Press Release February 12th 2018:

Complaint against An Bord Pleanála for breach of planning laws in Shannon LNG decision.

Calls for suspension of Shannon LNG application to extend expiring planning permission until complaint is adjudicated on. 

Environmental lobby group 'Safety Before LNG' has lodged a strongly-worded formal complaint against An Bord Pleanála for a decision it made on the application by Shannon LNG to extend planning permission which expires next month and which The Board then over-ruled 26 days later.
The group say that An Bord Pleanála breached its own Code of Conduct which it must uphold by law when it revoked its earlier decision without explanation. The group also strongly criticised the Board for not keeping its website updated with the latest details which the public and prescribed bodies have only been given 14 days to comment on given that it is an application with international consequences.

The group has asked for the application by Shannon LNG, owned by Paddy Power, to be suspended awaiting the outcome of the complaint in the interests of fairness and justice. The group said that it is now becoming impossible to participate in any meaningful way in what seems to be a pre-determined planning application.

The group did not mince its words when stating:

"In the end, this cavalier approach by An Bord Pleanála highlights the very grave consequence of your over enthusiastic embracing of the Strategic Infrastructure Act 2006 where you are no longer a referral body for planning applications but judge, jury and executioner from  the beginning to end of strategic planning applications and have fallen into the trap of  "Agency Capture".  The developer applies directly to you, bypassing local authority decision making; you hold secret talks in a pre-consultation process which the public is not invited to (where you modified the minutes of those meetings as already highlighted by us); you do not declare the project is in the national interest but imply that is is a Strategic Project because the developer pays you €100,000 to adjudicate and it affects more than one local authority area and then there is no body to appeal the decision to given your quasi judicial role.

Now, with No SEA on the original application, No QRA on the waterways which have since being declared SAC, No EPA input, No HSA advice, massive Climate Change commitments signed up to by the country in the intervening 10 years which will cost us all a fortune if not upheld, no up-to-date information on your website, the US multinational backer -  Amerada Hess - having legally and publicly abandoned the project which is now owned by Paddy Power and his son through a shelf company, Shannon LNG pay you another €30,000 to extend planning permission and you are bending over backwards to accommodate them by revoking your own decision with total disregard for the people that live here, who suffer the consequences and who have to put up with your nonsense. An Bord Pleanála seems to have become more and more unaccountable and untouchable given what you have just done in this Shannon LNG planning application and the precedent you have set which goes beyond your authority."

The full complaint is as follows:

"I am hereby making a formal complaint to An Bord Pleanála on the double decisioning of the PM0014 by Shannon LNG as outlined in the press release below.

My complaint is that An Bord Pleanála acted ultra-vires in making 2 decisions on the one application.

I spoke with David Curran from An Bord Pleanála the moment I received the letter on February 8th, 2018 and he believed that it was an administrative error where the correct information was not provided initially.

However, we believe strongly that this is simply unacceptable behaviour by An Bord Pleanála and a serious breach of the An Bord Pleanála Code of Code which you are statutorily obliged to uphold, especially given your quasi judicial role in a Strategic Infrastructure Application which bypasses the local authority.  The people that signed those letters from An Bord Pleanála have worked at The Board for many years - at least 10 years from my memory - and it seems inconceivable, on mature reflection reflection, that this could just be an administrative error.

In the interest of fairness, justice and the upholding of your own Code of Conduct, I am asking that that you formally and immediately suspend this process awaiting the outcome of this complaint.

We now feel that this situation is making it almost impossible for us to participate in any meaningful way it what seems to be a pre-determined planning application.

In addition, it should not be for Shannon LNG to state the date that submissions may be received by the Planning Authority, rather it should be at least 4 weeks from the date a full original newspaper notice is received and validated by the Planning Authority - in this case An Bord Pleanála. 

Also, people cannot view the updated newspaper advertisement online anywhere even though this is a project with international consequences.

Also, your website should keep this information up to date as people from the local area cannot visit your offices in Dublin easily to view the information and all your pleanala.ie website states is that the decision is due on February 5th 2018 (a date in the past, ironically enough).  If local authorities can keep their websites updated with the most recent information and documents of all planning applications, then why can't you? Are you trying to prevent the public from getting timely access to the information that you have changed procedures in the middle of a Strategic Infrastructure application with only 14 days notice?

I also feel that the Board should appoint an independent outside person or body (such as the Ombudsman or Minister)  to deal with this complaint if, as already seems evident, The Board agrees that it has compromised itself.

In the end, this cavalier approach by An Bord Pleanála highlights the very grave consequence of your over enthusiastic embracing of the Strategic Infrastructure Act 2006 where you are no longer a referral body for planning applications but judge, jury and executioner from  the beginning to end of strategic planning applications and have fallen into the trap of  "Agency Capture".  The developer applies directly to you, bypassing local authority decision making; you hold secret talks in a pre-consultation process which the public is not invited to (where you modified the minutes of those meetings as already highlighted by us); you do not declare the project is in the national interest but imply that is is a Strategic Project because the developer pays you €100,000 to adjudicate and it affects more than one local authority area and then there is no body to appeal the decision to given your quasi judicial role.

