Joint Committee on Arts, Heritage, Regional, Rural and Gaeltacht Affairs debate -
Wednesday, 18 Jan 2017

Sustaining Viable Rural Communities: Discussion (Resumed)

Chairman

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. If, however, they are directed by the Chairman to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Opening statements and other documents submitted to the committee may be published on its website after the meeting.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses of the Oireachtas or an official, either by name or in such a way as to make him or her identifiable.

This is one of a series of meetings the committee is holding to consider the particular issues involved and the development of regions throughout the State. I ask Mr. Fitzgerald to make his opening statement.

Mr. John Fitzgerald

I thank the Chairman and members of the joint committee. We had largely understood the subject matter in our appearance would mainly be the N59, on which we are working with the National Parks and Wildlife Service. In the past few days and again this morning we received notification that various members wanted to speak about different roads. I have not been briefed on all of them and I am not sure if the issues are being raised in the context of our role with the National Parks and Wildlife Service, but we are happy to discuss them with the committee.

We thank the committee for giving us the opportunity to discuss the N59 road project. With a broad range of functions, including in the areas of rural affairs and regional development, the Department is fully cognisant of the importance of the project to the western region and keen to assist in whatever way it can to ensure it is delivered in a way that is compliant with national and European Law.

The N59 stretches from south of Sligo town, through County Mayo and Connemara, to Galway city, but the portion in which we are interested today is the portion in County Galway stretching from Oughterard to Clifden. The project encompasses two separate but related development projects – the Oughterard to Maam Cross and the Maam Cross to Clifden projects.

The development of the Oughterard to Maam Cross section of the N59 was approved by An Bord Pleanála in December 2013. The board made its decision at the time subject to certain conditions. The Department’s involvement at this stage of the road project is very unusual. In the normal course of events, when an application is approved by a planning authority, whether it be a county council or An Bord Pleanála, following consideration of observations made by a range of statutory consultees under planning law, including the Department and the National Parks and Wildlife Service, such a development is free to proceed without further reference to the Department. In this instance, however, the role of the Department post-consent arises from an unusual condition attached to the planning permission imposed by An Bord Pleanála. It provides, "Prior to the commencement of construction, the Construction Stage Erosion and Sediment Control Plan and all method statements will be finalised by the construction stage contractor and will be subject to the approval of Galway County Council and the Agreement of NPWS and IFI". This condition was proposed by Galway County Council at the second oral hearing during the planning process. It is our understanding such a condition was included to ensure, inter alia, that the project would proceed in a manner consistent with Ireland's legal obligations under the habitats directive which all public authorities, including Galway County Council, are required to fulfil.

Eight method statements have been submitted by Galway County Council to the Department. Unfortunately, it has not always been possible for the Department to approve the method statements submitted for a range of reasons, including because they had not been approved by the council in the first instance prior to submission, inconsistencies in data presented or because of the omission of or uncertainty attached to key information. On such occasions, the council was requested to provide the outstanding information or revise and resubmit the method statements in accordance with the terms of the planning permission.

To date, two of these have been approved by the Department. To ensure a more unified approach to the development, on this Department's initiative, senior officials from the Department and the then Department of the Environment, Community and Local Government met the chief executive and other senior officials of Galway County Council on 27 April last to discuss the project. The purpose of the meeting was to see how the project could proceed as quickly as possible in compliance with Irish law, European nature directives, the council's obligations and, in particular, having regard to the freshwater pearl mussel, of which there is a significant and important population in the Owenriff river.

The freshwater pearl mussel is protected and is an extremely sensitive species that is dying out in many places. As Ireland has a large proportion of the European population of these mussels, the Commission has paid particular attention to activities here that might be harmful. Indeed, following the An Bord Pleanála decision of December 2013, the Commission contacted Ireland and raised concerns about the impact of the project on the pearl mussel. We understand that a number of complaints related to the board's decision were made to the Commission as well. Since 2006, an ongoing legal process has been under way with the Commission. Thus far, Ireland has managed to prevent an escalation to a full case before the European Court of Justice.

In this instance, primary responsibility for complying with the European nature law lies with Galway County Council as the developer and, as such, the need to ensure compliance with European law was fully endorsed by all at the meeting. It was agreed that the Department would work with the county council to see how best the project could proceed. This approach was subsequently endorsed on 15 June last year at a meeting chaired by the Minister of State at the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, Deputy Kyne, and attended by Oireachtas representatives from west Galway, officials of Galway County Council and officials of our Department.

On 16 September 2016, officials from the Department travelled to Galway to meet council officials to see what practical steps could be taken to move on the project. It was agreed that the best approach would be to progress the road project section by section. The idea behind this was to allow the development to advance by progressing the less sensitive sections of the road quickly. In parallel, it was agreed to continue to explore how best to deal with the more challenging sections. At that meeting, the Department gave a commitment that it would review and respond to method statements submitted to us within ten days of receipt.

We understand that the local authority is making arrangements for the preparation of a method statement for the Maam Cross to Bunakill section now. This is approximately 5 km from Maam Cross to the edge of the pearl mussel catchment. While this is still awaited from the council, at this point the Department does not envisage any significant problems advancing that part of the road. In the meantime, it is also understood that Galway County Council is considering upgrading the surface of the other sections of the road. We understand that this is not being put forward by the council as a long term solution but rather is intended to improve the road on an interim basis while the council charts the best way forward to develop the entire route. At this point, it is largely a matter for the council to decide how best to progress the remainder of the road project.

The Department has engaged with, and has provided advice to, the developer, that is, Galway County Council, throughout the pre-planning stage for the Maam Cross-to-Clifden section of the road project. The receiving environment for this project is of great importance for nature conservation. Extensive areas of the project form part of the Natura 2000 network of European sites. The network is made up of special areas of conservation and special protection areas. Four such sites are intersected by the projects, namely, the Twelve Bens Garraun complex SAC, the Maumturks SAC, Connemara bog complex SAC and Connemara Bog complex special protection area.

