Have money or license

In a new twist in the Saga of the Poolbeg Incinerator, Dublin City Council will buy a stretch of foreshore so that a foreshore license is redundant (see below). The Indo is not impressed with the Minister. See also Times.

According to the newspapers, there is apparently a choice between having a license and having enough money to not need a license. (In this case, it is of course taxpayer’s money.) UPDATE: The resident expert tells me that CPO simplifies the foreshore license application as it removes the third party, but it does NOT obviate the need for a license.

By the way, while the Minister has not been behaving at his best over the course of this Saga, the delay in the foreshore license is not extraordinary: It often takes very long to get one. That is a problem, but a different one.

UPDATE2: Paul Melia writes: “A foreshore licence is needed as part of permission to build any development on the coastline. A local authority does not require one if it owns the land.” I read through the Foreshore Act 1933 and its amendments and cannot find any support for the second claim. Would be grateful if someone could correct me.

32 thoughts on “Have money or license”

  1. There is something profoundly stupid that the ONLY active industrial area in the State is at the furthest point one can get into the biggest city. They should be turning this area into a pure amenity that would bookend the Phoenix Park with a ribbon connecting the two by the river and the two banks.

  2. The use by a local authority of public powers to further a private development raises significant issues of constitutionality and competition. For me it is beggaring belief the lengths that Dublin City Council is going to over this project, the amount of public money it is spending on it and the risk it is taking on on behalf of rate payers and other contributors to its budget.

    The IT reports that Covanta will be picking up the tab for the CPO. It is hard to see where Covanta ends and DCC begins in this project.

  3. The Irish Indo editorial is disingenuous. It attempts to link the illegal dumping in the North with the lack of an incinerator. This is wrong. The illegal dumping would have happened regardless.

    The editorial also presented the CPO as a fait accompli, but DCC are a long way from pulling this off since An Bord Pleanala will have to rule and the decisions of both DCC and ABP can be judicially reviewed. The outcome is far from certain.

    There is an interesting asymmetry at play here. The politicians who oppose the incinerator are subject to an intense PR campaign by the promoters and it seems that their political careers will be damaged if they fail to stop the project.

    On the other hand the officials in DCC who are promoting the project are insulated from any consequences of failure. If the incinerator ends up costing DCC money through the put or pay clause there will be no consequences for anyone in DCC. In fact I would challenge anyone to name any of the officials involved.

    Has anyone been held responsible for the costly consequences of the Nurendale decision? No. In fact no lesson has been learned since DCC continues to plough on regardless exposing itself to massive risk.

    We have seen what can happen when faceless bureaucrats can take decisions in secret to further private interests with no consequences to them for failure. Why do we continue to let this happen?

  4. It also highlights a failure of politics

    Brian Cowen for the complete absence of leadership

    John Gormley for not removing himself from the process
    -H?e could complain alot more then, as opposed to look dodgy at present

    Local TD’s and Councillors for making hay at all opportunities

    Nimbyism wearing a green jacket….

  5. It seems strange to me that a local authority can CPO a plot of ground to benefit a private operator constructing a private facility which will make private profits. CPOs for roads, railways and public spaces are known. Indeed, it has even been known for local authorities to ostensibly CPO lands for public purposes only to “change their mind” after the CPO and then sell it back to their preferred private operator.

    Is the City Council behaving as a developer rather than as a local authority? I expect the City Council will retain ownership of the CPO’d plot. However, it appears that the purpose of the CPO is to facilitate private development.

    Has the contract betweeen Dublin City Council and Covanta been made public so we can assess the nature and extent of the private involvement?

  6. BTW, whoever owns the land should chirp up pretty quickly. The land may have a substantially increased value in the circumstances as the CPO process recognised the additional value attributable to ransom strips.

  7. @Antoin
    Indeed. Neither Melia nor Mitchell bothered to check the applicable law. They still need a foreshore license.

    It may be that the current land owner (Dublin Port Company) does not cooperate with Dublin City Council, or this may be a move to keep the story alive in the media.

  8. @Richard

    More to the point, has Dublin CIty Council checked the applicable law? The report in the Times is spun as Dublin being forced to use CPO because of a delay in the licence. If a licence is required regardless then is Dublin making another costly error?

  9. It’s very difficult to figure out from the news reports what is actually proposed, and how it differs from earlier plans.

    According to at least one report, the area to be put under CPO is to be used for construction of a cooling plant, but no explanation is given as to why it is not needed for the cooling plant if the foreshore license is granted. I find it hard to imagine why it would be necessary to acquire an area greater than a square kilometer if it is not mostly for construction of the plant.

