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PART 5

Mr. Finlay said that they would like to focus on what they had been discussing with the

Council since their previous visit and said that arising from the Inspector's comment then

they had focussed on two issues. He said that the first issue was the costing of a bridge

over the M3 at Newalls and some traffic calming issues at Leshamstown Lane. He said

they were given sight of an outline sketch of a bridge but were told that it was

questionable if a two-lane road could be put in, due to the limitations of the CPO on the

He said most of the discussions and communications with the Council had been about the

Leshamstown Lane issue and they had received certain documentation in the past week

which was an outline of what might be possible. He said that in fairness to the Council

officials who were trying to assist them in resolving the crux, the documentation was not

a definitive view by the Council but he said that it would be a sort of a carving up of

Leshamstown Lane in such a way that it might be able to accommodate the diverted

traffic from the Drumree Road after the road was severed. He said the proposals were to

have entrance ramps at the Drumree and Dunsany ends of the Lane with eight further

ramps spaced out along the Lane and with lighting at each ramp and that there would be

Mr. Finlay said that at a meeting attended by over 100 residents of Leshamstown and the

surrounding Drumree areas on the previous Monday there was shock and horror at what

was being proposed as these proposals were a sort of mini-urbanisation in a rural setting.

He said while they might be suitable in a suburb of Dublin the residents did not see this

as something that should be tried out on their locality. He said they could not accept what

was the result of bad planning and a lack of consideration and said that the EIS made

virtually no mention of the impact this would have on their lives. He said the decision to

sever the road had severed a community and split a parish from its hinterland. Mr. Finlay

said that the Council were saying that they were going to force traffic up Leshamstown

Lane however difficult that was over 800 yards but were not going to give them a bridge

He said that the people at the meeting were up in arms about what was being proposed by

the Council, that they had not opposed the M3 proposal, they had not opposed the

sewerage works and they had not opposed the roundabouts which would flyover the M3.

He said that if the Council thought the residents would accept a motorway in their back

gardens and a mini-O'Connell Street along their road, they had better think again. He said

they felt it was up to the Council to resolve the issue of how they were going to take the

Mr. Finlay said the traffic in their area was made up of people coming home from

Dunshaughlin through Batterstown to avoid the traffic jams in Dunshaughlin; people

from Trim used their road and locals who lived in Drumree Village used it. He said these

were three separate groups who used the Drumree Road and the new feeder link would

motorway. He said there was no need for the people living around the Drumree area for

this link road as it was too much of a roundabout journey for people to use it as they

could be faced with bottlenecks coming across the motorway . He said that it would only

be the people from Trim that would use it and that it was a waste going ahead with a road

He said that if it was a farmer who had land on both sides of the motorway he would be

given an overpass and they as residents should get the same treatment when they wanted

to stay in contact with their mother town, Dunshaughlin. Mr. Finlay said they were

annoyed that sufficient land was not kept in the CPO to allow this bridge to be built and

he said they felt this was done deliberately so that there could not be a case made to have

a bridge built there in the future. He said that even if the bridge was only wide enough to

take one car at a time this would be only over 100 yards, when the Council were sending

them down 800 yards over a single lane road. Mr. Finlay said they hoped the Inspector

would take on board the unfairness of what had happened and said they were not asking

for the M3 to be stopped but were asking that the 100 yard span be kept open to keep

their communities alive. The Inspector said the points they had made would be taken into

Mr. Finlay asked if they could engage with the Council in open debate at the Hearing on

some of their concerns and the Inspector said that, while there was nothing to prevent

them from having further discussions with the Council, they had been given a second

opportunity to make a submission and the Hearing was not going to become a mediation

forum at this stage for this matter. Mr. Murphy asked if the Council could give the

reasons why the bridge could not be put in and Mr. Keane said they would write to

accommodation works which he said was of concern to some of his Clients and said he

accepted the Council had some difficulties because of the nature of their proposal and

with some aspects being left to the contractor to design, but said he thought there should

be some degree of precision as to how mitigation works were to be included and that

these should be given to the Hearing so there would be some degree of certainty on what

formed part of the scheme. The Inspector intervened and said that the precise details of

accommodation works were not an issue for An Bord to decide on, but said that he

accepted there could be some more certainty in relation to what could be regarded as the

residential aspects of the frontage proposed to be acquired. He said this was part of the

Mr. O'Donnell said that in relation to the case of Mr. & Mrs. Peters, the Council had

fairly accepted the impact would be severe since the house would be located within 50

metres of the boundary of the works and said that, while this was not the actual

motorway, there would be severe disruption during construction for his Clients, and he

suggested this would almost make it impossible for them to live in their house for the

period while the road was being constructed. He said the house had been laid out to a

very high standard but that it was now going to be very susceptible to the road intrusion,

particularly from traffic noise, since the living rooms and bedrooms were at the front of

construction when the impact of dust and noise would be very significant, or for the

operation of the road when noise levels would be a major intrusion on their quality of life

He said that he was not going to review the evidence given about the noise impact but

said that the appropriate levels were those imposed by the Council itself, by An Bord and

substantial stone wall should be included as a condition to mitigate the impact of noise,

dust and visual intrusion along the full frontage and said this should be constructed before

work commenced on the road development. He said that the landscaping works should be

time limited so that they were completed within the planting season after commencement

of the works so these could be in place to mitigate the impact on the house. He said that,

without meaning to be facetious, if a badger sett or bat colony were as close to the route

as the Peters house was then it was likely the route would have been moved and he said

the Peters were entitled to get at least the same degree of consideration and protection

Mr. O' Donnell the referred to the Tara Stud situation and said the Council witnesses

had also fairly acknowledged the major impacts there would be on the operations of the

stud which would seriously undermine its ability to continue since it was effectively

losing one third of its land between the 100 acres severed, the 70 acres taken and the

lands sterilised by being in close proximity to the motorway. He said that Mr. Osbourne

had acknowledged the status of the stud as a nationally important stud farm and Mr.

Bergin had given the example of the National Stud where there had been a bunding with

a wall and appropriate planting of mature trees provided along the full length of the

boundary. He submitted that a stone wall constructed along the full length of the

motorway should be required as a mitigation measure in the Tara Stud situation and said

that this would go towards mitigating the traffic noise and general construction impacts

He said that in the case of the Swans, both Mr. Osbourne and Mr. Guthrie had fairly

motorway would have an impact on the proposed house and stable block. He accepted the

issue was primarily one of compensation but said the impact would appear to be very

Mr. O'Donnell said that in terms of the McCarthy lands at Garlow Cross the impact on

that property was similar to that in the Peters case as the road would come very close to

their house but there was the addition of a major interchange being located in close

proximity. He said the construction works associated with the interchange would have

major negative impact on the house during both construction and operation and he

submitted that appropriate mitigation measures should be required to limit and, if

possible, eliminate those impacts. He said that the light pollution would have a serious

impact on the McCarthy lands at night and said that regard should be had to this in terms

of the amenity of the McCarthy family home and also on his stud farming operations.

Mr. O'Donnell said he was hopeful that some of the difficulties identified in the case of

Betty Newman Maguire could be resolved by the Council and that they might be able to

indicate before the end of the Hearing some proposals that might deal with some of her

concerns. He said that in the event that this was not possible, he submitted that her

requirements were reasonable, particularly her request that appropriate landscaping

would be carried out along both the new county road and along the embankments to the

proposed motorway and that appropriate noise mitigation measures be included on the

bridge. He suggested that these should include installing porous asphalt to reduce the

Mr. O'Donnell then made an application for his Clients costs of the Hearing and said that

he was aware of the Inspector's position of this not being a matter for him to deal with,

but said he simply have it recorded that the application was made as none of the

submissions were frivolous and he suggested they might have provided some assistance

Mr. O'Donnell commenced by saying that there was something unbelieveable about the

entire proposal for the Dunshaughlin to Navan Section since if you said to someone who

had no particular knowledge of the area that the Council and the NRA were proposing to

build a tolled motorway that crossed an internationally important river at a crossing point

where that internationally important river, the Boyne, and a similarly important river, the

Skreen, converged, they would find that extremely surprising. He said if you told them

the river system had species protected under the Habitats Directive and was a proposed

SAC and a major spawning ground for salmon, they would be amazed. He said that if

you then said that this immediately adjoined the lands of Dalgan Park, which had been

acknowledged as a landscape of outstanding beauty, with trees specifically protected by

the Council and used as a public park, it would be almost unbelieveable. He said that if

you then were told of the major educational and pastoral facilities, the retirement home

for old people and the range of facilities which would be adversely impacted in a major

way by noise, construction impacts, traffic, it would be scarcely believeable that this