On 20 May last, An Bord Pleanála published its decision to refuse planning permission for this section of road for reasons related to the habitats directive. The decision appears to have been reached as a result of a lack of information and data presented to it in the context of the habitats in the location of the proposed road development. The Department understands from recent discussions with Galway County Council that the council is now considering how to progress this portion of the road in sections. We understand that the council believes it should be possible to advance some sections of this element of the road relatively quickly while finalising the best way forward for the entire route. Again, this is a matter for the council to bring forward but the Department will work within its remit and proactively to assist the council. The Department wishes to assist the county council in whatever way it can with this project. We believe that by complying with national and European laws, the project should avoid falling foul of legal challenge. While key decisions on exactly how to move the project forward remain to be made by the council, the Department will keep in contact with it, will provide such advice and assistance as it can and will deal with any submissions, method statements or proposals received in a timely fashion.

We will be happy to provide further information and to try to deal with any questions that members may wish to pose.

Chairman

Míle buíochas as sin. We will have a number of questions. Under the normal procedure, we have five minutes of questions and allow for five minutes of answers. If people want to come in a second time afterwards, that is fine. I appeal to everyone to focus their questions and statements on the National Parks and Wildlife Service input into the process.

Deputy Éamon Ó Cuív

I have a general question. Has the Department any idea how many road projects or basic public infrastructure projects, including those relating to water and so on, have had to go to An Bord Pleanála and the number of those cases in which the Department has not withdrawn concerns or objections before the end of the oral hearing or, if there was no such hearing, the end of the written process? In other words, how common is it for the Department to remain unhappy despite the fact that these projects are being supported by the State? This happened with the Galway bypass, for example. We need to get some sense of the scale of the problem of the State not resolving issues before the An Bord Pleanála process is complete.

It is proposed that the R336 road between Galway and An Spidéal would go through a national heritage area. Would it be possible to amend the proposed legislation to include a more general provision about removing lands from national heritage areas? Would it be possible to set aside enough land from the NHA to build the road to An Spidéal on the line that the people of Connemara want? Part of the way out of An Spidéal is all in a national heritage area rather than a special protection area. If the legislation was amended would there be any ecological reason to refuse it and put in place some other compensatory measure to allow that road to get built?

I seldom hear a statement from the Department as damning of another agency as the statement from Mr. Fitzgerald. The Department is normally careful in what it says. Mr. Fitzgerald said that Galway County Council asked for this condition to be included. When the proposal for the Maam Cross to Oughterard stretch went to An Bord Pleanála, did the Department express concerns that remained following the two oral hearings? In other words, have the concerned of the Department not been addressed? Were there outstanding issues or concerns that the inspector was being asked to adjudicate on? I presume Mr. Fitzgerald understands what I am trying to say. Was that the reason the county council suggested the Department should submit method statements? If that is the case, it seems to indicate some lack of communication between the two agencies in developing a plan for the road. Perhaps that is what has led us to this frustrating position.

Furthermore, Mr. Fitzgerald said that the Department could not approve method statements because some simple things had not been done. For example, the council had not approved something it was under an obligation to approve. If it was something simple, it could have been brought to the council to get it approved. Mr. Fitzgerald also referred to inconsistences in the data presented and the omission or uncertainty of key information. Perhaps Mr. Fitzgerald can confirm whether I am reading it correctly, but he seems to be suggesting that these method statements were deficient. I presume the council used expert consultants to do this work. This raises a question that we will have to ask the county council. Should the council be paying these consultants if they are not delivering top-quality documents?

I have a few questions on pearl mussels. Europe seems to have destroyed most of its pearl mussels but we did not. How prevalent is the pearl mussel in Ireland? It seems to be in every god-damned river in the west of Ireland. How scarce it is in Ireland? I accept we probably have the best remaining examples of machair habitats but are we becoming the whipping boy for Europe because we did not destroy our heritage? I ask the delegation to give a general explanation, I am sure Dr. O'Keeffe will be able to do so, on the prevalence of pearl mussels.

Mr. Fitzgerald said in his presentation, "Since 2006, an ongoing legal process has been under way with the Commission." I take it that has to do with the pearl mussel but nothing to do with the pearl mussel in this particular river or anything that has happened there. In other words, the case relates to other incidents of pearl mussels and has nothing to do with the N59. In fact, one of the amazing things about the N59 is that planning permission was refused for a new bridge because its shadow might interfere with a few pearl mussels underneath.

The Maam Cross to Clifden section went to An Bord Pleanála. When the Department was in An Bord Pleanála process, had it withdrawn all of its concerns? Was it still expressing concern before the inspector about the proposals of the county council and others? Are we again in a situation in which these issues were not resolved beforehand despite the fact that the Department had said it had engaged with the developer? In this case it was the local authority and Transport Infrastructure Ireland, TII.

Mr. Fitzgerald has put a damning statement on the record of this House. He stated, "The [board's] decision appears to have been reached as a result of a lack of information and data presented to it in the context of the habitats in the location of the proposed road development." In other words, the Department is saying again that the county council and the experts that it hired, who would have received a massive amount of money, did not do their homework and that this is what has left us in a lot of the mess. I ask Mr. Fitzgerald to confirm this.

I ask the delegation to confirm that between Clifden and Derrylea, which is the western section of the road, there are no significant adjacent natural heritage issues. I ask them to also confirm that the county council is fairly free to go ahead and develop its project between the town and the new and improved section of the road, which is a stand-alone piece, that it is unlikely there would be natural heritage or habitat implications and that the project could go ahead, thus benefitting the people of Connemara.

Chairman

Would the witnesses like to address the questions?

Mr. John Fitzgerald

We will do our best.

Deputy Ó Cuív asked about the number of infrastructural projects with which our Department, and in particular the National Parks and Wildlife Service, may have raised concerns as part of the planning process as a statutory consultee or later on when something was submitted to An Bord Pleanála. I do not have any figures to hand.

