COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL

south dublin county council crest

MEETING OF DEVELOPMENT PLAN MEETING

Monday, September 06, 2010

HEADED ITEM NO. 16

HEADED ITEM:

Casement Aerodrome, Baldonnell - Security Issues and Air Safety (Including proposed amendments to Schedule 4).

REPLY:

There are a number of pertinent issues with respect to the proposed amendments relating to Casement Areodrome, Baldonnell. Having considered in depth the effects of the proposed amendments, the Manager's recommendations are laid out below, in the interests of clarity the report has been split into the particular amendments which affect this matter and have been further split into those recommendations that affect security and those that affect safe air navigation.

However some general comments are relevant prior to dealing with particular amendments . Following the discussions and amendments at the May meetings legal advice was sought and is attached and summarised in the report below. The issues of state policy and potential compensation issues are dealt with therein.

PA109 ( Policy EE39)

It is considered that the Proposed Amendment is acceptable and should be incorporated into the Development Plan 2010-2016.

In the interest of consistency, it is considered that Policy EE39 should be amended to reflect the change in Department of Defence policy (i.e. introduction of public safety zones) in relation to the previous ‘no-development restriction area’.

It is also considered that the wording of Policy EE39 should be amended to replace ‘…again negotiate…’ with ‘…continue to negotiate…’ and ‘…with the aim of reducing the no-development restriction area…’ with ‘…regarding restrictions at…’. In order to clarify the position of the Council with respect to implementation of this Policy it is proposed to insert the following wording '..on the basis of  the potential implementation of a security consultation zone.., this wording to be inserted after '.. Casement Aerodrome , Baldonnell..'. This revised wording would more accurately reflect the current situation, having regard to consistency with other proposed changes contained in this document and ongoing contact between the Council and the Department of Defence.

The amendments referred to above, as shown in the most recent Manager’s Report (July 2010), require further modification in order to read correctly and to be consistent with other changes recommended in this document.  The new modifications now proposed are shown in strikethrough (text to be deleted) and underlined (text to be added).

‘Policy EE39: Restriction Area at Casement Aerodrome

It is the policy of the Council to continue to negotiate with the Department of defence regarding restrictions at Casement Aerodrome, Baldonnell to that of norm at international airports generally, thus on the basis of the potential implementation of a security consultation zone and with a view to allowing some currently zoned lands to be opened up for use.’

 It is the view of the Manager that given the serious concerns arising from Policy EE39(A), as laid out below, that the above clarifications and amendments to the already existing Policy of this Council would be  the most prudent method of achieving a considered and balanced approach to the many complex issues surrounding the implications of the millitary aerodrome at Baldonnell.

 

PA110 (New proposed Policy EE39(A) and PA211( Ammendments to Schedule 4)

Unlike other countries, Ireland has only one military airfield to provide maximum security for the highest level intergovernmental tasks, for sensitive extraditions and as the point of arrival and departure for security-sensitive VIPS.  In this context, the lack of clarity on the nature and practical application of a security consultation zone, presents difficulty. 

In its submission on the Proposed Amendments to the Draft Development Plan dated 17th June 2010, the Department of Defence contended that

‘the Council would be acting outside its remit to amend the policy of a Government Department’

i.e. by replacing the existing Department of Defence Security Zone Restriction with a ‘Security Consultation Zone’. 

The Law Agent sought legal advice on behalf of the Planning Department in order to clarify this and other related matters. (Full copy of legal advice recieved is attached seperate to this report).  The advice of Senior Counsel was as follows:

‘There can be no doubt that the Council has no power, statutory or otherwise to amend a policy of a government Department and that in so far as the Council purported so to do, it would be acting ultra vires.’

However Senior Counsel goes on to add. 'However, it seems to me that the question as to whether or not the Council has the power to amend a policy of a government department only arises by reason of the somewhat unfortunate phraseology adopted in the proposed amendment.  It seems to me that what was probably intended was to adopt a policy either to seek to have amended the current Department of Defence Security Zone Restriction by the Department in the sense of lobbying the Department so to do or alternatively, to adopt a policy to depart from the current Department of Defence Security Zone Restriction around Casement Aerodrome.

