COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL
MEETING OF DEVELOPMENT PLAN MEETING
Monday, September 06, 2010
MOTION NO. 38
MOTION: Councillor R. Dowds
That it is the policy of South Dublin County Council to amend the 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.
REPORT:
The motion seeks to alter the wording of new policy EE39A ‘Casement Aerodrome – Security Consultation Zone’ put forward as Proposed Amendment PA110, by omitting the last two sentences as follows:
‘The state airports at Dublin Cork and Shannon operate the highest levels of security. The security measures at Baldonnell should be the same as those imposed at these state airports’.
Notwithstanding this proposed change, it remains the strong advice of the Manager that Proposed Amendment PA110 (i.e. new policy EE39A) be deleted and that the position of the Council regarding the security zone around Casement Aerodrome should revert to that of the Draft Plan.
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. (A full copy of the legal advice received is attached to Headed Item 16). 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 deletion of new policy EE39A ‘Casement Aerodrome – Security Consultation Zone’, as put forward by Proposed Amendment PA110 which is the subject of this motion, in addition to several other changes which are set out in the report under Headed Item 16.
Manager’s Recommendation
It is recommended that the motion is not adopted for the reasons set out above and in the Headed Item on Casement Aerodrome.