Deputy Éamon Ó Cuív

If I may explain, I am not interested in what happened tit for tat.

Mr. John Fitzgerald

Yes.

Deputy Éamon Ó Cuív

I do not wish to put a lot of work on the Department but we need to understand the scale of the problem. I am talking about what happened when the Department went to the inspector for an informal oral hearing and at the end of the hearing, it was clear to the inspector that the Department was still not happy with the proposal despite all of the iterations. I am not interested in hearing whether at some stage the Department raised an issue that was addressed, even going into the hearing or during the hearing. I am interested in learning what happened because when the inspector went home after the hearing was over, he knew the NPWS was unhappy. That is just by way of clarification because I do not like putting unnecessary work on Departments.

Mr. John Fitzgerald

As a statutory consultee, the Department gives its observations in terms of its functions. We are not a decision-making body in terms of planning. In general, the projects we are talking about are a matter for An Bord Pleanála whether they are Part 8 projects or strategic infrastructural developments. The NPWS, as with other statutory bodies, may be called by An Bord Pleanála to an oral hearing. We are asked about specific issues and give our views. There may often be conflicting views between what we say and what is said by a developer.

Deputy Éamon Ó Cuív

I referred to-----

Chairman

Please, without interruption. There is only one minute left in this ten-minute section and other people wish to comment. The Deputy can ask questions later.

Deputy Éamon Ó Cuív

I want to make it clear that we are talking about public developers. In other words, these are local authorities.

Chairman

I have been very flexible in terms of giving Deputy Ó Cuív opportunities to speak. He can ask questions later.

Deputy Éamon Ó Cuív

Yes. I shall be here until 12 noon.

Mr. John Fitzgerald

We give our views and expertise in order to make our points. Then it is a matter for the inspector and, ultimately, for An Bord Pleanála to make an appropriate assessment having taken all of the issues into account. We do not have the final say on these issues.

As regards the R336, I am not aware whether a final route has been chosen. I know various routes have been proposed over the years. I know there are certain difficulties with nature conservation areas that are, as the Deputy mentioned, the Moycullen natural heritage area or the Connemara bog complex. There were other proposals for routes that might go through some communities or clocháin. I am unaware of a preferred route. We have engaged previously with the local authority in terms of providing advice at the pre-planning stage but I do not think there is a planning application at the moment.

The Deputy asked whether part of a natural heritage area can be taken out. I simply do not know the answer. The science would probably have to be considered. I am unaware of a specific proposal but perhaps the matter can be examined.

Deputy Éamon Ó Cuív

What is the Department's preferred proposal?

Chairman

Does Dr. O'Keeffe wish to address a question?

Dr. Ciarán O'Keeffe

In regard to the de-designation of NHAs, the NHAs for bogs were designated on foot of a case taken by the European Court of Justice against Ireland under the environment impact assessment, EIA, directive. Many years ago the solution included the designation by Ireland of some NHAs, thereby increasing the amount of protected bog, and undoing that solution would have to be approached carefully.

The Deputy asked about the prevalence of the pearl mussel. It is present in 100 rivers in Ireland. It has not reproduced successfully enough to maintain its number here. In other words, the pearl mussel population is in decline in every river, including in the SACs. If I recall correctly, a total of 27 rivers within SACs have pearl mussels and are listed as having pearl mussels. Our focus has been on trying to do our best for the top eight rivers where there is some chance of them starting to increase in number again. The Owenriff river is one of those rivers. It is still one of the best eight rivers in the country.

Chairman

Deputy Ó Cuív asked about the prevalence of the actions of the Department's organisations in the development process. It could be useful for us to have a map of the roads, planning applications, processes and level in which the Department is involved. The Department can be involved in the pre-planning process after An Bord Pleanála gives advice or it can make a determination in terms of the method statements and processes. I ask the witnesses to provide the committee with a colour-coded map, as it would enable members to know at exactly what level each interaction with the planning process has reached.

Mr. John Fitzgerald

Yes, Chairman. It may be hard to determine what level something has reached. The method statements are a one-off. We are not involved in them. In many ways, our difficulty is that we do not have the engineering expertise to get involved in method statements. I am sure that we can analyse our statistics to identify the number of cases in which we have provided observations to local authorities or An Bord Pleanála. We may be able to further isolate the information on our databases into statistics on public infrastructure. We will certainly do that if it is possible.

Senator Trevor Ó Clochartaigh

The level of anger and frustration in Connemara is due to the fact that we do not have any proper road into or out of the region. People cannot understand why this issue has not been resolved. They hear about meetings between Oireachtas Members and Departments. They get a sense that there is movement, but then they hear there is another logjam. That is the backdrop to the case. Is the problem with the N59 project unique or is the Department engaged in similar cases with other local authorities in respect of other planning projects?

Were the two method statements agreed to basic and simple? Is that why they were agreed to so quickly? What is the nature of the other six and why is it so difficult to get information on them?

Will the Department elaborate on the case before the European Court of Justice and the issues involved? What is the background to the case and who is to blame for what went on? The meeting on 16 September which I attended was referred to. It was agreed that the method statements would be turned around by the Department in ten days. How many of them have been received since? If any was received, was it turned around in the timescale envisaged? Is the lack of engineering expertise in the Department holding up the process in any way? Is it a question of resources in the Department to deal with the method statements? If so, what would the Department need to progress more quickly?

The committee would like to know what lessons can be learned from this process to ensure it will not happen in other areas. We want to resolve the issues on the N59 as quickly as possible, but we would also like to be able to make recommendations to the Department to influence legislation and ensure the process is robust, as well as efficient.

On the compensatory measures included in the available toolkit, the substantial issues are in the Glengowla area with freshwater pearl mussels. What toolkit is available to the county council? What compensatory measures can be considered as part of the method statements being put forward?