'Accordingly, in my opinion the members ought to be advised by the Manager that in order to avoid a potential vires issue, the phraseology of the proposed amendment must be altered.'

Furthermore, the legal advice stated that

‘…from the point of view of compensation, it is important that the Development Plan is crystal clear as to the extent to which the Minister’s policy is adopted, rejected or departed from’. 

 

Notwithstanding this, the advice further stated that

‘…if it is clear that the Minister’s policy is rejected unequivocally in the Development Plan, and the Planning Authority refuse permission for development of a type within the zoning of the particular area, then a claim for compensation will arise’.

Having regard to

·        the strong position adopted by the Department of Defence on national security grounds,

·        the legal advice received (particularly in relation to the potential compensation issues),

·        the lack of clarity on the nature and practical application of a security consultation zone,

·        and having examined and given full consideration to the substantive issues including the issues raised in the submissions,

it is strongly recommended to the Members that the position of the Council regarding the security zone around Casement Aerodrome should revert to that of the Draft Plan.

The legal advice is clear that a compensation claim “will” arise should an application be refused, either by SDCC or An Bord Pleanala, on the basis of this policy alone.

Reverting to the position of the Draft Plan would result in the following changes:

Manager’s Recommendation

(a)       It is recommended that Policy EE39 should be amended to read as follows:

‘

‘Policy EE39: Restriction Area at Casement Aerodrome

It is the policy of the Council to continue to negotiate with the Department of defence regarding restrictions at Casement Aerodrome, Baldonnell to that of norm at international airports generally, thus on the basis of the potential implementation of a security consultation zone and with a view to allowing some currently zoned lands to be opened up for use.’

 

(b)       It is recommended that proposed new policy EE39A ‘Casement Aerodrome – Security Consultation Zone’, as put forward by Proposed Amendment PA110 and which it was proposed would read

‘It is the policy of the Council to amend the current Department of Defence Security Zone restriction around Casement Aerodrome, Baldonnell, so that it becomes a Security Consultation Zone, within which standard security measures will be applied in line with international best practice at military and civilian aerodromes.  The security measures at Baldonnell should be the same as those imposed at these State airports’

be deleted and that the position of the Council regarding the security zone around Casement Aerodrome should revert to that of the Draft Plan.

(b)       It is recommended thatitem 3 of the Explanatory Note in Schedule 4, which comprises the first sentence of policy EE39A above, be deleted and that the position of the Council regarding the security zone around Casement Aerodrome should revert to that of the Draft Plan.

(c)               It is recommended that the sentence shown in red strikeout on page 126 of the Proposed Amendments report which reads

‘For safety and security reasons, it is also policy that no new development be permitted within the restricted area shown on the Maps and which comprises the aerodrome and the lands immediately adjoining the aerodrome boundary’

be reinstated. 

  Part B of Reprt

Safe Air Navigation Issues

 Report

 It is considered that the phrase ‘within the red zones, some development is permissible’ may convey a misleading presumption in favour of development. It is considered that replacement with the phrase ‘within the red zones, some development may be permissible’ would more accurately express the position vis-à-vis development and eliminating any potential conflict with safe air navigation.

 Manager’s Recommendation

 It is recommended that the phrase ‘within the red zones, some development is permissible’ should be replaced with the phrase ‘within the red zones, some development may be permissible’.  This change applies to section 3.2.22 ‘General Guidance for Development in the vicinity of Aerodromes and to Schedule 4 ‘Casement Aerodrome, Baldonnell’ –  Item 2 of the Explanatory Note and the fifth paragraph on page 126 of the Proposed Amendments report.

 

It is recommended that all other changes relating to safe air navigation at Casement Aerodrome as set out in PA112 and PA211 are acceptable and should be incorporated into the Development Plan 2010-2016.