    It’s not clear from the reports exactly why the foreshore license is required, so it’s hard to tell whether purchasing access to the Liffey might make a difference. Is it possible, for example, that the existing plan is to do something that involvs developing the bed of the tidal Liffey in some way (which would clearly require a foreshore license), and that this new proposal involves putting the development entirely on land (maybe with pipes to the quay wall), which perhaps might allow the need for a foreshore license to be avoided?

    And if material changes to the plans are proposed, does this have implications for planning approvals?

    There are contradictory reports about whether most or none of the land subject to CPO belongs to Dublin Port.

  10. The license is to transport cooling water across the foreshore from the plant to the sea.

    Rumour has, there is a coolant discharge channel already, and DCC is CPOing that in the hope of stretching the existing license.

  11. My recollection of the press reports of some weeks ago, when this CPO was first mentioned, is that the CPO would allow plant to be developed now, rather than waiting for the foreshore licence. That would reduce the time required to get the incinerator into action, but would not remove the need for a licence.

    My recollection may be imperfect.

    Incidentally, I did once point out that the incinerator could be supplied by water, thus making it much more environmentally friendly and reducing the burden of road traffic through the area.

    bjg

  12. @bjg
    The facility will predominantly be accepting municipal waste collected in trucks by DCC with dublin city. These trucks would then have to travell to a transfer station and the waste unloaded and reloaded or direclty board a boat. It’s a logistical nightmare and not a viable option. The DCC waste collection operators work a 3.5 hour day so boarding boats would mean significant overtime.
    This is the only reason such a expensive site makes sense for DCC.

  13. “It is hard to see where Covanta ends and DCC begins in this project.”

    That’s probably why it’s referred to as a “joint venture”. I find the arguments about competition in this matter tiresome. Waste disposal siting is always going to be a matter where government, not private industry, ultimately decides the options available – waste haulers then get to pick from those.

    Ireland gets the weirdest notions about where and when and how to have competition – it will have Bus Eireann cut Iarnrod Eireann’s throat rather than have Deutsche Bahn or SNCF allowed open access to the railways, or propose that *terminals* compete with each other (for a while anyway) rather than airports. It will sink billions into dead banks (and thereby skewing competition against institutions that didn’t screw up) rather than create the conditions where the likes of Santander or Scotiabank could come in and open new, well capitalised ones.

    The thing about Gormley is that he is attempting to demonstrate that Ministers have powers of themselves rather than as a rubber stamp for his Department and the Dept of the Taoiseach. In a way, even though I disagree with his dogmatic stance on the issue, it’s a little bit charming really. One gets the impression he has never seen Yes Minister…

  14. @Mark

    Tiresome or not, there is a real issue here. Dublin City Council is both waste regulator and JV partner in the project and so has a conflict of interest. One imagines that CPO powers are to be used at least for the public good and constitutionally and not for the commercial interests of a JV partner who just so happens to have those powers.

    How can there be a level playing field in terms of market competition if a public authority can use its powers to advance a commercial agenda for one of its partners?

    This is essentially what happened in the Nurendale case and the local authorities were found to have acted illegally in that instance.

  15. The greens have shown their true colours recently:

    1. Contempt for rule of law over foreshore licence.
    2. ESB customers to pay levy to pay for increased C02 producing peat generated electricity.

    This country is beset by weak government. Any government of any standing could surely face down a vocal minority over a local issue like an incinerator but we have the PR electoral system…

  16. @ Ciaran Daly
    ”Any government of any standing could surely face down a vocal minority over a local issue like an incinerator but we have the PR electoral system…”

    I am concerned that the terms of this contract are extremely favourable to Covanta.
    Dublin City Council do not have the right to control where waste goes and private operators are allowed compete within the Dublin City area for the waste.
    We know the contract includes a clause whereby DCC have to pay for a minimum of 320,000 tonnes per annum.

    Is it not concievable that DCC will be outcompeted within the area in which they collect waste (just as nearly every local authority in the country has) and that all Dublin City rate payers, and indeed all taxpayers through the Dept of Env. direct funding, will end up paying for this 350,000 tonnes per annum without DCC supplying the waste for 25 years.

    Of course this contract might be a great deal (we don’t know the figures) and DCC could compete successfully against the competition as a result.

    But my concern is a legitimate one, and relates fears of excessive costs and taxes for the whole nation, and not a ‘local issue’ as you say.