Mr. O'Donnell said that, as if that was not bad enough, on the other side of the lands was

a world famous site for archaeological reasons that the Council through Ms Gowan

accept the road would have a profound impact on and he said that, when all of that was

put together, this Dunshaughlin to Navan Section was all about the impact the road would

have on this "landscape" and he said he used the word "landscape" metaphorically for all

that was contained within it. He said there was the archaeology which was clearly an

international issue as it was the most sensitive site in the country and that proposing a

tolled motorway at the bottom of the hill within 1000 metres of what Ms Gowan called

the complex of Tara itself was an extraordinary proposal. He said that when this was

combined with the landscape, the river system, the public park in Dalgan Park, the sacred

nature of that place, the links of Dalgan with Tara, it was incomprehensible that a such a

design would be proposed. He referred to the Interchange at the bottom of the Hill of

Tara with its lighting giving constant light pollution, the noise and traffic, and said the

He said that when you stood on the Hill of Tara and looked north or west, you looked

across a landscape that had remained unchanged for 2000, or perhaps 3000, years with

the link from Tara to Skreen, from pagan to early Christian and to modern Christianity in

archaeological landscape of great scientific and ecological value that was effectively

unchanged with the existing roads that had followed traditional pathways and changed

incrementally overtime. He said that what was now proposed would radically change the

entire context of Tara and the landscape and would destroy that landscape forever. He

said that it could never be the same and that when you stood on the Hill of Tara and

looked north to Skreen you would look across a major interchange and a tolled motorway

system, which would be the destruction of the landscape forever with no going back. He

said that this generation would have destroyed the landscape that existed unchanged for

3000 years by the construction of a tolled motorway system and a major interchange and

he submitted that this was not something that could easily be forgiven, if it were allowed

Mr. O'Donnell suggested that no answer could be given if someone asked in 10, 15 or 20

years time "why was this motorway and major interchange allowed to be built within the

suggested that now was the time to stand back and consider what was being proposed. He

said there was nothing to justify it when the scale of what was being proposed and the

landscape were considered. He said that there was not even a public service development

justification since it was a private profit making development that was being proposed to

be designed, built and operated by a private contractor, which would be designed for

profit and used as a parallel system to the existing road which would remain for those

who could not afford to pay the tolls. He said that it was for that type of a development

that we were willing to destroy the landscape along this location. He said it was clearly

not just a national question for this development because it was a world site and so was

He said that Tara was for him the symbol of Meath and it was Meath County Council that

profound impact on Tara. He said that not only would it destroy Tara but the Council's

answer for the monuments that had been identified as being connected to Tara was that

they would also be destroyed or, he said, by the euphemism quoted the previous day they

would be preserved by record. He said it was a wonderful answer for Tara that it would

be preserved by record and could then be visited in the library where there would be

drawings to show what had been removed and what had been destroyed. He submitted

that preservation by record was not an answer in this case and said that the Council had

prepared the EIS and purported to rely on that answer to some extent as the justification

Mr. O'Donnell said that in all of the Hearings he had been involved in, he had never seen

a submission that was so lacking, so inept and so inadequate. He referred to his

submission to the Inspector during the Hearing that he should go to An Bord Pleanala and

ask them to consider if they should proceed with the Hearing in view of the inadequacies

of the EIS as, he said, it was that bad. He said that it might not matter if the site and lands

were not so important but this was a critical site and he said that any flaws of deficiencies

were magnified because of the scale and the impact of what was being proposed. He said

that the inadequacies in the EIS were of crucial importance in this case and suggested that

Mr. Guthrie as the Project Engineer was not aware of the geographic, administrative or

legal context in which he was operating nor of the SPGs and said this level of ignorance

pervaded the EIS which accepted that the design had not yet been formulated and that it

He said that you could not accept a document for such a sensitive site where the design

was not yet formulated and where it would be left to the contractor to source the materials

for filling and the source of extraction and waste materials, where culverts and bridges

had not been formulated and where the height the road would be built was not even

known and said that was what was being proposed for this landscape of international

He said that the only part of the report that was generally immune from criticism was the

archaeological section since this clearly accepted the profound impacts that the

development would have, but he suggested that even here it was incomplete since Ms

Gowan had indicated that a major site, identified as part of the preliminary works, would

He said that for the built heritage Mr. O'Sullivan did not know the legal context within

which he was operating and was not aware of the need to consider the curtilage of a

protected structure, had no idea of what he was required to investigate and accepted that

he was simply sent to look at buildings without making any critical analysis of them

He said there was the ecology report on an internationally important river system where

the person preparing that report did not disclose the proposed SAC --- the highest

designation the EU could give to a site, he was not aware until it was put to him of there

being three separate species protected under the Habitats Directive in the river system,

and all of that was within the area where there was, he said, a major intersection of a

county road with the motorway being constructed at the confluence of two rivers.

He said there was a noise report by a person who had never visited the site until after the

EIS had been published. He said that when the impact of noise on the context of Tara

was considered and that Mr. Summers had never visited Tara and did not know what it

looked like, never visited Dalgan Park and did not know it was a public park before he

had prepared his report, and that this was what put in evidence as something to rely on to

justify the proposed route was unbelievable arrogance and contempt for a landscape and

for the people that lived there and for the heritage the EIS was required to protect.

He said there was a discrepancy in the air pollution report of about 20 times difference

between the modeled and measured air pollution levels with no explanation of how this

could have occurred from Mr. Crawford, the air pollution expert. He said the landscape

expert argued he could screen or landscape away a major interchange which was again a

contempt for the ordinary common sense view of what the likely impact was. He said that

there was a socio-economic report by Mr. Prendiville who accepted that he had no

sociological or economics expertise yet purported to give evidence on socio-economic

Mr. O'Donnell suggested that for each category of evidence there was a huge inadequacy

and discrepancy with huge holes in what had been submitted and said that if a script were

to be written for ineptitude and inadequacy, a more disparate and inept number of people

could not have been chosen. He submitted that when the Inspector looked at the evidence

he had heard, then he could not rely on what had been stated in this section of the EIS. He

said that of all the landscapes possible, this one was the most critical for such mistakes to

be made and that to have prepared and relied on such a document made it not surprising

that they chose to build an intersection in this particular site in an EIS that was so

fundamentally flawed. He submitted that it was simply not possible to allow the damage

that would happen in this case to occur and said that of the range of experts, and he

named them all, not one could stand up and say that their report was complete and

accurate and free from flaw. He said the contrary was the case because each one was

Mr. O'Donnell then said that there was an alternative and that it had been said on

numerous occasions to the Hearing that for this section of the route you looked at the

proposal to the east of Skreen. He said that he had deliberately chosen to compare these

two routes and that on each heading they were either equal or the road east of Skreen

was better. He said that for air pollution they were probably equal but that it would be

better not to cause air pollution to a world heritage site or a public park so the route east

of Skreen was the better choice. He said that in archaeological terms it was accepted the

road east of Skreen would be less damaging than a road through Tara and that in terms of

built heritage there were no protected structures east of Skreen. He said that for ecology

while you would have to cross the Boyne, this would not be at the confluence of the

Boyne and Skreen and that spawning would be protected, which made east of skreen

better. He said that in landscape terms Mr. Burns accepted both were attractive but

clearly a world archaeological site had a particular impact and should be avoided in

landscape terms. He said that in terms of noise and vibration a public park and a world

heritage site and a centre like Dalgan Park were places to avoid in terms of excessive

He said that the only section that sought to be relied on in providing a negative impact in

the Tara to Navan section was the socio-economic impact and, he said, this was by a

person who had no expertise in this area at all and his evidence must be discounted

because of this. He said that it had been shown to the Hearing that the entire basis of the

approach was fundamentally flawed and he submitted that if the two routes were looked

at objectively in the terms set by the Council then the road east of Skreen was the

preferred option. He said there had never been a satisfactory explanation given why that

route had not been selected and said that it came down to whether the EIS could be

depended on and said it was his submission that it could not be given reliance. He said

that even if reliance were to be given then the route in the EIS was not the optimum

because he said it could never be the case that you could build a motorway through Tara

and a major interchange at the bottom of the hill where Tara begins and that it could

Mr. O'Donnell suggested the answer for that was because the public park and the uses

within Dalgan Park were never identified in the EIS and said that nowhere within the

EIS were the range of activities and public nature of the facilities in the uses of Dalgan

Park ever identified, so they were not had regard to. He said that if the Council had

directed its mind to those uses he had no doubt that they would not have chosen the route

they did as they would have been aware of the significance of the Boyne and Skreen

rivers. He said that had they been aware of the full extent of the archaeology and its

impact on Tara, he had no doubt that they would not have chosen that route and he said

the EIS was so flawed that it was not surprising they chose to proceed with that route. He

said the Council's solution was to destroy Tara because, quoting from the McGarry v.

