Excerpt from minutes of Leitrim Co Co meeting, Feb 2012

This is an excerpt from the minutes of a Leitrim Co Co meeting held in Feb 2012. It is worth while reading through this to gauge where the various councillors stand, it’s obvious that the majority of the Councillors feel strongly that the Co Dev Plan should be amended to exclude hydraulic fracturing, despite the advise from the county manager – who is strongly taking the govt line as county managers tend to do.

After all, the county manager is a paid civil servant who job is really to forward the interests of whichever govt is in power, not to the take the interests of the people living in the county into consideration. She is paid through our taxes but doesn’t really work for us, (private rant over).

The excerpt is from page 9 through to page 16 and is relevant to the discussion by the Co Co members about the possibility of changing the County Development Plan:

Part I – Notices of Motion.
12/56 6/2/2012 Amendment to County Development Plan re Hydraulic Fracturing
The Cathaoirleach, Councillor John McTernan outlined that Motion No’s 9 and 15 related to the same issue and suggested that they be considered together. This was agreed by the Members.

Ms. Jackie Maguire, County Manager outlined that a copy of the response to the motions in
relation to the County Development Plan had been circulated for the information of all the Members.

To consider the following Notice of Motion submitted by Councillor Sean McSharry;
“I call on Leitrim County Council to follow the example of Clare and Sligo County Councils to amend the County Development Plan and ban the use of hydraulic fracking.”

To consider the following Notice of Motion submitted by Councillor Sean McDermott;
“At the February Council meeting, I will ask Leitrim County Council to proceed to amend or vary the current Leitrim County Development Plan so that all fracking/shale gas extraction related activity be halted pending the introduction of a regulatory National and European oversight that does not contravene existing European Directives. This is in the interests of continuing the positive development of agriculture and tourism in County Leitrim.”

Report by Director of Service, Planning, Community and Economic Development
“The preparation and variation of a County Development Plan is governed by the provisions of the Planning and Development Acts 2000-2010. As a consequence a planning authority has responsibility to ensure that the content of Development Plans is consistent with National Plans, Policies and Strategies as well as Regional Objectives including documents such as the
National Spatial Strategy and Regional Planning Guidelines.
Equally at National level government actions must operate within national policy such as
Sustainable Development – A Strategy for Ireland 2007 and must also ensure consistency with EU Directives such as the SEA Directive 2001.

The content required for a County Development Plan is set out in the Planning and
Development Act 2000 as amended which includes the need for strategic statements and
development objectives including objectives for matters such as environment protection,
sustainable development, protection of waters, landscape character protection etc . In addition procedures for the variation of the Development Plan is set out in statute which includes notices detailing proposed amendments to issue to the Minister, the Bord, adjoining planning authorities and other prescribed bodies along with public notice. A report on submissions must be prepared by the Manager and considered by the Members in dealing with the variation of the plan with an enhanced role for the Minister (since 2010) throughout the process. In concluding the consideration of a variation the Members are restricted to matters relating to the proper planning and development of the area and the relevant policies and objectives of the Government.

In addition to the limitation within which the Council would be operating when processing a
variation to the Development Plan the attempted introduction of a ban or a moratorium on the use of hydraulic fracturing as an extractive technique for the recovery of shale gas would be fraught with technical and legal difficulties. Judicial precedent exists in the case where Mayo County Council adopted a policy into its development plan to ban mining for gold in the vicinity of Croak Patrick. In the Judgement of Blayney J in the case of Glencar Explorations plc V Mayo County Council [1993] 2 IR 237, it was held that a local authority could not be said to have regard to the policy of the Government in respect of mining when it adopted as part of the development plan a policy which was totally opposed to government policy.

Relevant government policy was at the time to the effect that mineral resources should be
explored for and should be exploited where it could be done in an environmentally acceptable manner. Blayney J stated that without attempting to define precisely the meaning of the phrase, “ having regard to” he was satisfied that a local authority could not be said to have had regard to the policy of government in respect of mining when it adopted as part of the development plan a policy which was totally opposed to that policy. It should be noted that the term “ have regard to” has been now replaced with “be consistent with” which binds the Council even more tightly to be in conformity with Government policy on the matter.

The Government policy in relation to “mineral resources” has not changed since that time, as far as the council is aware, and shale gas would fall within the category of mineral Resources.
Further to the matter of conformity to National Policy the inclusion of any proposed ban or
moratorium would have to be introduced into the plan by way of a “development objective”. The meaning of the term “Development Objective” was also looked at in this case. Again Blayney J held that the inclusion of such a provision [the banning of a development activity], was illegal as it was Ultra Vires. He found that the local authority was only entitled to include in the plan development objectives within the meaning of the legislation: the development objectives must be objectives which have as their aim the ‘carrying out of works on in or under land’ which meant that they must be positive in nature. The judge indicted in his judgement that it was not necessary for him to decide whether or not a local authority is entitled to include matters of “policy’ in its plan: the term “policy” and “objectives” are mutually exclusive.