Mr. John Fitzgerald

This case is relatively unique. I cannot think of any other in which we are involved at this level. It has nothing to do with Galway County Council and how it operates. It is operating well in conjunction with the Department. What is at issue is that we have been placed, with Inland Fisheries Ireland, as a secondary consent authority after An Bord Pleanála made its decision. As I mentioned, in the normal course, such developments would proceed once the statutory process had been completed. The problem is not particular to Galway County Council; it is just the way the decision was made.

The two method statements approved were relatively simple. They concerned the construction of compounds and some ground investigation works. We held a workshop with Galway County Council to see how best they could be presented to the Department and agreed to a template for them. It was difficult for both organisations to do this because Galway County Council does not have any experience in submitting method statements for approval to another body, namely, the Department which also has no experience in dealing with them. The lack of engineering expertise in the Department was not an issue because we had not reached the stage of actually looking at the issue of road construction. At that stage we were looking at the design and the nature of the conservation elements. That is why we met council officials in April last year to determine how we could work better together on the method statements and so on. That is the solution which has been reached by Galway County Council in dealing with the project section by section. It may be the best way forward.

I can understand how there is frustration about the project. We did meet council officials in September, but we have not received a method statement from Galway County Council since. I understand, however, that it is in the process of acquiring engineers to do so. The commitment to turn around the method statements within ten days remains. If a method statement for the Bunakill-Maam Cross element of the project is sent to us, we do not see any issue arising because it is outside the pearl mussel catchment area. The element of the project in the Glengowla and Lough Agraffard area is difficult because of the presence of the pearl mussel population.

On compensatory measures, the Senator is probably referring to the IROPI, imperative reasons of overriding public interest, process, whereby projects may go ahead, even though they may cause damage to Natura sites, if there are imperative reasons of overriding public interest. In these cases, several conditions are required to be met. First, as the name suggests, there have to be imperative reasons of overriding public interest and there have to be no alternatives available. I am sure these arguments could be made in the case of the N59 project. Compensatory measures also need to be put in place to compensate for any habitat loss. As far as I understand, this is not a route Galway County Council or Transport Infrastructure Ireland is intending to pursue at this stage. It certainly is an option, however, that may be worth further consideration.

Dr. Ciarán O'Keeffe

As regards the European Court of Justice judgment, there were two processes involved. The court's decision concerned the environmental impact assessment directive. At a late stage in trying to find solutions to enable Ireland to give an adequate response to the court's judgment the natural heritage area issue was brought in. It was a long time ago and I am not sure if many of the people who were involved directly in the negotiations are still working with us. It ultimately led to the designation of 75 NHAs around the country. They are the only statutorily protected NHAs. In the meantime, since 2006, we have had a string of pilot cases at the pre-infringement level with the Commission about the pearl mussel in various parts of the country. They stretch from County Donegal to County Kerry and to the east.

Senator Trevor Ó Clochartaigh

Has there been any case in Galway?

Dr. Ciarán O'Keeffe

Yes. As soon as the decision was made about the N59 project, the Commission wrote to us, requesting that it be kept informed to ensure we were following the law as laid down in the habitats directive. There was a difficult case on the Bundorragha River in County Mayo where essential works to a bridge ran into difficulties. The best pearl mussel population is in the Delphi fishery where there was also a difficult issue.

Our job is to advise on the nature of conservation issues, but we do not have engineers. It would be useful if local authorities generally had one ecologist among their staff. Sometimes there is a need for better communication. In some counties there are biodiversity officers who might assist their engineering colleagues in explaining why the hell we have to do this. From an engineering point of view, sometimes the obvious simple solution runs into difficulties.

Deputy Éamon Ó Cuív

Could a local authority not buy in consultants? A certain well known expert on the pearl mussel was brought in by the county council.

Dr. Ciarán O'Keeffe

That is true.

Deputy Éamon Ó Cuív

One does not need to have an expert among the staff; one can buy in expertise.

Dr. Ciarán O'Keeffe

One can buy in expertise. However, sometimes having persons within the staff who understand one's structures and who have a long-term commitment to the body, for instance, the local authority, could be a useful asset in getting over some of these problems. At present, we have very few such persons employed round the country in local authorities.

Deputy Noel Grealish

I thank the Chairman for giving me the opportunity as I am not a member of the committee. I thank him for allowing me to contribute a second or third time.

Mr. Fitzgerald is correct. There is a lot of frustration in Galway regarding this project. We, as public representatives, are getting it constantly. Practically not a week goes by in Galway but there is some comment on the radio or something about a meeting being held regarding this project, and we are still no further on.

I remember - Deputy Ó Cuív was involved in this - we secured funding a number of years ago to get a pedestrian bridge in Oughterard so that the children from one end of the village could cross the Owenriff river to get where all the schools are on the other side and the National Parks and Wildlife Service objected on the grounds that the shadow from the bridge would affect the freshwater pearl mussel, and the funding had to be sent back. Then one has to stand up in front of a meeting and explain to parents who are trying to get their children to school safely that the fresh water pearl mussel is more important. In 1974, when they built the new bridge in Oughterard, they used dynamite to blow the rock out of the river. I presume one or two freshwater pearl mussels flew out with it, but they survived. We all have a responsibility to protect the environment and we all play our role in that as Oireachtas Members, but we have a responsibility also as Oireachtas Members to provide better roads for those who use them. A total of 187 people were killed on the roads last year. The number has already risen this year. We have a responsibility to ensure we put a proper road in place. We can put a man on the moon and bring him back but we cannot build a bit of a road between Oughterard and Clifden. Mr. Fitzgerald should try to explain that to the public. What is so important about the freshwater pearl mussel?

I remember going out to Ballyconneely as a boy. I was only six or seven, and we were practically on a dirt track. In all fairness to various Governments down through the years, significant upgrades have been made to that road but the freshwater pearl mussel has still survived. When that work was done the National Parks and Wildlife Service did not have any role, but with all these new rules and regulations, and when one hears President-elect Donald Trump turning his back on Doonbeg because of Europe and these rules and regulations that have come down on top of them, what kind of signal does that send out about investment in Ireland? We are too strict in implementing these rules. There should be a little bit of leeway on this. We had spent €14 million of that €19 million on the proposal to build a new ring road around Galway city. That was knocked down because of the bog cotton and the limestone pavement. We would have been better off if we had put that money into a car park and burnt it.