Sligo County Council Supreme Court judgement, he said destroying a monument likc

Tara was not just the monument but its context and if its context was destroyed, you

Mr. O'Donnell said that if a motorway was run through a public park at a place used by

the public then this effectively destroyed the public park, that if you built a major

intersection across a river spawning area you put that to an unacceptable level of risk and

that if you put all of these together you had a recipe for disaster. He said that could never

be confirmed by An Bord Pleanala if they were to properly direct their mind to what had

been proposed here. He said the Council might reply that they would destroy significant

amounts of landscape, archaeology and ecology but that they would preserve these by

record and he said he would conclude by saying that if the record was anything like the

record contained in the EIS, then it would bear no relationship to what was, in fact, there.

He submitted that having regard to the evidence there was only one solution for An Bord

Pleanala and this was to refuse to confirm this section of the road and he further

submitted that this was the appropriate recommendation for the Inspector to make.

Mr. Park said that the main thrust of the BRA position regarding the proposed motorway

was, and remained, their disagreement and dissatisfaction with the Route Selection

process as they believed this process did not fairly assess the various options and that the

preferred route of those who had attended the Public Consultation process was ignored

and that the EPR was the second least preferred and he said the Corridor Selection

process was never put to Public Consultation which, he said, meant that the process was

Mr. Park said there were many areas in the Summary Matrix in Table 4.2 in Vol. 2 of the

1. The impact on "minor roads" rated as "slightly positive" which they disagreed with

and referred to the extra length for his neighbours in walking to Dalgan Park from

their homes or to the shop at Garlow Cross, where a longer round journey of 5.1 km

2. He said that the Landscape & visual impact for the EPR (Blue Route 2) had been

wrongly entered in Table 4.2 and that the value given was understated and referred to

the values shown in Table RSR/6.6.1 as being the correct ones, and he said that Mr.

3. He said that both Consultant Archaeologists had clearly reported that any route

between Tara and Skryne Hills was not a desirable option and that this was supported

through the Tara/Skryne valley and said that they believed the EPR was Route P. He

suggested that this could only have been done to conceal the full facts. He said that

the BRA believed a route through the Tara/Skryne valley should be avoided at all

4. He criticised the impact on private properties in the Residential/Private Property

category in Table 4.2 of "moderately positive" saying that there was no positive

impact on the properties in Bellinter, Ardsallagh or Cannistown and said this entry

5. He said it seemed the Community Impacts were almost forgotten with no mention

nor of the impact on the walks in Dalgan Park by the Rivers Boyne and Skane, nor of

the work and courses carried on in Dalgan Park and Dowdstown House and said that

6. He said that they were as confused by the Noise section as the expert, Mr. Summers,

seemed to be. He said that some of the figures presented were incorrect, that the

visited the site for the first time in August 2002 after the EIS had been published and

that the Council were now saying that a new noise criteria would be adopted to assess

the noise impact. He said that the BRA saw no alternative to a complete reassessment

He said that the BRA found Table 4.2 of Vol. 2 of the EIS was not a true and accurate

assessment of the impacts and submitted that the values in that table should be corrected,

Mr. Park said they were not satisfied that the provisions for the railway line at

Cannistown had been adequately provided to meet the requirements of Iarnrod Eireann

and said that the railway line should not be economically disadvantaged by having to

construct a bridge over the motorway. He said the railway connection was an important

part of the CDP and the SPGs and deserved to be considered as part of an integrated

transport plan for the County and not as a sort of optional extra that might be taken up in

Mr. Park referred to the response given by the Council to the BRA objection to the EPR

and said that the only issue of substance in it was a description of the bridge crossing the

River Boyne, with every other aspect of the issues they had raised being ignored. He said

they considered Mr. Harold O'Sullivan's response inadequate; that of Mr. Burns was still

awaited; that they had problems with Mr. Summers credibility; that the MC O' Sullivan

response on Blundellstown & Cannistown Interchanges failed to mention Blundellstown

and said that the Halcrow Barry response described the topography of Blundellstown

Mr. Park concluded the submission by saying that the BRA had found the experience to

be less than satisfactory; that they had found it most difficult to get full and proper

information about their queries and fears; that they had found many answers to be

economical of the truth and that they had not been given full and free access to

information they had legitimately requested and they felt advantage had been taken of

their inexperience and lack of knowledge in this field. Mr. Park said that to defend their

own interests, property and environment they had been forced to spend considerable time,

effort and money in pursuing their case and he asked that An Bord Pleanala would look

sympathetically at their right to recover costs and expenses incurred with the Hearing. He

said that the BRA appreciated the Inspector's forbearance relating to their presentations

and cross-examinations as they were made to feel at ease in an area where they were

assertion that the wrong route had been chosen. He said that the EIS was a very well put

together document and that, taken at face value, it was difficult to find fault with it. He

said it was their contention that it was a flawed document, since it dealt only with the

Preferred Route, and that of deliberately hid the fact of another route option being more

viable from an environmental and cost point of view. He said that, in spite of the

Council's efforts to prevent the MRAG getting information about the proposal, they had

managed to get enough to be able to prove that the wrong route had been chosen and said

that he would now summarise this proof, which had been exposed during the crossexamination

Mr. Magee said that the MRAG instinctively knew that the wrong route had been chosen

when it was proposed to be located between the Hills of Tara and Skryne through the area

with the highest concentration of known archaeological sites and said that this had been

Assessment Paper Survey by Valerie Keeley and the N3 Navan to Dunshaughlin Route

Selection by Margaret Gowan. He referred to neither of the archaeological reports

recommending the Preferred Route and Ms Gowan's evidence under cross-examination

of Route P being the most viable from an archaeological perspective. He also referred to

Conor Newman's presentation, the geophysical survey results and his opinion of the

archaeological dimension of the EPR going to be hugely expensive in time and money.

He then referred to the various expert witnesses for the Council and the Ecology, Air

Quality and Landscape & Visual sections in the EIS and said that a reading of their EIS

reports would give the impression that the Preferred Route was the "right" option but

when the same experts report in the Route Selection Report was read you found that

another conclusion was reached and that the preferred route was not the best option from

the perspective of that discipline. He said that there was no assessment made of the Built

Heritage in the Route Selection Report and that Mr. Guthrie had not disagreed with the

quotation from that Report which said that route P did not come close to structures in the

area. He said that the Noise figures in the EIS were admitted to be wrong by the noise

expert and asked what legal standing had an EIS when it had been proved some of its

Mr. Magee submitted that none of the environmental experts employed by the Council

had recommended the Preferred Route and said that 5 of them had recommended another

route, Route P. He submitted that the decision to ignore all of the experts advice was

taken by Mr. Alan Guthrie as the Project Co-ordinator, and said that Mr. Guthrie had

justified his decision by saying that the primary reason was that the Preferred Route

affected fewer people. Mr. Magee submitted that the Assessment Matrix used to assess

all route options was proven not to have given any serious consideration to the effect on

people in the selection process, with the rating being shown as " slight positive" for all

Mr. Magee said that Mr. Guthrie's only stated reason for not choosing Route P was its

remoteness from the N3 and he said that was not true, since the P route crossed the N3

only 2 miles from Navan, while the proposed junction at Blundellstown was 4 miles from

Navan. Mr. Magee questioned the location of a junction at Blundellstown on safety

Blundellstown and Navan which, he said, would also be added to from the increased

Mr. Magee said there were a number of questions to be answered by Mr. Guthrie which

included why the NRA guidelines for Public Consultations were not followed ? ; why

information not made freely available to the public ? ; why were documents changed and

edited before being made available to the public ? and why was false information given

Mr. Magee said that, having heard the evidence, the MRAG believed that the Inspector

could not recommend that the route be approved, particularly the section going through

the Hill of Tara area. He said that the MRAG were not against a motorway but were only

against the proposed location and he said that they had put forward a credible alternative

that had many advantages over the present proposal. Mr. Magee concluded by asking that

( Note -- A hard copy and CD of the previous MRAG submission on Day 17 was handed

Mr. Casey said that he would start with what he would loosely call the Facts and that Fact

Guidelines which, he said, were quite strict. He said he would outline the chronology of

events that followed from when they had made a telephone request to the Council on 12

November for the completed Phase 1 & 2 questionaires returned to the NRA for this

scheme as required under the 1999 version of those NRA Guidelines and were told they

would be faxed to them. He said that by 18 November when no FAX had appeared they

again phoned the Council and spoke to Nicholas Whyatt and were then told that they

could not have these questionaires since " They" whoever, he said, "They" were had met

and decided the public were not entitled to see these under the Freedom of Information

Act due to commercial sensitivity. He said that on being reminded that access to

Information on the Environment under 90/313/EC and the Irish Regulations SI 125 of

1998 applied here, Mr. Whyatt had replied that this had also been debated and the request

was still being resisted but had requested a written application. Mr. Casey said they sent

November and that, in fairness to Mr. Whyatt, he supplied a letter to them on 20

November that explained the 2000 NRA Guidelines were in Draft form and the NRA did

not require that Phase 1 & 2 questionaires to be completed. He said they reminded Mr.