However, Leitrim County Council through the preparation and the recent variation of the current County Development Plan has in place a robust plan with a clear vision for the county which formulates both the strategic and sustainable development of the county through a long list of policy statements and objectives.

The plan clearly stipulates key national policy documents that have determined the overarching policy framework for the future development of the county with well set out unambiguous policy objectives dealing in an effective way with competing demands of employment, tourism, extractive industries, amenity, utility services with a detailed section dealing with policy and objectives centring on the Protection of the Natural Environment of the County. The protection of the environment is onerous given the level of designation etc that arises in regard to SEAs, Habitat Directive, NHAs, AONB, AHVA, Water Framework Directive and Ecological and Geological interests.

While the Development Plan contains particular references to the Extractive Industry in relation to not adversely impacting on the environment any such development would firstly be the subject of a strenuous Environmental Impact Assessment and, when being assessed by the relevant regulatory bodies, will not only be bound by EU Directives and National Policy but also will have to have regard to the many provisions of the existing Leitrim County Development Plan which taken in its entirety comprises of an array of safeguards, checks and balances in relation to such development. It is expected that the primary regulatory bodies which will be charged with the responsibility of assessment will be the Department of Communication, Energy and Natural Resources in relation to the licensing of the extractive processes, the Bord through the Planning and Development (Strategic Infrastructure) Act 2006 provisions and the EPA in regard to the Integration Pollution Prevention Control Licence process.”

Councillor Sean McSharry outlined that the Council had taken presentations in relation to both sides of the fracking issue. He stated that Tamboran had indicated that no chemicals would be used but that this is known to be untrue. He criticised the approach taken by the company in relation to the project. He outlined that fracking is banned in various locations and that an earthquake in the UK has been proven to have arisen as a direct result of fracking, He stated that the health implications of fracking are proven and the potential contamination of the food chain cannot be risked. He stated that the safety of ground water is a primary concern of the Minister and fracking cannot be permitted. He also queried why the EPA research contract in relation to fracking had been awarded to a Scottish University. He stated that the County Development Plan must be amended to ban the use of hydraulic fracking.

Councillor Sean McDermott outlined that the current County Development Plan was prepared in a different context when the issue of fracking could not have been foreseen. He stated that the implications for North Leitrim and the wider North West are quite serious. He stated that the people of Glenfarne/Kiltyclogher are very fearful and that the issue must be dealt with as soon as possible as the problem will not go away. He outlined that a potential tourism related project for the Glenfarne area has been put on hold by the proposers due to concerns in relation to the gas project. He outlined that €40m has been put aside in the recent Budget to clean up a Cork Steel manufacturing site where the company had simply walked away. He stated that it is the taxpayer that has to pick up the bill for the aftermath of such projects. He stated that the County Development Plan must be amended or varied so that all fracking/shale gas extraction related activity be halted pending the introduction of a regulatory National and European oversight that does not contravene existing European Directives.

Councillor Gerry Dolan supported the motions. He stated that the IFA in Leitrim are united in
relation to what the Council are seeking today. He outlined that literature received from Deputy Luke Ming Flanagan TD highlighted 8 crucial points to be made. He stated that Monaghan and Cavan County Council’s are going for complete fracking bans at their respective Council meetings today. He outlined that a safe way of extracting the gas may be identified down the line and in the meantime it should stay in the ground.

Councillor Sinead Guckian stated that she has reservations in relation to the process proposed. She referred to the statement in the reply from the Director of Services, Planning, Community & Economic Development that the “attempted introduction of a ban or a moratorium on the use of hydraulic fracturing as an extractive technique for the recovery of shale gas would be fraught with technical and legal difficulties” and queried the situation in relation to the action taken by Clare and Sligo County Councils and whether they had created a legal issue for themselves or were trying to do something which they simply cannot do.

Councillor Gerry Kilrane outlined that he supported the motions. He expressed concern
however in relation to people’s understanding of the County Development Plan. He outlined that people had called on him to support the motions indicating that this is something that would have ‘real effect’. He referred to the September 2010 decision by An Bord Pleanala in relation to a phone mast application which was granted permission by the Bord contrary to the Leitrim County Development Plan. He stated that the County Development Plan is aspirational and reflects a vision for the County but is not binding on An Bord Pleanala. He expressed concern that the perception is out there that the amendment of the County Development Plan is all that is required and that Clare and Sligo have already done this. He outlined that he supported the motions but stated that the correct information needs to go out to the public.