We are going through a process in Galway city to build a new N6 road project. What consultation has taken place between the National Parks and Wildlife Service, Arup and Galway County Council on this project and will there be problems regarding that project as well? I would like Mr. Fitzgerald to comment on that.

Returning to the N59, my colleague, Senator Ó Clochartaigh, touched on the fact that eight method statements were submitted by the local authority and, as Mr. Fitzgerald stated, only two minor ones were approved. Mr. Fitzgerald stated he went down and met the local authorities. I presume these method statements are being put together by consultants who are being paid and, as Deputy Ó Cuív stated, the meter is running and the cost is rising. Has Mr. Fitzgerald met the consultants? Have the local authority, the consultants and the Department sat down around a table to try and find a solution to this?

Finally, in his conclusion, Mr. Fitzgerald stated, "We believe that by complying with national and European laws, the project should avoid falling foul of legal challenge." Can he outline who will take the legal challenge, on what grounds this legal challenge could be taken and who would instigate this legal challenge?

Mr. John Fitzgerald

I will try and deal with those issues and let my colleague, Dr. O'Keeffe, in only on the importance of the freshwater pearl mussel, which Deputy Grealish raised. I fully understand the level of frustration and I am aware of the campaign that is ongoing there. Indeed, it must be difficult for all concerned and for the people of the area.

In relation to the bridge in Oughterard etc., I would reiterate the point that the NPWS did not stop the project. The NPWS is not a decision maker. We give our views on nature conservation and that is our statutory role. The decision makers then need to make an appropriate assessment, which is done under both European and Irish law, and make their decision taking all factors into account.

Chairman

Is it European law that is forcing the adherence here, pure and simple?

Mr. John Fitzgerald

It is the European habitats directive, which has been transposed into Irish law.

Deputy Éamon Ó Cuív

This is an obligation of membership of the European Union. No doubt when Mr. Fitzgerald states this will damage the pearl mussel, it is significant - one of the requirements is it must be significant. Then the decision maker has virtually no choice. Europe probably says it is an Irish law but it never says the Irish law was made with a knife in their back where they were told to walk. This is the situation here. The law says one thing and if Mr. Fitzgerald says it is significant, then the decision maker really has no choice. Is that not it, in simple English? It is common sense.

Mr. John Fitzgerald

It is a matter for the decision maker to make his or her own views. The decision makers, by and large, will engage their own ecological expertise when they are making a decision in complex cases.

Deputy Grealish asked about legal challenge. That is something we would have a concern about. First, Ireland could find itself in the dock with the European Commission, but, indeed, the project itself, the N59, could find itself in difficulties. Just after An Bord Pleanála made its decision on the N59 in December 2013, we understand there were two complaints to the Commission, one of which was by Friends of the Irish Environment. The Commission raised its own concerns about the N59. People are very aware of this and as we know, there are people who have particular interests in various ecological issues and could at any time raise a challenge, whether seeking court injunction or whatever. What would be important for us is that we are sure we are proceeding down the right route so that once we get going nothing will stop.

Deputy Éamon Ó Cuív

Then how did they stop it?

Chairman

I will let the Deputy back in shortly.

Dr. Ciarán O'Keeffe

On the importance of the pearl mussel, it goes to the two questions. The issue is that the European courts have repeatedly made judgments in regard to not proceeding with projects that go through or are in SACs or SPAs unless there is no doubt that they will not have impact, regardless of what issue one is trying to protect. Our role there is to advise on whether there is clarity to that extent. A lot of the time we can do that but there are times when we cannot provide that clarity. For example, going back to the Galway bypass, my understanding from talking to Arup and other officials in the past couple of years was that, one way or the other, when they went back and did the further study they realised they would have to go through difficult areas because so much of the traffic was going into the city as opposed to bypassing the city entirely. It was not only an ecological issue in the end. It was actually about where people needed to go.

Deputy Noel Grealish

The bog cotton and the limestone pavement were first.

Dr. Ciarán O'Keeffe

They were maybe the first issues that came up but my understanding is that-----

Deputy Noel Grealish

The then Minister, Mr. John Gormley, designated limestone pavement at the route at that time. Senator Ó Clochartaigh might confirm if I am correct. That knocked it, which was a blatant abuse of ministerial power by a Minister. That is my view.

Dr. Ciarán O'Keeffe

I am sure we will continue to have useful meetings with both the consultants and the local authority to find a way forward, for that as well as for this.

Deputy Noel Grealish

What consultation, including the National Parks and Wildlife Service, has taken place on the current project? That is important as well. Are there any obstacles that will pop up? There is another €6 million or €7 million spent already.

Mr. John Fitzgerald

Deputy Grealish mentioned consultation on the N59 as well and I will briefly refer back to that. We met the consultants and Galway on how the method statements might be sent on to us. It is early days. I understand that the local authority has not yet got consultants or engineers to prepare the method statements for it for the Maam Cross to Bunakill section of the route, and it is still involved in a process of doing that. We have been at early presentations by Arup in relation to the bypass at a stage where the preferred route was not selected. I am not an ecologist, but certainly the consultants were well aware of the issues that they needed to deal with in terms of the ecological and other constraints on them and have taken all those into account.

The Department is available to meet the consultants and the local authority at any stage to provide whatever advice and assistance it can.

Deputy Noel Grealish

I thank Mr. Fitzgerald. How many meetings has the Department had with Arup on the current project? Galway is a special area of conservation, SAC, and there are many areas designated as SACs when one goes from one end of the city to the other. I would be very disappointed and shocked to learn that there had been only one meeting.

Mr. John Fitzgerald

I was at one meeting. I do not know how many meetings were held on the ground with local staff. I can certainly find that out and I can pass the information on to the Deputy.