Whyatt that the 1999 guidelines were quite specific and would have applied at route

corridor stage, and said that Mr. Whyatt doubted these existed but had returned at 6.30

Guidelines (PMG), March 2000. You should note that these non-statutory guidelines

were not in place when the consultants were originally appointed to design and develop

published when the majority of the sections of the scheme had reached the constraints

study, Phase 2, and route selection, Phase 3, stages of development. After publication of

the PMG, the Council consulted the NRA about their use in this scheme including the

completion of the questionaires. The NRA informed the Council that on the M3 Clonee

to North of Kells scheme they only required formal submission of the questionaires for

approval for route selection Phase 3 and that there was no need to get retrospective

approval for Phases 1& 2. Therefore there are no completed Phase 1& 2 questionaires for

any section of the scheme that were submitted to the NRA for formal approval. The one

exception to this is the Kells to Carnaross section which lagged behind the remainder of

the scheme. When the PMG were published, formal approval was needed to proceed to

route selection. Phase 3 for this section of the scheme was obtained from the NRA.

Notwithstanding the foregoing, our file does contain a completed Phase 2 questionaire

questionaire for your information. However, I would reiterate that neither of the Phase 2

Mr. Casey said he was proposing that the Road Scheme Development Guidelines of May

1999 be submitted to An Bord to peruse at their leisure since Phase 1 as set out in the

guidelines was a pre-planning questionaire that set out in outline what the Local

Authority wanted to build, be it a motorway or whatever, and then, he said, the NRA

responded to that and sanctioned the Local Authority to go to Phase 2. He said they knew

these were non-statutory guidelines but they were guidelines that the NRA imposed

stringently relating to road planning. He said that the purpose of the Phase 1 questionaire,

which he said would only take about 10 minutes to complete, was to allow the Council to

proceed to Phase 2 and that was not funded by the NRA. He said Phases 2, 3 & 4 were all

funded by the NRA and that it was clear this particular scheme would be funded in its

Mr. Casey then discussed the Phase 2 questionaire for the Navan By-pass which, he said,

had not been approved by the NRA but mirrored the Phase 2 questionaire set out in the

May 1999 guidelines and said that the questions answered mirrored largely the concerns

that Ms Maher had been enunciating to the Council and the NRA throughout the year and

this Hearing. He referred to the questionaire having been signed by Ms Joyce and said

that the questions covered were " field checked, streams, rivers, canals etc having regard

to drainage systems, local knowledge" both ticked yes; " springs, wells, watertables,

turloughs " it said "no information on wells". He said it said something relating to

turloughs, something about farm walkover aerial photography and preliminary site

investigation undertaken and otherwise no. He said that in relation to ground water the

answer was no and that written after that was " preliminary investigation undertaken". He

said that at "R" was asked " Has a review of Irish /EU legislation/ regulations relating to

infrastructure/funding/regulations been carried out, ie to include issues relating to

licensing requirements during construction, quarries, tips, mobile plants etc" and said the

answer was no. He said the answer to a question " are there known areas of special

designation within 10 kms. of the study area at B" was yes and that it referred to the NHA

on the Boyne and archaeological sites at Tara and he referred to the Navan By-pass as

Mr. Casey then said that from the 1999 Guidelines once the NRA gave the go-ahead, that

the first thing to be done was to draw up a Constraints Report; that the second thing was a

Corridor Selection Report; that the third thing to happen was the Route Options Report;

that the fourth thing was there should be a Route Selection Report and the fifth thing was

that the Emerging Preferred Route (EPR) should be produced. He said that it would be at

that point that the Members of the Council would approve the EPR which then went to

pre-planning stages and EIS and on the a Hearing like this one. He said that having set

out what was the correct chronology, he would now look at what the actual chronology

was which, he said, had been dug out during the course of the Hearing. He said that the

first thing considered appeared to have been in February 2002 (as he said it) and was

called Route Options; that the second thing appeared to have been considered in May

2000 and was the Constraints Report with Archaeology February 2000 and Architecture

presentation to the Meath Councillors where the EPR popped up on the screen; that the

fourth thing, which he said was in its right order, was the Route Selection Report in

December 2001 and that the fifth thing was the Corridor Selection Report that arrived in

Mr. Casey said that as he understood it the Corridor Selection Report should have arrived

before the Route Selection Report and that the Corridor Report was dated January 2002

which was after the date of 19 December 2001 when the Council had advertised their

intention to vary their CDP and the Navan Environs Plan to allow for the construction of

a motorway incorporating the route west of Navan through Ardbraccan up to Kells. He

said that the Corridor Report arrived after the variation was advertised and that the Route

Corridor Selection Report but said that by the time the Corridor Selection Report was

there it was already a fait-accompli as far as the 2001 CDP was concerned. He said that

the Route Selection Report of December 2001 and the Corridor Selection Report of 2002

Mr. Casey said this juxta-positioning of the planning such a project defied all logic and

had placed members of the public in County Meath and in particular, his clients the

Mahers, in a material disadvantage which he would now deal with. He said that the

Meath CDP of 2001replaced the 1994 CDP, which had been allowed an extension of time

by the Minister to allow for debate and for the public to be consulted, and that Plan

became operative in March 2001. He said that March 2001 was ten months after the EPR

for the motorway had been shown to the Members of the Council at their meeting on 8

May 2000 and that a Matrix ( which he showed to the Hearing) had been shown to the

Councillors at that meeting. He said he believed that the matrix shown to them was a

simplified version of the actual matrix for what reason he did not know, but suggested it

He said that between May 2000 and March 2001 when the CDP was adopted nothing had

been done to incorporate the EPR into the CDP and that this required the advertising of

the Variations on 19 December 2001, both to the Meath CDP which was 8.5 months old

then, and to the Navan Environs Plan and he said that the people of Meath deserved an

explanation for why that happened. He said the advertisements allowed for submissions

to be made up to 26 January 2002, but that reports had been prepared on 30 and 31

January for circulation to Councillors on the Friday, 1 February, to vote on the Variation

Mr. Casey said there was a curious matter relating to those variations of the Meath CDP

of 2001 and the Navan Environs Plan of 1997 and he referred to Mr. Killeen's evidence

considered regarding their objectives together with the 2001 CDP and the Variations as

being the cause of some curiosity for him. He said that he could not see what relevance

was the 1994 CDP now and could not understand what the Navan Environs Plan had to

do with it after the adoption of the new CDP in March 2002 but that he now realised that

the Navan Environs Plan of 1997 was produced as an Area Plan by the Council under the

1963 legislation as part of the infrastructure of the 1994 CDP. He said that when the 2001

CDP kicked in, then everything that had to do with the 1994 CDP was cut off and that

you started with a new fresh clean sheet. He said that he could find no reference in the

2001 CDP of a carryover into that Plan of the Navan Environs Plan of 1997 and said that

if anyone could point him to the carryover into that Plan, he would be delighted.

Mr. Casey then said he would theorise that if there was not a carryover into the 2001

Plan, that there was then a significant and material lacuna in Part 2 of the 2001 CDP

where there was no mention of Navan and its Environs in relation to various County

plans around the County contained in that document. He suggested that at this stage the

lacuna was so gaping that it undermined the viability of the 2001 CDP and said that, at

any rate, the variation proposed to the Navan Environs Plan 1997 on 19 December 2001

was adopted on 4 February 2002. He said that Variation allowed specifically for the

development of a motorway from South Navan up to beyond Ardbraccan and allowed for

the construction of feeder roads from the centre of Navan out in a southerly and

southwesterly direction to the Athboy Interchange and that that was what the Navan

Environs Plan allowed for. He said that it seemed to him that you could not vary a Plan

that did not exist and that he was submitting to An Bord that it was highly questionable as

to whether there was any variation of the Navan Environs Plan of 1997 on 4 February

2002, because he was saying no such Plan existed which left a gaping hole in the middle

of the 2001 Meath County Development Plan, and said he was signaling this to everyone.

Mr. Casey then referred to the Consultation processes and to the case of Attorney General

and the relation of Frank McGarry, Paddy O'Hara, Patricia Mulligan,Niamh Crimin, John

Hamilton in their own right re Sligo County Council, Supreme Court 1985, no.118/133,

Carrowmore Graves case and he quoted from the judgement which, he said, was well

known to An Bord. One part of the extracts he quoted reads " The Plan is the statement

of objectives. It informs the community in its draft form of the intended objectives and

affords the community the opportunity of inspection, criticism and, if thought proper,

objection. --- The private citizen refused permission on such grounds ( ie material

contravention of the CDP) based upon such objectives may consloe himself that it will be

the same for others during the currency of the plan and that the Council will not shirk

adopted until the following March and asked why, given Mr. Justice McCarthy's words,

the citizens of Meath and his Client, were not given an opportunity to ascertain

essentially what was now adopted by the variation to the Development Plan 8.5 months

after that EPR came into being, which allowed for the motorway to go past Ardbraccan,

and why that was never in the consultation process and the drafts of the Plan prior to its

adoption. Mr. Casey said he would put on the record that the variations were adopted on

4 February 2002 and that the newspaper advertisement of the fact of the variation to the

Meath CDP and Navan Environs Plan was dated 29 May 2002, almost four months later.