Councillor Martin Kenny supported the motions and stated that he took cognisance of the report prepared which indicates that such a proposal will be looked at through the Strategic
Infrastructure Act etc. He stated however that amending the County Development Plan is a
means of putting up a fight on behalf of the people of the County. He also stated that the
Council have a duty to try and change the Plan so that it is in line with other Counties around
us. He outlined that the strong view form other local authorities as expressed at the meeting in Enniskillen last week is one of opposition. He stated that the Members of Leitrim County Council need to make the changes and if those changes are blocked by the Minister then so be it.

Councillor Francis Gilmartin supported the motions.

Councillor Tony Ferguson also supported the motions and stated that Tamboran Resources had taken a very arrogant stand in their recent statement. He stated that the people of Leitrim and the Members will stand shoulder to shoulder in relation to this issue. He stated that he believed firmly that the points made in relation to changing the County Development Plan must be implemented. He stated that there also needs to be a call for a change in the Regional Planning Guidelines. He outlined a concern that the project is at a more advanced stage in County Fermanagh. He stated that the issue must be taken head-on and that the County Development Plan can and must be changed.

Councillor John Ward supported the motions. He stated that Tamboran have only given one
side of the story and stated that the project will affect the whole Shannon Basin.
Councillor Enda McGloin stated that he agreed with the motions in a sense but stated that there is a lot of misinformation being put out to the public. He stated that as public representatives Members can express their views. He outlined that he had had a call from one lady who was of the view that once a ban was included in the County Development Plan the project could progress no further. He stated that it needs to be clear that this simply is not the case. He stated that it is important to write directly to Minister Rabbitte expressing the views of Leitrim County Council. He stated however that Members must be clear to the people they represent that fundamentally we do not have a role. He stated that passing the motions does not mean that fracking cannot proceed.

Councillor Mary Bohan agreed that fracking could not have been foreseen as an issue when the current County Development Plan was being prepared. She stated that the Council has a right to review the County Development Plan in light of this huge change. She stated that the

approach by the company is worrying in that it would appear to be a case of ‘divide and
conquer’. She stated that this is a very divisive issue. She stated that everyone would like to see jobs and prosperity. She stated that arising from the joint meeting with Fermanagh, Sligo and Cavan County Council it was proposed that a meeting would be sought with Minister Rabbitte and Minister Foster to discuss the matter. She stated that Minister Rabbitte needs to hear what the people are saying, that there are grave concerns and that the issue is going to be very divisive in our community. She also stated that, regardless of Government policy, Members must represent the views of their communities. She also expressed concern in relation to how the EIA will be carried out and whether the expertise is available within the Department to deal with it.

Councillor Sean McGowan supported both motions and all that had been said. He stated that, while accepting that varying the County Development Plan is only aspirational, it is important to send out the message that fracking is not acceptable to the people of Leitrim.

Councillor John McCartin stated that the gas is not going anywhere and it is important nationally that time is taken to fully consider the issue. He stated that as a Council the Members have a duty to respond to the concerns of the electorate. He stated that a considered approach is required. He stated that this is an environmental issue on foot of environmental concerns. He stated that there is a huge responsibility on Ireland and the EPA to make sure they have taken the correct advice etc. He stated that we must put some trust in the Institutions of the State. He stated that we should send the message forward that this is not reactionary if there are environmentally safe ways to extract the gas.

Councillor Frank Dolan supported the motions and stated that he would have grave concerns and fears that the Minister and Department are not up to speed with what is involved. He said that it would be serious if a Licence were to be granted without much more detailed consideration.

Councillor Siobhan McGloin supported the Motions. She stated that the issue has raised fears
and concerns across all age groups. She also stated that the approach by the company in
relation to their recent press release was arrogant and left a bad taste.

Councillor Caillian Ellis also supported the motion and stated that the company are trying to split communities.

Councillor Paddy O’Rourke sought clarification on whether the project is at a further stage in
Fermanagh.

Councillor Enda Stenson also supported the motions and queried whether the expertise is
available in the country to deal with this issue. He stated that the Minister should speak to the local representatives in relation to the issue.

Ms. Jackie Maguire, County Manager reiterated that the detailed response in relation to the
position on the County Development Plan had been circulated to all Members. She outlined that she appreciated the concerns which Members have. She advised that no other County
Development Plan has been varied in relation to this issue to date. She advised that Fermanagh are by-and-large at a similar stage – that where regulation kicks in is slightly different between North and South but that both jurisdictions are largely moving in parallel and both Departments are in contact with each other.