Deputy Danny Healy-Rae

I am a bit out of my jurisdiction when I am talking about Galway. I know that a lot of what is happening there is happening and has happened in relation to the Macroom bypass and other infrastructural projects in County Kerry.

Surely the people who pay motor tax, and that is the people of Galway, and west Galway in this case, are entitled to a proper safe road when going back and forth in their daily lives. I cannot understand the reason that the many bodies who are charged with looking after the interests of people cannot sort out the provision of a road for the people. I am referring to bodies such as An Bord Pleanála, the National Parks and Wildlife Service, the local authority, Transport Infrastructure Ireland, TII, and Inland Fisheries Ireland. Should it not be the business of the local authority, Galway County Council, TII or the Department of Transport, Tourism and Sport to sort out how best the road could be built, first for the safety of the people and as a secondary consideration to the best of their ability to mind the pearl mussel or any other species of importance. Surely it should be left up to the people who are building the road to deal with secondary considerations.

I have built roads within 30 metres of the pearl mussel and we did not damage the species. I know all about filtration and silt ponds and all that goes with dealing with sensitive areas in dry weather. That should not be the business of the National Parks and Wildlife Service at all, it should be the business of the people building the road. The Department should keep its nose out of it. I welcome the representatives from the National Parks and Wildlife Service, but I cannot see that it has a role to play in the building of the road. It should be up to the people who are doing it, such as the local authority staff, to deal with matters arising. There is a proper method of building the road and if they do not comply with that, it is the role of the NPWS to get stuck into them if they do damage to the pearl water mussel or to any other species. Once they have followed the plan to the best of their ability, it should not be the business of the NPWS to focus on the method statement or to see how they would do the work. There is a way to proceed and we should let them at it. If they do not comply, that is the time to step in. It should be the body that is building the road that must comply with method statements. It is a matter between them and the contractor.

As Deputy Grealish states, there is a road already. It is not interfering with the pearl water mussel. The people in Europe had no say in it. The people did their best and had to provide a road to get to their homes, villages and towns. They need to be able to go to Galway city. People always did their best.

Whether we realise it or not, the landowners and people living in an area, take pride in their place and do not try to damage it by just wanting to live in the place. They always take pride in their place. One can see evidence of that in all local communities, be it the Tidy Towns committee or other community development organisations. People have pride in their place. I am asking the witnesses to stay out of it and let the people who are building the road do the work but have somebody checking that the work is being done according to plans. As a nation we should have one objective, namely, the road must be built because the people need a road that is built to a standard to prevent fatalities. I appeal that they be allowed to go ahead with this project.

Let me outline what will happen if this project is held up. The Macroom bypass was of significant importance to the people of County Kerry. The project was held up when we had money by people protecting a snail. Now we do not have money and we have our hand out and the objectors have gone to ground. Now we cannot get the money to build the road. That is what will happen in this case as well.

Mr. John Fitzgerald

I fully agree with the Deputy. The Department and the National Parks and Wildlife Service have no issue with the Deputy's statement and we fully support the statement that everybody is entitled to a safe road and that people are entitled to proper transport corridors for business, farming, school children, shopping, community and recreational purposes, and tourism.

The Deputy has focused on our role, a role we have been given under statute. Under the planning and development legislation, our Department is a statutory consultee. Projects are sent to the Department for comment because we have a role in various areas, such as nature conservation and also in respect of archaeological and architectural issues under the planning legislation. That is why they are sent to us. We are fulfilling our duty. We try to provide information to the relevant decision makers, which we are not. Let me stress again, that we do not stop roads. We give our views and it is up to the competent authority, be it Galway County Council, TII or An Bord Pleanála to make those decisions. I do not think we could say: "Just build the road and then we will look at the nature conservation issues afterwards and try to rectify them." First, a habitat or a species may have already been badly affected but also trying to retrofit can be more costly and less efficient than trying to get it right with all elements in the first instance.

Chairman

What would be the consequences for the Department it if were not to fulfil its statutory obligations? What would the European Commission do if the Department were not to fulfil its obligations?

Mr. John Fitzgerald

There would be two outcomes. First, we would be in danger of losing important habitats and species which have their own intrinsic value. That value is a value to Ireland. If Ireland is found to be in breach of directives, and we were found to be on the wrong side of the European Court of Justice before and we have been threatened with fines. We have managed so far to keep away from that. Very large fines can be imposed, both once-off fines and followed up by daily fines.

Chairman

Will Mr. Fitzgerald give a rough idea of the sums involved?

Mr. John Fitzgerald

It runs well into millions of euro.

Deputy Éamon Ó Cuív

We have been in the European Union since 1973. I understand the habitats directive came into force in 1997. We are now marking almost 20 years of the habitats directive.

Is Mr. Fitzgerald saying that fines imposed on Ireland in that time are nil?

Mr. John Fitzgerald

In relation to nature directives, nil, yes, because we have managed to stay onside.

Deputy Éamon Ó Cuív

Even if it-----

Chairman

In fairness-----

Deputy Éamon Ó Cuív

Suppose it runs to €10 million, for argument's sake-----

Chairman

The Deputy has had his ten minutes and I have not taken any time as of yet. The Deputy will have ten minutes shortly. We just need to do this fairly. That is all. The question then comes down to leeway. So in other words, the question could be that if Ireland is implementing these rules in a too-strict fashion, is there leeway? Senator Ó Clochartaigh mentioned leeway earlier on and the possibilities of using special cases to overcome the legal parameters under which we can build these roads. Mr. Fitzgerald mentioned this road could have the status that would allow for it to be a special case. What would be the process to achieve that special case? If we are implementing it too strictly, what level of leeway is there and how do we make this a special case?

Mr. John Fitzgerald

First, I do not think we are operating it too strictly and I will let me colleague come in on that if he wishes. We are operating as best we can within the law. Ireland has been brought, perhaps proportionately more than many other countries in Europe, as far as the European Court of Justice a number of times. This is not something that would suggest we are being too strict. If anything, I think there might be a concern in Europe that we are not being strict enough in certain cases.