He said he could find no explanation why there was such an extendcd period of time

between the adoption of the variation, which took effect immediately, and the notification

to the people of Meath that it had come into being. He said that in April and May 2002

Ms Maher had sent two people to the Council Office in Navan seeking an up-to-date

version of the CDP and that the professional representative was given Volumes 1, 2 and 3

of the 2001 Plan without the Variation and the person who went in on her behalf from

Ardbraccan was given the same. He said that again on instructions a representative of Ms

Maher was sent into the Navan Offices of the Council during the course of this Hearing

in August looking for the current version of the CDP and was again given Volumes 1, 2

Mr. Casey submitted that if the chronology he had given was correct, then there had been

a denial of the rights to participate in the process of (a) the routing and positioning of the

road, (b) the CDP, (c) the variation because the variations were published long after the

time had elapsed in which the public and those affected by CPO notices could make their

submissions and objections to the EIS and CPO as the documentation was not available.

He submitted that you could not make a reasoned submission which would be technically

correct in law or in fact unless you were in receipt of, and aware of, the passing of the

variations of 4 February 2002. He said that, to him, amounted to a denial of public rights

of participation in the process leading to the Oral Hearing and on to An Bord and any

Mr. Casey said he now wanted to come to the scheme itself and said that the statutory

basis for there being a Hearing was to look at and have an Oral hearing into the CPO and

to participate inn a fact-gathering exercise in connection with the EIS and the EIA. He

said he wanted to remind An Bord that the concept of EIS and EIA was not a creature of

Irish domestic law but was a creature of Europe by reason of the various votes in favour

of further European integration over the years. He said that the Directives relating to EIA,

Habitats and Ecology, Water Quality and Air Quality emanated from Europe and were

binding on us here. He said that we were sometimes good at transposing the requirements

of European Law particularly in the areas of agriculture and such matters, and were

particularly strict in their enforcement, and said that we were not so good in other areas

He said that some questioning had arisen the previous day relating to data and whether

there was a requirement to furnish data or not as part of an EIS. He said the relevant

directives were 85/337/EC as amended by 97/11/EC on the assessment of certain public

and private projects in the environment. He said the recent Directive updated the original

EIA legislation and amended a number of articles of the 1985 Directive. He read Articles

3 and 5 sections (1), (2) and (3), with section (3) saying in part "The information to be

provided by the developer in accordance with paragraph (1) shall include at least : ---- (3)

the data required to identify and assess the main effects which the project is likely to have

on the environment" and he said that he emphasised that section (3) required the data to

identify and assess the main effects, not the adverse effects but the main effects. He read

the next section as " An outline of the main alternatives studied by the developer and an

indication of the main reasons for his choice taking into account the environmental

effects" and the last section as " A non-technical summary of the information mentioned

Mr. Casey said that the 1997 EIA Amendment Directive was implemented into Irish law

by the 1999 EIA Regulations and that in Schedule 6 it set out the information to be

contained in an EIS and that it mirrored the amendments in the 1997 Directive which he

had referred to above. He quoted the equivalent passage from the 1999 EIA Regulations

and said this included for the inter-reaction between all of those matters including water,

culture and heritage, landscape, soil, air, material assets, flora, fauna, human beings,

climate. He said that if he took the EIS that had been furnished to the public and assumed

that was the only information available to them, until documentation started coming out

of the Council during the Hearing, he would submit to An Bord, who had already allowed

the Hearing to go to Oral Hearing, that if An Bord considered the contents of the EIS

furnished to the Hearing and made available to the public they could not possibly come to

the conclusion that the EIS and the information contained therein complied with the

He said he would give one example of this and said that Ms Joyce might have been

wondering why he had been asking her questions about the conclusions set out in the EIS

at Volume 5A relating to soil, water, geology and hydrogeology and why he was harking

on about the Report of April 2002 which post-dated the EIS and which appeared to

review the question of water, geology and hydrogeology at the Ardbraccan area. He said

that he was not present for the balance of the Hearing on the other Sections all the way

from Clonee but, he said, all the borehole logs, trial pit logs and core hole logs and results

and all the data relating thereto should have been included with the EIS, so that the main

effects of the project on the environment could be identified. He said he had sight of the

affected by the line of the project from the Durhamstown Road Overbridge to the start of

the Navan By-pass section had been given any opportunity to examine the data referred

to or contained in those Reports. He said that it appeared to him that those borehole logs

were nowhere to be found and that it appeared to him to be a gaping hole in the middle of

the EIS. He submitted to An Bord that it rendered the EIS unacceptable and unworthy of

Mr. Casey said that Ms Joyce had said that the part on hydrogeology and geology and

other related matters in the EIS were an assessment by someone who was no longer with

the Company and that it was conclusions drawn by him from data that were put in the

EIS and that people were simply supposed to accept a conclusion that he had come to as a

fact. He said that they could not do that, and said that any conclusions posited along the

entire route that were not backed up by the data could not be regarded as sufficient

statements of fact to be assessed so as to (a) identify and then (b) to assess the main

effects on the environment, and then to go on to consider whether they had any adverse

Mr. Casey said that Ireland had a peculiar record with Europe in its track record on EIA

and that Ireland had a peculiar record before the European Commission and before the

European Courts of Justice and was being regularly hauled before the Commission and

the Courts of Justice for failure to implement environmental directives and regulations.

He said he would refer An Bord to the judgements of the European Court of Justice

against Ireland in that regard, including one of the Court Fifth Chamber of 21 September

1999 relating to Directive 85/337/EC for Case C/392/96, which related to thresholds and

matters of that nature. He said that Ireland's defence against that action was that it was

pulling up its socks and that it was improving its EIA regulation and domestic legislation

to enable it to apply the 1985 Directive and said that while this was going on, the 1997

Directive was coming into force with the 1999 EIA Regulations. He said that contrary to

what Ms Dempsey thought, these regulations applied equally to road building projects as

much as they did to any other project and that there was no waiver for road projects. He

said there were no lessor thresholds for roads than there were for dumps, for water

extraction, for airports, for gas terminals or for anything else, with the same rules

Mr. Casey said that in a recent opinion of the Commission addressed to Ireland in, he

Commission, under Article 226 of the Treaty, addressed Ireland's failure to fulfil its

obligations under Directive 85/337/EC and Amending Directive 97/11/EC regarding the

requirements of an EIA and he quoted from page 3 of that Opinion as "The information

to be provided by the developer in accordance with paragraph (1) shall include at least a

description of the project, a description of the measures envisaged in order to avoid ---

the data required to identify and assess the main effects -- etc." He said that the Opinion

dealt with specific cases where the Commission believed that Ireland had been in breach

and that one of those was a road project, complaint P1998/4307, which concerned the

environmental impact of a motorway project in Co. Kildare called the Kildare By-pass

which was given development consent on 22 January 1996 following an EIA. He said

that project involved constructing a motorway below the level of the surrounding land

which required the constant removal of large amounts of water from an acquifer, or a

natural reservoir, to keep the motorway dry and said that everyone present would be

aware of the Pollardstown Fen. He said he was tendering this to An Bord as he thought

that An Bord knew the comments of the Commission in relation to that complaint and he

Mr. Casey said that the net effect was that before development consent could be given, all

of the data must be furnished and made available to the public for the public consultation

process and that the public must be consulted and that al of the data in the fact-gathering

exercise would then be assessed by An Bord. He said that it was okay for the EIS to set

out the likely effects on the environment of a particular plan or project, and said that as a

matter of good practice both positive and negative impacts should be set out, and that

then to proceed to come up with whatever the types of remediation or mitigation that

were capable of objective assessment. He said that in the case of this EIS he believed that

it did not contain fact, because the data was not provided, but only the Consultants views

on the merits of this particular project and he said these were saying it was great but we

are not going to give you any of the information which would allow you to question any

of the conclusions reached. He said that Ms Maher had referred to a rather peculiar

statement made to the Hearing which, in effect, said that if it was not put into the EIS

then they could not be blamed for being wrong and he said that the execution of an EIS

Mr. Casey again referred to the adoption by the Council on 8 May 2000 of the motorway

route and said that was done on the basis of a matrix that was simplified so that they

could understand it and that the effect of that simplification was to merge the boundaries

between the weighted criteria across a number of areas. He said that the crossexamination

in Table 4.3 and to try and draw a fresh matrix which would be accurate but said that the

