, Waterways Ireland is at an infancy stage whereby it is trying to gather all the information, statistics and what it can control and use. In between, there are, possibly, people or entities taking advantage of the planning structure or the flawed planning laws that exist.

That is the case we are trying to highlight here. It is not to point the finger at anyone but rather to get a collective picture, assist the organisations and flag it with the Government in case more resources are needed to deal with the issue. Last night, I noted the term "unauthorised development" appears repeatedly in our guests' statements and in the appendix supplied by Westmeath County Council. It is possible someone could come in with a caravan and put it on concrete blocks for seven years. After seven years, the limitation period will have expired and he or she could install a solid structure and get away with it. Is this a planning issue? Is it possible this behaviour is still going on? That is what I want to know. It is a calamity at the moment because Waterways Ireland does not have all the information in respect of the portfolios and so on that it controls. Westmeath County Council is trying to enact enforcement orders when it can but it is caught in a crux between archaic planning laws and seven-year rules. Is it possible today that there are unauthorised developments all along the River Shannon over which our guests' two entities have no control?

Cormac Devlin (Dún Laoghaire, Fianna Fail)
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On a point of information, based on our discussion before Deputy Buckley came in with a more general question, the agenda for today is quite specific and relates to a particular site. We are all aware of which one it is. Plenty of county councils border the River Shannon and, presumably, have unauthorised development along it, but this is very specific. Before we proceed, I, along with colleagues who have spoken about this, would like to hear whether this meeting should proceed, in the Chairman's view, and I would like to hear also from the clerk to the committee.

Gerard Craughwell (Independent)
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Deputy Buckley continually used the term "unauthorised development". It is my firm belief this matter will find its way to the courts for resolution at some stage. I am deeply concerned about it. I fully appreciate where Deputy Buckley was coming from and I support most of what he said. If we had these two entities before us today to discuss the general topic, that would be fine and I would be very happy with that. As was pointed out by Deputy Devlin, however, this is a specific issue that was raised with us. It may end up having to be resolved in the courts. I am not comfortable with it and I do not believe we should stray into it. We should watch where we are going here. We know what happens when an Oireachtas joint committee gets something wrong.

Eugene Murphy (Fianna Fail)
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I served on the previous Committee on Public Petitions with Deputy Buckley and it is seldom we disagree, but this is not about who is in charge of what along the River Shannon. It is about an individual case.

The committee has already heard a presentation from individuals and we were shown maps. This is really dangerous territory. Whatever is agreed, that is fine, but if we do not get a resolution, I will be proposing that we suspend debate on this to another day until we get legal advice. The Chairman will offer his point of view, but we have to take into account what Deputy Higgins said. At the beginning of every meeting of this committee the Chairman or whoever is in the Chair reads a long spiel about what members should and should not do. That is made quite clear to us. We have to take all of that into account.

Mr. Kehoe is a very reputable man, which I know because I do not live too far from Westmeath. However, on the basis of what I have heard from Mr. Kehoe, I am not happy to proceed to an open public debate on the issue at this time.

Martin Browne (Tipperary, Sinn Fein)
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I propose that following a closing statement from Waterways Ireland and Westmeath County Council we suspend this part of the meeting and that we take up this matter at our next private meeting. Are members happy to proceed in that way?

Gerard Craughwell (Independent)
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As the person who raised this issue, I want to apologise to the witnesses who have given of their time today to come here to try to resolve this matter, but I believe it is in all our interests that we take the steps now proposed by the Chairman. I again apologise to the witnesses for throwing a spanner in the works on this one, but I believe it is in everybody's interest.

Eugene Murphy (Fianna Fail)
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I too apologise to the witnesses who have probably laid out their day to be here with us. I do not believe there is need to progress with any further statements at this point. It is a matter for the Chairman and other individuals, but why should we proceed with further statements? Nobody is against further debate in the future, but from our perspective we first need a legal opinion on this.

Martin Browne (Tipperary, Sinn Fein)
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I propose that we suspend this section of the meeting until we get legal advice. We will revisit the issue at our next private meeting in two weeks' time. Is that agreed? Agreed.

On my own behalf and on behalf of the committee, I apologise to the witnesses for what has transpired. We will seek the legal advice, following which, hopefully, the witnesses can appear before us again.