There is a process for using imperative reasons for overriding public interest, IROPI. It would be a matter for, in this instance Galway County Council, to resubmit an application to An Bord Pleanála to suggest that it wishes to go ahead with this process. An Bord Pleanála would then carry out an appropriate assessment and determine it is not possible to proceed with the project under Article 6(3) of the habitats directive, which is to conduct the process without causing significant damage. If Galway County Council then wished to proceed, under Article 6(4) of the directive the council could then make that proposal and there would be discussions with us to consider compensatory measures. An Bord Pleanála would have to satisfy itself that there were imperative reasons of overriding public importance. That would be a matter for the board. I presume it would make those with Transport Infrastructure Ireland, TII, and the Department of Transport, Tourism and Sport. Once compensatory measures were agreed with us, we would give whatever advice and assistance we could to the local authority. The matter would then go to the Minister for Housing, Planning, Community and Local Government, who would then consult with the Minister for Arts, Heritage, Regional, Rural and Gaeltacht Affairs and then that decision could be made. We are then required to notify the European Commission that we have done this. If there is priority habitat, then we are required to get the approval of the European Commission.

Chairman

What kind of timescale would that take?

Mr. John Fitzgerald

We do not know. We have never been through one of these in Ireland.

Chairman

The other issue that seems to me to be quite unusual and shocking is that although there obviously is phenomenal pressure and necessity for this road, Mr. Fitzgerald can only respond to a method statement that is developed by Galway County Council and yet that council has not provided all these method statements. To a certain extent, we could be here until kingdom come but unless Galway County Council provides a method statement, Mr. Fitzgerald can neither reject nor support it. That is a blockage in its own right.

Mr. John Fitzgerald

It is, but I hope that because of recent engagements with the local authority and the way we are working together and dealing with this section by section, rather than the whole project being held up, we should be able to progress the easiest parts first while working in tandem on the more difficult sections.

Chairman

At the current pace, what is Mr. Fitzgerald's estimated time of completion of this project?

Mr. John Fitzgerald

Honestly, I do not know.

Chairman

An estimate is always possible.

Mr. John Fitzgerald

In this instance, the people in Galway would be better able to answer that because they are the ones who will be designing the road and deciding on which sections of the road they want to go ahead and when. They will consult with us on nature conservation issues but we do not have a role in terms of scheduling construction. It simply is not what we do.

Chairman

Would Deputy Ó Cuív like to take five minutes?

Deputy Éamon Ó Cuív

I understand - and we discussed with Mr. Fitzgerald - the possibility of route B from Derrylea to Maam Cross. In that case, there might be a clear case that the bog would be damaged and compensatory measures would be required. That is very black and white. If I understand correctly, the issue between Oughterard and Bunakill is different. The issue is that were the road to be built properly, it actually would be better for the pearl mussel because unlike the current position where everything that comes off the road - such as bits of tyres, debris from wear and tear and silt - goes straight into drains and rivers, there would be these silt ponds and so on and cleaner waters would be delivered into the rivers.

My understanding is the challenge is to build the road without damage and that so doing is not that difficult. The problem is to build a road and be absolutely sure, no matter what weather circumstances arise, that there would be no damage and to prove that beforehand. My understanding is the European Union has put in a test with an incredibly high standard, when human realities are taken into account, with a view to eliminating the damage. If one followed that test sitting in one's car going home this evening, one would not drive home because one could not pass the test because one could not be sure of arriving home safely. One would do nothing. One would not get up in the morning and nor would one stay in bed because one might die in bed. One just would not move.

My question is very simple. Supposing all reasonable precautions were taken to minimise the risk, supposing the road was built and supposing there was no damage, which would be very likely if all reasonable precautions were taken but one did not adhere to this ridiculous test, what could the European Union do then? I can see a situation where somebody would get killed on that road because of the condition of the road. Then we will have decided that a very minor risk in the short term to the pearl mussel during construction, but not the long term in which we know the situation will be better, was more important than a person's life. That insignificant risk is more important than people's lives because of the impossible test Europe has put in place. I live in Connemara. Give me a choice of a person's life over an insignificant risk to a pearl mussel and I will take a person's life any day of the week. It is time that we start asking ourselves some hard questions.

I have been hearing for years about this grave terror of Europe in court, but as Mr. Fitzgerald said himself, Ireland has never been fined. Although they keep threatening fire and brimstone, it seems to me that they do not act, and even if they were to issue a fine, Mr. Fitzgerald has admitted it would be totally insignificant. We must start deciding the balance between people and the environment, as we were doing for hundreds of years, when we preserved our environment and they destroyed their environment. I think when we did it for ourselves, we were doing fine and the evidence is there all over the country. It is in Connemara in particular, with the amount of SACs we have where the people preserve nature. A lot of the threats to nature we now face in Connemara threaten the pearl mussel much more significantly than the possible risk from a once-off building of a road, including policies followed by the State on the usage of the lake.

I also am told, for example, that what is killing the curlews is not the cutting of hedges but the mink species, which was introduced into Ireland and is running totally amok. They are on the islands where the curlews used to nest and are now destroying it. We always seem to be chasing the wrong problem. We seem not to listen to the people on the ground who have intimate knowledge of nature, who preserve that nature and care for that nature, the lakes, the rivers and the land. It is time that we started making hard decisions as to where the interests of the people lie and taking our chances with Europe. If the road was built, I am sure Mr. Fitzgerald is going to tell me that they could not take any case because no damage would have been caused to the habitat.