ESB power cut had prevented them from doing this. He said that if the matrix presented

to the Councillors for the EPR on 8 May 2000 was examined, there were a number of

areas where the rankings did not make sense and that he would refer to the evidence for

Mr. Casey then said that when looking at Table 4.3, the summary matrix of the Navan

By-pass in Volume 2 of the EIS and at Routes A to H, it had to be remembered that at 8

May 2000 the 1997 EIA Directive and the 1999 Regulations were in force. He said that

for "landscape and visual" every route was ranked as neutral which he concluded meant

no impact at all and said that seemed strange since Route B went straight through the

front garden, a wing of the House and the stables and trees at Ardbraccan and on towards

the Durhamstown section and the toll plaza. He said that if Route A, which was the Route

now being examined in more detail than the others, was looked at it also said hat

"landscape and visual" was neutral and he asked that An Bord when looking at these two

matters would exercise common sense in seeing if there was any reality to those two

weightings. He said that in terms of "air quality" there was a major negative impact

found for Route A and a moderate negative impact for Route B and wondered how that

difference could have arisen. He said that in terms of "planning and development" the

matrix said Route A was extremely positive and wondered how that could be given the

CDP of 1994 and Navan Environs Plan of 1997 on 8 May 2000. He said that may well be

so in terms of the varied Plan and he suggested it flew in the face of logic that there was a

big blue blob there and that Route B was a major positive since that went through

Ardbraccan House itself. He said he was only analysing Routes A and B at that time to

show how ridiculous that summary matrix was and said that if geology was looked at,

which was neutral across the board, you could not even come to a conclusion whether it

Mr. Casey said that there were a number of items in the Powerpoint presentation to the

Councillors on 8 May 2000 relating to Routes A , B and even H that beggared belief in

logic and he said they would be submitting that to An Bord later on when the ESB was

back on line for them to complete their fresh analysis. He then referred to the Conor

Newman response to Margaret Gowan's written response which had been submitted to

the Hearing by FAX that morning ( See Section 82.2 of this Report) and he read Mr.

Newman's response to Ms Gowan's point 6. He said that it appeared Mr. Newman was

making the point that the favoured route from the archaeologist in the Constraints Report

of February/March 2000 was to go from north of the Hill of Skreen and not to turn

northwest between Skreen and Tara and head to south Navan via Dalgan Park and head

for Ardbraccan south and west of Navan. He said that would mirror the experience of

Valerie J.Keeley in their recommendations of February 2000 when they said if they had

to choose a preferred route, they would say that a route east of Navan and around the

He said that he could not find any reasoning that would upset that viewpoint between

February and May of 2000 because Mr. Breen in cross-examination admitted that the

field walking was only for Route A and was only commenced after 8 May 2000. He said

that Mr. Breen had been forthcoming and fair and that some of the things he had said

might be unpalatable when viewed by the NRA because of he confirming he only started

statement that some site excavation including topsoil stripping might be required in the

area to the southwest of the Mound, south of the Bohermeen Overbridge and the corner

of the field that was being landlocked. He said that area was also referred to in Ms

Rooney's Report they had tendered to An Bord and said that in the NRA Guidelines of

1999, which were non-statutory but nonetheless binding, it was stated that it would be in

order to conduct trial digs and matters of that sort. He said that in the document issued by

the Department of Arts, Heritage, Gaeltacht and the Islands issued in 1999, "Framework

and Principles for the protection of the Archaeology Heritage" it stated at paragraph 3.6.6

on page 27 that " EIA should, unless there is substantial grounds to show that it is not

appropriate, test excavation". Mr. Casey said they knew from Mr. Breen that there would

have to be test excavation along the line of the route passing Ardbraccan and he said that,

not having been present for all of the other areas from Clonee to Kells, he could not say

whether similar excavations should have been carried out elsewhere as part of the EIS

process leading to the data to be contained in the EIS. He said there was nothing to have

prevented this and that it was recommended by Arts, Heritage, Gaeltacht and the Islands.

He said that it left them in an "Alice in Wonderland" situation in relation to how the

various matrices were arrived at for archaeology at Table 4.3 in Volume 2 of the EIS, and

Mr. Casey referred to Ardbraccan itself and said that Mr. O'Sullivan, who had only

become involved long after the route had been adopted by the Councillors, did not really

disagree with all that they, and Mr. Shaffrey, were saying about Ardbraccan. He said that

while there might be slight differences in emphasis, both Mr. O'Sullivan and Mr. Breen

agreed that Ardbraccan was a very rich area in terms of its historical, archaeological,

architectural and landscape context. Mr. Casey said that he had already read into the

architectural heritage included the historical, cultural, social, archaeological aspects and

the setting and it included groups of sites which, by definition, must include the groups of

sites plus their settings. He said he would remind An Bord that that legislation of 1999

was in force in 2000 and that if any element of common sense was applied in looking at

the setting and the objectives of the CDP, then the placing of a motorway on the

landscape 650 metres away from Ardbraccan directly in its view, within its historical

demesne, that part of it which was no longer in the ownership of the present owners of

Ardbraccan who, at great personal expense, had managed to reclaim that area west of the

farm road, was something which in saying there would not be an effect on the setting by

the imposition of a 21st century superhighway was a ludicrous statement. He said the

Inspector had commented on he taking a quick trip around West Cork to give examples

of the juxtaposition of ridiculous edifices in the settings of some of our more important

historical and archaeological and architectural sites but he had done that to make people

think about what was being imposed on the landscape of Ireland and on those parts of the

O'Sullivan referred to the issues raised by Ms. Maher in her letter under four headings

and the letter from Mr. Starret CEO of the Heritage Council to Mr. Tobin CEO of the

NRA and then he read from paragraph 7.4 on page 17 where Mr. O'Sullivan referred to

matters not impinging on the House but on its settings and said that Mr. O'Sullivan was

saying it would affect the settings. Mr. Casey submitted that it was a matter of law and

fact that the siting of the motorway with all of its intended environmental impacts,

including traffic, air, noise, water, visual impact, dust, pollution, and whatever affronted

the eye in having to look at it in the context of a richly endowed historic landscape

offended the law, offended the particularity of the objectives of the Meath CDP as

opposed to the general objectives. He said that particular objectives must be given greater

weight than general objectives since they had been made particular. He said the siting

offended against the sense of pride in our surroundings, in our countryside and in our

heritage whether that heritage came from pre-Christian, Christian or Norman times, from

the Protestant Reformation, the 800 year war with Britain or 100 years ago, it did not

Mr. Casey said that he understood Ms Joyce to say that the Durhamstown road had been

moved off-line further north to facilitate Ms Maher at her request but he took from her

responses to the Inspector's questioning about overpasses being built off-line or on-line

that there was a general policy for overbridges to be built off-line because of mounding

and houses along the line. He said that if that was the case then it seemed to him the

present positioning of the Durhamstown Overbridge was in line with the general policy

He said that he understood Mr. Searson had given evidence and had been cross-examined

about noise and that the outcome was that noise would present an adverse significant

impact on the House and settings of Ardbraccan and said that would escape onto the uses

of Ardbraccan in terms of noise pollution. He said that there was nothing in the EIS, or

before the Hearing, to suggest that the interactions between the noise and the uses of

Ardbraccan and its demesne were tested or that the interaction between noise and air

pollution, Ardbraccan, its landscape, its setting, its cultural heritage, its archaeology, its

water, effects on water, geology, hydrogeology or its landscape were considered in their

inter-relationships to one another in accordance with the EIA directive and the Irish

Mr. Casey said that the problem was that Ms Maher and her husband, who had lavished

time and money on the restoration and conservation of Ardbraccan, could not even deal

with the NRA and Council on the question of a deep cutting of the roadway to ameliorate

noise because the underlying ground conditions were not known. He said that it appeared

there was overburden of some nine metres from the borehole results for Durhamstown

and possibly further back the route for maybe 200 yards to the south where there

appeared to be four more boreholes near the location for the possible borrow pits. He said

that in the absence of any data or analysis of data relating to ground water, geology and

hydrogeology, it was not possible to assess whether it was possible to cut down into this

nine metres of overburden to try and remedy the noise, air pollution, visual impact and

Mr. Casey said that even if they had tried over the last three years to deal with the

Council and the NRA and their various advisors, they would have had to try and amass

all of the data themselves to make an assessment of all the interaction between all of

those matters. He said they could not have come to any conclusive view with the Council

since the Council simply had not given any of the data or looked at any of those

interrelations not alone for Ardbraccan but, he said, that nowhere in the totality of the EIS

for the motorway were those inter-relationships taken into account as required by law.