In relation to the County Development Plan she stated that this must conform with National Policy and EU Directives. She outlined that when the Development Plan is prepared it goes through a very robust mechanism. She outlined that what is in the Plan must reference national plans and policies and all of the EU Environmental Directives etc. She advised that all of these are contained and allowed for in the Development Plan. She outlined that there had been a lot of discussion around EU Directives that are very restrictive even in relation to a one-off rural house.

She outlined that at the moment nothing can happen within the County unless the Company get to the next stage and to get there they must carry out a detailed Environmental Impact Assessment (EIA). She stated that this is very onerous and detailed and must comply with very detailed regulation and be assessed by the Department. She advised that the EIA process will also include a public consultation phase. She outlined that the EPA has been tasked with researching the process of hydraulic fracturing. She detailed the lengthy process involved in relation to varying the County Development Plan which would require seeking specialist advice and would take up to eight months to complete. She advised that any such variation could be overturned by the Minister. She stated that the County Development Plan already takes into account all of the EU Directives and detailed environmental protection objectives and stated that all of these will have to be addressed by the Company before progressing further.

Mr. Joseph Gilhooly, Director of Services, Planning, Community and Economic Development gave a detailed overview of the response which had been prepared in the context of the Motions submitted.

Councillor John McTernan outlined that all Members are very concerned in relation to the
situation.

Councillor Mary Bohan proposed, in view of the procedures as outlined by the County Manager and Director of Services in relation to the variation of the County Development Plan, that a special meeting should be held to review the Plan in light of this issue and to give it the consideration which it warrants.

Councillor Sinead Guckian stated that clarity was required in relation to what had been done in Clare. The County Manager reiterated that no County Development Plan has been varied in relation to this issue. She reiterated the process involved in relation to varying the Development Plan and the requirement that it conforms with national policy. She also reiterated that the company must complete a detailed EIA which will determine whether it can progress to the next phase of the project. She stated that the Executive is just as concerned as the Members but that we must consider in a balanced way what Leitrim County Council can do. She stated that due process must happen in relation to this issue. She advised that if the Members wish to vary the Plan this will have to go through due process with huge difficulties involved and the requirement for external expertise. She also advised that it is An Bord Pleanala that will be dealing with any application in relation to this project and that if elements of it came before Leitrim County Council for decision any such decision will ultimately end up with An Bord Pleanala.

Councillor Tony Ferguson proposed, in view of the advice from the Executive and the
requirement to conform with national Policy, that the Council call on Ministers and Government to ensure that the practice of Hydraulic fracturing be excluded as a method of extracting Gas/Oil on the Island of Ireland as in the case of some European countries. He proposed that the Council proceed on this basis. This was supported by Councillor Sean McGowan.

Councillor Francis Gilmartin requested that clarification be obtained in relation to the situation with Sligo County Council and the proposed variation of their Plan. The County Manager advised that she had spoken with officials in Clare and the Manager had advised the Members that they could not proceed. She advised that she had not managed to speak with anyone in Sligo but that it was understood that there was no comment at all from the Executive in relation to the issue.

Councillor Kilrane noted the advice from the Manager and the Director of Services and
acknowledged that changes to the Development Plan in this regard would take a significant
period of time and ultimately are aspirational. He outlined that the Council has already called for a five year moratorium on fracking.

Councillor Martin Kenny stated that while the reality may be that the variation of the Plan is
aspirational it can mean a lot if the Counties affected are clearly saying that they don’t want
fracking. He outlined that he understood that there may be a cost involved but suggested that a joint approach and pooling of resources could be considered.

Councillor Enda McGloin outlined that the Oireachtas members in the Roscommon/Leitrim and Sligo/Leitrim constituencies were being given a presentation on Tuesday, 7
th February 2012 by Minister of State, Fergus O’Dowd in relation to this issue. He suggested that the opportunity 15 should also be afforded to the Members of Leitrim County Council to discuss the situation. This was supported by Councillor Sean McGowan.

Councillor Mary Bohan reiterated her proposal that a special meeting be held to review the
County Development Plan in terms of the options available. This was supported by Councillor Sean McDermott.

Proposed by Councillor Tony Ferguson, seconded by Councillor Sean McGowan AND
UNANIMOUSLY RESOLVED;
“That Leitrim County Council calls on Ministers and Government to ensure that the practice of
Hydraulic fracturing be excluded as a method of extracting Gas/Oil on the Island of Ireland as in the case of some European countries.”

 

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