Senator Trevor Ó Clochartaigh

To come back to the current logjam with Galway County Council, it is important to note, and we are all aware, that there was a significant bereavement in Galway County Council involving a director of services who was dealing with these issues. Our thoughts go to his family and his colleagues. Has that had an impact on the project moving forward? Is that one of the reasons for the logjam? If not, what reasons has Galway County Council given Mr. Fitzgerald for the delay? Is the delay due to a lack of staffing and expertise in Galway County Council or too great a workload? Has the council farmed out the work to consultants? Is the problem the lack of consultants or that the consultants are not returning the material quickly enough? Has Galway County Council given Mr. Fitzgerald an explanation on that? Can he shed any light on it?

On the imperative reasons of overriding public interest, IROPI, scenario, Mr. Fitzgerald works with his counterparts across all the member states of the European Union. My understanding is that IROPI is used extensively in countries such as Portugal, Spain, Italy and Germany. I have looked at quite a number of projects that have been brought forward. They include roads and electricity projects, shopping centres and other projects, yet this country has not put forward one IROPI project. Why are we afraid of putting forward an IROPI case? The section from Maam to Clifden would be an ideal scenario in which to try that and we should just get on with it rather than "faffing" around as is happening now. What is Mr. Fitzgerald's sense of it from dealing with his counterparts who do similar work across Europe?

Also, are there other member states with significant populations of the freshwater pearl mussel? Have they encountered similar issues and, if so, did they come up with any solutions as to how to progress projects of major importance?

Mr. John Fitzgerald

My colleague, Ciaran O'Keeffe, will reply on the pearl mussel and perhaps issues regarding the curlew.

With regard to the bereavement in Galway, and our thoughts go out to Liam's family, that is not the problem as I understand it. I do not believe the delay is due to a lack of staffing. Galway County Council is trying to get the engineers it has on board to prepare this method statement. It may not have been part of the initial contract it had with its consultants to do a particular method statement for this section of the road on its own. I think it is more a contractual and procurement issue that it is involved in, and I know it is working actively on it.

With regard to IROPI, it is a good question. It might be that there is a concern on behalf of organisations that they do not where it will go or how long it will take. There is a potential IROPI in Galway in the case of Galway Port. We have had meetings with Galway Port and An Bord Pleanála to see how we can work together at this stage on an informal basis to determine the compensatory measures so that when it reaches the decision making stage, all of us will be signed up to it.

I do not believe it is extremely important. I am aware it has happened in other countries. As mentioned, there were some cases in Spain and Portugal but they are not common. There are a number of tests one has to take to prove that the issues are of public importance as opposed to private importance, and there have to be no alternatives. It strikes us that there could well be a case made in regard to parts of the N59. It would not be for us to decide that. We could get involved in discussions on compensatory habitat and so on but it would be a matter for the developer and also the decision maker, which would be the board.

Senator Trevor Ó Clochartaigh

To clarify, my recollection from reading the relevant European Union information is that there are at least scores of cases in countries. We are not talking about one or two in the entire country. From what I recall, there were over 70 cases some years ago in Portugal. We do not have an Irish precedent but there are precedents across the EU that can be compared, in some sense, to what is happening here. There seems to be a reticence in Ireland to go down that route whereas other countries do not seem to have a problem doing that. They do not seem to have any problem getting the designation either.

Chairman

Would Dr. O'Keeffe like to respond to any of the questions?

Dr. Ciarán O'Keeffe

Ultimately, we can find a solution to this which provides the road, which is what everybody wants and which we fully feel the need for ourselves as well as doing the necessary level of environmental protection. It is achievable.

Deputy Éamon Ó Cuív

At what cost to human life though? At what risk to human life? That is the problem. We might find a solution, but how many deaths will occur in the meantime? What is the risk of a death on the road compared to a risk to a pearl mussel? If a good method statement is put in, we will get on with it but it seems that what the Department is telling us is that it wants no risk to the pearl mussel, no matter what happens in terms of unusual rain events and whatever, compared to a high risk every day on that road to human beings. The Department needs to have an index of risk to human beings versus an index of risk to the habitat, with some balance between the two. If Europe wants to be stupid, we should just go ahead and build the road and let them come after us. When the road is built and there is no damage done and it is better than the first one, it will have no case against the Department. We need to have a bit of courage and get on with the job. I am not talking about doing that without preparation, planning and a reasonable approach to building the road. This planning permission was granted three years ago-----

Mr. John Fitzgerald

December 2013.

Deputy Éamon Ó Cuív

-----so it will be four years this year, and not one inch of the road has been improved. In fact, it has deteriorated disgracefully in the meantime. Dr. O'Keeffe might remember the time we paid the farmers for the sheep we took off the hills. They were getting very worried about it. I said we have paid them and we will worry about that again. It took Europe five years to approve it. It approved it retrospectively but if it had fined us, so what. If we are spending €58 billion a year, a fine of €2 million is not significant in the greater scheme of things if it is unavoidable and a lesser evil in terms of getting the job done.

The message has to be got across that the people have had enough, particularly in areas like Connemara where there are special areas of conservation, SACs, all over the place and where many people believe they cannot do anything to preserve the right to live in Connemara, the culture and the language of Connemara, all of the human aspects which are much more scarce. If we had SACs for linguistics, Connemara would be a quadruple A priority habitat because there is no Irish language in any other country as a community language anywhere in the world. There are pearl mussels in other places.

If we are really concerned about heritage and all these issues, and I am deeply concerned about them - I would not be in Connemara if I was not concerned about them - the human, linguistic, heritage and community interest trumps zero risk to the pearl mussel from some unusual weather event only during the building phase. As I pointed out, if the road was built it would be far superior in terms of the run-off compared to the road in its present state. We need to get that message across strongly to the authorities.

Ba mhaith liom míle buíochas a ghabháil leis na finnéithe as a gcuid eolais agus a gcuid fianaise. Is léir an fadhb atá ann, go bhfuil an tír seo ag iarraidh bheith ar an mbuachaill is fearr san Eoraip, i mo thuairim, i rudaí mar sin. Gabhaim míle buíochas libh as teacht isteach agus go n-éirí go geal libh.

The joint committee adjourned at 11 a.m. until 2.15 p.m. on Wednesday, 1 February 2017.