Mr. Casey said that in relation to the Durhamstown Road Overbridge they did not know

whether it could be put seven metres into cut, when it could have been up to 1.9 metres

He said they did not know if a large mound, like that described by Ms Maher at her

nobody had ever addressed that question. He said nobody had addressed the question of

done or if a deep cut could be put there, and he said that by deep he meant 7 to 10 metres

He said that there had been various promises made during the Hearing relating to

lighting, screening and planting of trees and he referred to Mr. Evans comments about the

point where the tangential light started towards Ardbraccan. He said he understood that

was on an embankment and as his calculations showed this to be about 1 or 2 metres

above the surrounding ground, then it would require 10 metre trees to raise the trees to a

height of 8 metres over the roadway. He doubted the feasibility of a timber screening

along the side of the road there to try and divert the flash of headlights and said these

were matters that could not be dealt with since the people who were responsible for doing

He said that Mr. Burns had told the Hearing, by reference to a photograph taken from the

Bohermeen Road looking north along the stonewall which incorporated tree screening

and the gate pillars, that these would have to be retained and he said that Mr. Burns had

indicated, even if not in formal words, that in the event of development consent being

given that 10 to 12 to 15 metres from the western edge of that wall boundary to the top of

the embankment leading down into the cutting would be planted and that was in the

nature of an undertaking. He said that the engineering drawings indicated that would

involve taking land from the eastern side of that wall which was not allowed for in the

CPO maps. Mr. Casey said that it appeared to him from these drawings that if screening

of 12 metres was to be kept the whole way up to Durhamstown, that it could not possible

be done within the landtake and also have two in one embankments, drains 1 to 1.5

metres, the median strip and the minimum carriageways as set out in Volume 2 of the

EIS. He suggested that the Inspector should "run his ruler" along that area from

Bohermeen to Durhamstown and do the same exercise as he had done. He suggested that

the Inspector would also conclude that the screening mitigation proposed for that section

requirements of Volume 2 relating to carriageways etc. He said that from his examination

it appeared as if the landtake from a point some distance to the north of Bohermeen

Overbridge, possibly after a few hundred yards, was 16 metres too little in terms of its

width and that shortfall continued for some distance northwards. He said that even if the

mounding to ameliorate noise as outlined by Mr. Searson was started at that point, the

bunding would require a greater landtake and said that unless that was taken from Ms.

Maher he could not see how the NRA, or the concessionaire, could possibly comply with

Mr. Casey said there was an issue about the Farm Road and that the Inspector had invited

him to make a submission about this. He then submitted that if a dual carriageway was

being given sanction in this area, then the Farm Road should be closed off from the

Durhamstown road right down to the Five cross roads other tan for the people who lived

along the road and the people who owned Ardbraccan or, effectively, the landowners.

He said he had one final matter he wanted to refer to and that was about the public

questionaires handed out as the choice of questions used always puzzled him. He said

what puzzled him even more was the weighting given to various answers as they had

been told that 79% of people said that proximity to the motorway would be their biggest

issue. He said that the answer of "people living near the route 79%" to " what in your

opinion is the most important consideration" might be an Ibsenism but whether it was

that the people living near the route should be accommodated to allow then gain access to

the route or as in the people living in east or north of Navan. He said the second most

important weighting to" what in your opinion was the most important consideration" was

that 71% said archaeology and historical sites. He said that was part of Ms Joyce's

Powerpoint presentation to the Councillors on 8 May 2000 and that if indeed archaeology

and historical sites were so important to the people who filled in their questionaires and if

found to be an important consideration to put before the Councillors in terms of

Graves judgement and that he wanted to quote from the final paragraph where Mr. Justice

McCarthy said " I would not like to end this judgement without paying tribute to the

courage of those who have at considerable monetary risk challenged the conduct of the

observation of important archaeologists in the western world " Do the Irish have no

Mr. Sweetman said that he would deal with the trees in Ardbraccan at the start of his

submission and said that one of the Beech trees in Ardbraccan had honey fungus which,

when it came into an estate, might stay dormant for a while or it might run rampant

throughout the estate. He said that no-one knew why it decided to do that but if it did

decide to run rampant, every tree around Ardbraccan House would die and that any

mitigation measures based on the survival of those trees were ill-founded. He said that

the Copper Beech, which was the most important screen at the back of the house, had

bracket-fungus and was at the end of its life and had to be assessed whether to take it

down now or wait for next year. He said that the small Beech in the middle of the view

had a forked leader at about 15 feet and would not grow into a substantial tree and that

the large Beech on the left as you looked from the house was mature to over mature and

might fall in the next storm. He said that if it happened that those three trees went, the

entire house and the view, which was the view used for the light in the photograph,

Mr. Sweetman said that the Ash trees at Durhamstown were overgrown hedgelings and

were growing on a bank, were inadequately supported and would be extremely prone to

watertable were certain to take place on that site and said the trees could not be relied on

for any manner of screening. He said these trees also appeared to have a certain amount

of cavities in them and that Ash trees with cavities were the normal habitat of Bats. He

said that Mr. Burns was relying of the trees already in the landscape to mitigate the

deliberately set out to obstruct throughout this development. He said that when Mr.

Keane could magically produce documents off the Material Contravention File which

were not on it 12 hours previously and refused to answer where he got it from or whose

possession it was in was an example of this obstruction. He suggested that Mr. Keane's

reason for refusing to answer was because the document had been deliberately suppressed

from the public. He said that the Council had worked on a need to know basis all the way

through and that this was abusing the public as it was a fundamental requirement of the

EIA process that the public be consulted. He said that Fr. Pat Raleigh had given similar

evidence of abuse by the Council to that of Ms Maher and he said that there had been

He said that An Taisce believed that some route improvement was required from Clonee

to Dunshaughlin and that Dunshaughlin needed to be by-passed and they accepted that

Navan needed some relief. He said that he had been going to say that An Taisce saw

nothing wrong with the Clonee to Dunshaughlin section and said that he really had not

looked at that section. He said that in view of the incompetence and deception in the

other sections they had looked at from Dunshaughlin to Navan and the Navan By-pass,

he could not recommend to even accept that part of the road since he saw no reason why

it should have been more competently looked at than the sections they had looked at in

Mr.Sweetman said it was absolutely clear from the evidence put before the Hearing that

the wrong route was chosen for that the Dunshaughlin to Navan section. He said the

absolutely nothing about socio-economics. He said that everything pointed to the Navan

By-pass going east of Navan and that the only reason for not putting it east of Navan

appeared to be that there was some clay east of a tailings pond that might be used to build

a tailings pond extension at a future time. He said that clay to build this tailings pond

could be sourced anywhere in Meath as Meath was basically deep clay soil. He said that

it was not a reason to destroy our heritage because the Navan mines might or might not

want to extend the tailings pond. He said he was one of the objectors to the tailings pond

and that it turned out that everyone was happy and that the conditions were basically

agreed and greatly improved the process. He said that it was a consultation process with

Tara Mines rather than a confrontation process with everything put on the table. He said

that the grass grew on one half of the tailings pond because they had spread mushroom

pollution there at two parts per million, the tailings pond was absolutely safe and without

Mr. Sweetman said that the route selection of these two sections was fundamentally

properly and proper alternatives looked at, it would have been impossible for it to come

out with the route that they now had come out with. He said that he and An Taisce

supported everything that Mr. Casey had said about the EIS, and he was just going to

extend that to the rest of the route. He said that the EIS was fundamentally flawed in law,

that it did not comply with th 1999 Regulations and did not comply with the NRA's own

He said that Ms Dempsey had said on Day one or two that the 1999 Regulations did not

Guidelines at page 38 and chapter 4. 3.1where the particular topic outlined were the EC

version said that archaeology should include the necessary exploratory investigations. He

said that Ms Dempsey, Ms Gowen and Ms Joyce all said they did not do it that way but

did it afterwards. He said that was what happened at Carrickmines and was why the

Commissioner wrote once again to the Irish Government for not complying with the EIA

Directive. He said permission was given to a road without assessing the ground water and

massive problems arose and that the Glen of the Downs suddenly became an SAC and

infrastructure and were in the First and Second schedules requiring full EIA. He said that

this was also stated in the NRA guidelines which Mr. Whyatt said were in draft and said

that there were previous guidelines, version 1.0 of May 1999 which said much the same

thing including the 1999 Regulations, and there was no mention of draft on version 1.1 of

March 2000. He said this was another case where the Engineers in this project said they

knew best and did not need rules, they did not need to tell the public and did not need to