    As I said before I have suspicions about this contract because it was signed back in 2007
    -when projected waste growth was grossly overestimated
    -when public sector labour costs were sky high
    -when DCC thought they had a monopoly on Dublin’s waste
    -when landfill gate fees were twice what they are now
    -when the epa had not yet defined the ‘pre-treatment of MSW prior to landfill’
    -when DCC’s coffers were flush with development charges
    -when we had nearly full employment and rapidly rise wages (so no benefit to more labour intensive disposal methods)
    -before the consequences of nationalising private sector risk was fully understood

    How can you say a public body committing to spend 320million +€ XXx,XXX,XXX,XXX per year is not an issue that might concern more than just a few NIMBY greens?

  17. @Lynn
    here,here

    The middle aged DCC managers will not suffer one iota if DCC loses its shirt on this deal, they will still enjoy there ludicrous pay and pensions. And Covanta are not taking on any risk at all.

    If there is no market for other waste disposal outlets being built right now (such as the INDAVER incinerator in Meath) then all this risk is on those companies and not on our heads.

  18. Lynn, you don’t see anything wrong with a public body breaking a contract? The enforcement of private contracts is one of the most fundamental duties of government in a free society. The incinerator has all the lawfully required consents, including planning permission.

  19. “How can you say a public body committing to spend 320million +€ XXx,XXX,XXX,XXX per year is not an issue that might concern more than just a few NIMBY greens?”

    I said nothing about value for money, given that the contract is signed we might as well get something in return rather than just lose all the cash. No doubt since you’re so concerned about public spending, spend time on every single public spending project of the State, let’s start with public services, the banks etc etc…

  20. @Ciaran,
    I’m very concerned about waste of money in all sorts of public spending projects, services and the banks etc. But I don’t have as much expertise on those issues compared to other contributors on this blog. I spend time reading these issues but only sometimes have something to contribute myself.

    I admit it’s a difficult one with regard breaking the contract. We would of course have to buy Covanta off.
    Perhaps if we throw Covanta 50m they might go away kindly before they start spending big money. Sometimes you have to cut your losses.

  21. @Richard,
    Looks like you may be mostly right about the existing outlet. The area to be subjected to CPO is mapped out in today’s Irish Times, and it looks from satellite imagery on Google as if it covers part of a channel already carrying a substantial outflow of water from somewhere, along with some adjacent land. (The 1.7sq km quoted by the IT yesterday looks wrong by some orders of magnitude.)

    To me, it looks as if the discharge is into the river rather than the sea, but I don’t know how the boundary between the two is defined.

    It’s not obvious to me that there would be any foreshore development involved (although, as they say in the US, IANAL). The channel seems to probably lie above high tide level, so it is probably not carrying water across the foreshore. It’s not obvious that any development would be required on or above the bed of the Liffey, which is foreshore.

  22. @Con
    Thanks for that. In principle, the foreshore is all land between high and low tide; but in practice, the foreshore is what the Ordnance Survey says it is. The channel is clearly artificial, and OSI may not have included it in the foreshore (my OSI map of Dublin is at home).

    Google Earth has a clear view, and two pics on Panoramia.

  23. One other possible interpretation of the CPO is as follows. Where the original plan seems to have involved using that existing outflow channel, the CPO includes a strip of land beside the channel running from the incinerator site to the Liffey wall. The strip varies in width between (it looks like) about 10m and 20m. It might be wide enough to accomodate a new outflow pipe, reaching the Liffey directly beside the existing outflow.

  24. @con

    Interesting about possible re-routing of the outflow pipe, but that would still require planning permission and a new EIA?

  25. @Paul,
    I presume that An Bord Pleanala would approve any planning permission required if they were prepared to allow a CPO. I have no expertise in requirements for EIAs, but I find it hard to construct a reasonable argument that the impact would be materially different from that already approved.

  26. @Richard

    The pipe carries a lot more than warm water. It is loaded with biocides which have a detrimental affect on the estuary including any Liffey salmon swimming past.


    J&V

  27. @Joe & Valerie
    The biocides should be part of the EPA license. If I understand correctly, they initially planned to lead the cooling water south to Dublin Bay and now plan to send it north to the Liffey. I’m not sure that this invalidates (part of) the EPA license.

    To An Bord Pleanala, though, this is a pipe with warm water. No contact with humans. No danger of explosion. No terrorist target. Even in the case of a major leak, the load of biocides would probably not cause major damages, because they want to prevent growth not kill weeds.

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