Controversial Land Rezoning

On April 19th, 2006 Shannon LNG signed an option to purchase agreement with state-owned Shannon Development  for lands  it owned at Kilcolgan, between Tarbert and Ballylongford in County Kerry on the southern shores of the Shannon Estuary on the south west of Ireland. It was widely publicised in the media and announced in the D�il, the national parliament, as early as May 2006 that an LNG terminal would be built there.

However, the 281 acres of land in question had first to be rezoned to 'Industrial' use via a variation to the County Development Plan in March 2007.

By law, any variation to a County Development Plan must undergo a Strategic Environmental Assessment (SEA) if there is likely to be a significant effect on the environment, if there is a risk of accidents e.g involving Seveso landuse (the most hazardous designation which an LNG terminal comes under), or if the land is adjacent to areas of conservation sensitivity (such as Natural Habitats). An SEA examines the cumulative impacts of a Plan (such as the creation of an oil and gas energy hub on the southern shores of the Shannon Estuary) and is therefore region and strategic specific whereas an Environmental Impact Assessment (EIA) is project specific. The propsed LNG terminal site is adjacent to SAC, NHA and SPA designated areas.

Shannon LNG informed the planning authority (An Bord Plean�la) on February 6th, 2007 that it wanted the project to be considered under the new Strategic Infrastructure Act 2006. An Bord Plean�la informed Kerry County Council in February 2007 of this fact and the Shannon LNG project had already been discussed at the County Council meeting on June 20th, 2006. Shannon LNG had even paid Shannon Development -  whose director John Brassil (now Chairman) was a member of Kerry County Council at the time - €493,000 at least three months before the land was rezoned. The same councillor Brassil canvassed the support of the Executive of Kerry County Council at the council meeting of June 20th 2006 to give the LNG project "every support" and it was  agreed at that meeting that the Shannon LNG project progress would "be overseen by a sub committee of the senior management team".

The screening report to determine whether or not an SEA should be undertaken was contracted out to consultants RPS, who never mentioned the proposed LNG terminal on their report. RPS later confirmed to  the council that "they were unaware of the proposed LNG proposal at the the time of the screening process".  A reputable company should have been aware of the media, council  and parliamentary discussions of an LNG terminal. Kerry County Council later confirmed  that it was "unaware as to whether or not the consultants were aware of the LNG proposal as it was in the public arena at the time".

We believe that the pressure to fast-track the rezoning for the Shannon LNG terminal took precedence over following the correct procedures to the detriment of the Shannon Estuary, its environment and environs and of the people living in and owning property adjacent to the propsed LNG project and route of LNG tankers travelling in the Estuary. In other words, there was no due regard for sustainable and integrated planning by the council in its actions.

It was therefore decided to lodge 2 formal complaints, one to the Office of the Ombudsman and one to the Standards in Public Office Commission. We were, however, cognisant of the fact that any decision that would find that the lands were illegally rezoned would automatically bring into question the legality of the planning permission obtained for the Shannon LNG terminal. It was always, therefore, going to be difficult to obtain a favourable decision.

Complaint to the Office of the Ombudsman

This complaint was sent following the refusal by Kerry County Council to undertake a Strategic Environmental Assessment  (SEA) before rezoning lands for the proposed Shanon LNG terminal.

The Ombudsman's Office agreed with Kerry County Council that:

Click here to download the entire Ombudsman Investigation into the refusal to undertake a Strategic Environmental Assessment (SEA) for the Shannon LNG land rezoning decision (14 MB).

Complaint to the Standards in Public Office Commission

The complaint to the Standards in Public Office Commission was sent concerning the fact that Councillors John Brassil and Ned O'Sullivan (now Senator and member of the Oireachtas Commitee on Climate Change and Security of Energy Supply) voted at the Kerry County Council meeting of March 12th 2007 to rezone the lands  at Kilcolgan without declaring their interests of directorships of companies benefitting from the Council decision.

John Brassil was a director of Shannon Development, the owners of the land rezoned and Ned O'Sullivan was a director of Shannon Foynes Port Company. The consequence of  Kerry County Council not informing RPS about the Shannon LNG project (if that was indeed the case) was that the statutory Strategic Environmental Assessment Report was effectively prejudiced.

The Standards in Public Office Commission (SIPO) did acknowledge that the directorships held by Councillor Brassil and Senator Ned O’Sullivan were both declarable and beneficial interests by virtue of Section 176(2) of the Local Government Act 2001.

However,  SIPO then decided that there was no need for the 2 directors to declare their beneficial interest (an interest which was accepted by SIPO as being a beneficial interest and which is clearly defined in the legislation) at local authority meetings where their respective companies would  gain millions of euros following the decision of Kerry County Council to rezone rural and secondary special amenity land to industrial for an LNG terminal because the interest was not “material”.

SIPO stated that the beneficial interest was not “material” because it could not be proved that the directors gained any personal benefit from the decision.

However, Section 176 (3) of the Local Government Act 2001 determines the only conditions under which a person voting in a motion does not have to declare the beneficial interest as follows:

Section 167(3) only applies to shareholders, not directors and there are no relevant regulations prescribed by the Minister.

Voting in a land rezoning deal which is worth millions to the companies of which the councillors were also directors cannot be said to be so remote or insignificant an interest that it would not influence director’s decision to vote on the motion.

Indeed, both directors have openly admitted that they were influenced by their positions as directors as follows:
     


It has  come to the attention of 'Safety Before LNG' from information received on December 2009 under a Freedom of Information request that from 2005 to November 2009, John Brassil obtained from Shannon Development  €87,504 in Director's Fees, €20,966.09 in mileage, €496.15 in taxis, buses and trains, €97.20 in parking, €262.16 in sundries and €231.49 in foreign travel - giving a total of €109,557.09  in expenses received by him from Shannon Development in that time period. This new information was forwarded by 'Safety Before LNG' to SIPO on March 2010.

Shannon & Foynes Port Company is not open to Freedom of information requests and it is therefore not possible to determine exactly the Director's Fees obtained by Senator O'Sullivan.

This decision has  left a lingering doubt of a lack of transparency by the Standards in Public Office Commission that would seem to point to suspicion in our minds of susceptibility to political considerations, and therefore interference,  in its decision-making process.

A dangerous precedent has now been created in allowing increased corporate influence on local authority decisions. This goes far beyond the remit allowed in legislation to the Commission.  SIPO has now decided that directors of  any companies who are also on local authorities where votes which will enrich those same companies are taking place do not have to declare these interests if they are not personally benefitting from the tansaction (something which is difficult to prove in the first place).

'Safety Before LNG' is of the opinion that this precedent would be created without proper authority, would be improperly discriminatory, would create an undesirable administrative practice and would be contrary to fair and sound administration.

A request for a clarification from the Minister concerned on whether or not a directorship now no longer needs  to be declared under section 177 of the Local Government Act 2001 was submitted by 'Safety Before LNG'. As the minister's office refused to decide on the matter the issue was forwarded to the Office of the Ombudsman on March 2010.

Click  here to download the entire Standards in Public Office Investigation into the non-disclosure of directorships by councillors John Brassil and Ned O'Sullivan at the Shannon LNG land rezoning decision (18.7 MB).