Now, with No SEA on the original application, No QRA on the waterways which have since being declared SAC, No EPA input, No HSA advice, massive Climate Change commitments signed up to by the country in the intervening 10 years which will cost us all a fortune if not upheld, no up-to-date information on your website, the US multinational backer -  Amerada Hess - having legally and publicly abandoned the project which is now owned by Paddy Power and his son through a shelf company, Shannon LNG pay you another €30,000 to extend planning permission and you are bending over backwards to accommodate them by revoking your own decision with total disregard for the people that live here, who suffer the consequences and who have to put up with your nonsense. An Bord Pleanála seems to have become more and more unaccountable and untouchable given what you have just done in this Shannon LNG planning application and the precedent you have set which goes beyond your authority. That is how serious this is."

Press Release February 8th 2018:
An Bord Pleanála, in a breach of trust, decides that extending the expiring planning permission for the proposed Shannon LNG terminal is a "Material Change" and then, 26 days later, changes its mind.

Claims Double Decisioning of same case a breach of An Bord Pleanála Code of Conduct. 

In an unprecedented move in Irish Planning history, An Bord Pleanála has reversed one of its own planning decisions it made 26 days previously to the advantage of Shannon LNG -  a double-decisioning of the same case which represents, in our view, a breach of  An Bord Pleanála's own Code of Conduct which  members of the Board are statutorily obliged to comply with. We are concerned that An Bord Pleanála is not showing the maximum degree of accountability consistent with the quasi-judicial nature of the Board’s functions.

On March 31st 2018 -  next month - planning permission for the proposed controversial Shannon LNG project will expire. The now shelf-company-owned Shannon LNG has paid €30,000 to make an application to An Bord Pleanála directly under the Strategic Infrastructure Act 2006 to extend the planning for another 5 years with no decision-making role for the local authority Kerry County Council.

In deciding whether to refuse permission to extend planning permission 2 major decisions are required.
The first, the most difficult to overcome, is whether extending planning permission constitutes a material change.
If the change is deemed material then a second decision is required on whether the changes would have "significant effects on the environment".
This second decision was considered by environmental groups to be the easiest to prove since the land is currently agricultural grazing land and no development has taken place in the 10 years.
If the alteration is deemed both material and having a significant effect on the environment then it is almost certain that Shannon LNG would be refused permission to extend planning permission beyond the 10 years at the end of next month.

An Bord Pleanála made the first decision that it was a material change and ordered a public consultation on the second easier question on whether the changes would have significant effects on the environment.

However, 26 days later, the Board, without any legal reason provided, and without any provision in legislation, overturned its own planning decision to the benefit of the shelf-company-owned Shannon LNG and has asked for a public consultation on the material change with only 14 days’ notice.

This revocation of its own planning decision by An Bord Pleanála is a cause for grave concern and is, in our opinion, an abuse of process and a sleight of hand.

An Bord Pleanála has the power of the Higher Courts and its decisions can only be challenged on a point of law, process or fact in the High Court.
That the Board could make a decision, inform in writing all parties to the planning application of this decision and then 26 days later change its mind without any explanation brings into question the independence of the The Board and is, what we consider to be, a breach of Trust.


Does this mean that when anybody receives a letter from An Bord Pleanála, they can now assume that the decision in the letter might not be true at all and may be revoked a few weeks later? This is setting a dangerous precedent which may be used in court proceedings in the future.

The question that has to be asked is: Is there undue external pressure on An Bord Pleanála or a conflict of interest within members of An Bord Pleanála that allows its decisions on the Shannon LNG project to be changed at will?

A higher standard is expected of  An Bord Pleanála when it is dealing with applications through the Strategic Infrastructure Act 2006 that bypass local authorities as in this case and  which have no process of appeal of planning issues other than through the Courts which is mainly the reserve of the rich. 
We also believe that this double decisioning by An Bord Pleanála is a clear breach of the Code of Conduct, which by law it is obliged to uphold.

We are not now convinced that  An Bord Pleanála is carrying out its work in an independent manner that embodies the public service ethos of integrity, impartiality and a desire to serve the public interest while giving due consideration to all legitimate viewpoints and interests.

We are especially concerned that An Bord Pleanála is not showing the maximum degree of accountability consistent with the quasi-judicial nature of the Board’s functions. The Code of Conduct states that it is essential that proper procedures are followed in the interests of fairness and of natural and constitutional justice. Proper procedures are clearly not being followed in this instance. The code of Conduct also obliges The Board "to ensure that decisions are based on clearly stated considerations and reasons." No reason for the double decisioning was given in this instance either.

Background:

On January 11th 2018 An Bord Pleanála informed Shannon LNG that:  

The Board directed that Shannon LNG advertise in two newspapers that submissions or observations could be made in writing to the Board within a period of 4 week on whether the alteration would have "significant effects on the environment".

The Board sent this information to all individuals and groups who made submissions to the original planning ten years previously informing them of this decision.
 
However, on February 6th 2018 - An Bord Pleanála wrote to all the same people and groups it had written to 26 days earlier to inform them that
and was now inviting submissions before it decided whether the extension of planning was a material change  - something it had already decided. In addition, the public would only have 14 days to submit submissions on this altered question, instead of the standard 4 weeks.

- Ends -

Notes to the Editor: 1.     The American Company Hess that created the Irish Subsidiary Shannon LNG for the purpose of the proposed LNG plant has completely abandoned the project - both publicly and legally. Shannon LNG has now became little more than a shelf company entirely owned by Sambolo Resources, a company registered in Dublin whose 2 shareholders are the CEO of Shannon LNG (Paddy Power) and his son John with  Sarah Govereny  as company secretary.          2. The owner of the land, Shannon Properties (formerly known as Shannon Development), has put the land up for sale and is just trying to sweat the asset as land with planning permission for an LNG terminal.