He said that the assessment of the ecology at the Boyne Valley crossing was non-existent

mitigation measures should be put in place. He said that the "fumbled" mitigation

measures proposed at the site did not actually fit into the site relevant to the construction,

so they could not be implemented. He said that the EIS contained no details of the source

of the raw materials or of the deposition of waste and that the interactions of these was

something that was considered in the EIS and that nobody could answer questions on it at

the Hearing because everybody was passing the buck. He said that the micro-climate

relative to the road was not considered and there were fog patches in places and the

relevance of the Tara Mines shaft was not considered but that the mud for the tailings

pond was considered as very important. He said that there was no data for ground water

and that construction traffic was averaged over the entire route. He asked what was the

construction traffic at Ardbraccan and said nobody knew because no-one assessed it and

it was not in the EIS. He said that they said something would be done about it but that it

never was unless it was pinned down and that it could not be said what the mitigation

beginning which was that they did not put things in the EIS which they did not think were

necessary because if it was not in the EIS they could not be questioned on it and he said

that was very arrogant, but said that it might not be the exact wording but was something

on those lines and that the Inspector would read it for himself in the transcript. He said

that the information contained in the EIS relevant to the toll plazas was not, as he had

said previously and would say again, adequate to build a one-room cottage with the

information supplied and not adequate for a toll plaza. He said that he was convinced that

the 2001 Development Plan was a document that deliberately set out to deceive trhe

public and no evidence had been produced to convince him of anything else. He said they

had heard no mention of the White Quarry or Ardbraccan Quarry which was a late 17th or

early 18th century quarry out of which the stone came for some of the most important

Ardsallagh. He said that the White Quarry had been flooded and filled in for many years

and that a cursory glance at the aerial photograph would have told the Engineering Team

that they had serious groundwater problems in that area because of its high watertable.

presented was below the naturally occurring level so that they were not going to appear to

high when the evidence came in. He said that the noise data which had been collected on

the site was going to be ignored because the Engineering Team decided it did not fulfil

the criteria they had set themselves. He said the object of an EIS and assessment was that

all the relevant data be presented by the developer and that where the developer refused

to produce relevant witnesses, then it could only be stated that the relevant data was

either highly suspect or the developer was embarrassed at what might the answers might

be. Mr. Sweetman said that the no-show by Duchas at the Hearing on both ecology and

implementation of the Habitats Directive. He said he welcomed the fact, and hoped it

Mr. Sweetman said that Mr. Perkins had his name on every document presented at the

Hearing but was nowhere to be seen as he was embarrassed at what had been put forward

and that so he should have been. He said that Mr. Murphy, who really was a developer,

was hiding under some stone because he was perpetuating a con-trick in planning terms

since this was a development by a private company looking to transfer an exemption

from the Planning Authority, and said that he did not want to tell the Hearing that

because he was embarrassed by it. He said that point 9 of Mr. Newman's submission

clearly stated what Mr. Lumley was trying to point out to Mr. Keane, while Mr. Keane

was being aggressive to him. He said that no-one looked at the electricity line that

crossed the Deer Park ( at Ardbraccan) and how it would cross the road and he would

Mr. Sweetman concluded his submission by saying that he hoped and was confident that

this road project would be the second road project in the country that would be refused

Mr. Butler said that the exercise commenced on 21 August and now concluding on 21

November was, as had been restated several times, a fact finding exercise to give An

environmental impacts of the development and to decide whether the scheme should go

forward. He said that his comments would only deal with facts insofar as they were

relevant to illustrate the legal issues raised by the objectors and that he would leave it to

the Inspector to balance the arguments made throughout the period of the Hearing. He

said there were two issues that he wanted to deal with at the end of his submission and

these were the route selection issue, which had been raised by various parties, and the

relationship between the Council as Road Authority and the promoters of the scheme and

He said that he would deal with the issues in the order they had been raised and,

commencing with the EIS, he said that Section 50 of the 1993 Roads Act as amended by

the 1999 Regulations set out what was required in an EIS and that Section 50 started off

by saying that an EIS must be prepared by a road authority for the types of development

set out in Section 50, including a motorway, in respect of the likely effects of the

proposed road development. He said that was absolutely critical in dealing with many of

the criticisms made by the objectors since it had been constantly stated and put to

witnesses appearing for the Council that what they were doing was justifying something

that they had already decided on. He said that it had frequently been explained to the

objectors that the Act specifically said that a project, the proposed road development,

must exist before the EIS was done and that therefore the EIS must by its nature and in

accordance with law deal with that road project. He said that the EIS must also look at the

alternatives that were considered but that it was not an EIS of these alternatives. Mr.

Butler said that that was the fundamental error many of the objectors had been making

throughout the Hearing when they had constantly asserted that what a proposer of a

scheme like this should do was not alone an EIS relating to the project, but one for every

He said that there must be a proposed road development and it was the likely significant

effects of that development that were to be considered. He said that the evidence that had

been put before the Hearing, throughout its entire length, had displayed that the likely

significant effects had been inquired into and that the required mitigation measures had

been set out and he submitted that was the position. He said that in the end it was still a

Mr. Butler said that much time had been spent putting the Project Engineers, and some of

the other witnesses for the Council, through extensive cross-examination relating to

matters which had led up to the decision to carry out this development and to propose the

scheme. He said they were undoubtedly entitled to go back and look at the Constraints

and other studies that had been carried out but that once the project was decided on then

it was that project which was the subject of the EIS. He said that brought up again the

proposition that the EIS was prepared to justify a proposal and insofar as that proposition

had been made, he said that he rejected it and he said that it was quite clear from the

legislation that this could not possibly be the basis on which the EIS was prepared.

Mr. Butler said that Mr. Casey in his submission had echoed some of the criticisms made

throughout the Hearing by various bodies or objectors but not to the same extent as those

made by Mr. Sweetman. He said that Mr. Sweetman seemed to have a paranoid view of

anything carried out by a public body and saw conspiracy at every turn. He said that there

had definitely a view taken by some objectors over the period of the Hearing that, in

some way, the Council had been hiding documents and had not been open. He said he

wanted to reject that view and said that it was quite clear, whatever the perception of

objectors, from listening to each of the witnesses for the Council that every attempt had

He said that there had been criticism of the EIS as to its content and clarity in its function

of informing the public and said that it was interesting to note that a number of

professional witnesses appearing for objectors had invariably praised the EIS. He referred

to Mr. Conor Newman's first submission where he had stated that " Indeed the carc that

has gone into the preparation of this section of the various EIS statement is itself a

reflection of the standing of Tara." He referred to Mr. Terence Reeves Smyth's report for

Ms Maher which said " I have now read through Dr. O'Sullivan's contribution to the EIS

and feel that on the whole his report is quite good. Indeed it is superior to many other EIS

reports I have seen." He said that Mr. Peadar Creagh had made a presentation on behalf

of Raynestown when he said " The EIS is very well put together, it is hard to find fault

with it." He said those were examples where an objective view had been taken of the EIS

which found it to be a comprehensive, detailed and efficient report. He said that it was

also notable when Mr. Sean Finlay was called as a witness for Ms Maher and was asked

about the EIS that he did not say that any significant effect had not been set out in

relation to the geology, and that he had not criticised the EIS nor was a suggestion of a

Mr. Butler said that the issue of whether the traffic figures justified a motorway had been

raised at the early part of the Hearing by Mr. Frank Burke on behalf of his clients and he

said that the debate which had ensued on the previous day between Mr. Burke and Mr.

He said that the context of the Strategic Policy Guidelines (SPGs) was an issue that

concerned many people in the locality relating to the probable or possible provision of a

rail link from Navan to Dublin and why that was not considered as alternative. He said

that the legislation was quite clear and that the two words used relating to alternatives in

the Regulations were "what alternatives (if any) were considered". He said there was no

requirement to consider an alternative if that alternative had no bearing on the project in

hand and that, in any case, the SPGs themselves said in relation to rail that, until a proper

feasibilty study was carried out regarding the provision of a rail link, it was not an issue.

Mr. Butler submitted that it was quite correct that the alternative of a rail link balanced

against the provision of the motorway was not a proper matter to be taken into account.

He said that, additionally, the SPGs themselves in providing for a strategic transport

corridor clearly included the provision of a motorway and said that word was used in the

SPGs. He said it was clearly envisaged by the SPGs that, whatever about the other type of

Mr. Butler said that the issue of public participation had been repeatedly raised and said

that this had to be put in the context of the legislation which, in the case of Section 50,

required the specific publication of certain notices about the making of the scheme, times

for objection etc. He said that there was no requirement in law for what had now

developed as public consultation. He said there was provision in the Directive 85/337/EC

for the competent authority, in this case Ireland, to set out within its own legislation

provision for written submissions, public inquiry and time scales within which that

inquiry took place but said nothing about public consultation. He said that the system

developed in this country had gone further than the requirements, both Statutory and the

Directive, and had put public consultation into being and said that those public

consultation processes were carried out. He said that insofar as an argument was made by

the objectors that the public consultation process was not in accordance with the NRA

guidelines, he submitted that guidelines were guidelines and were not strictures or

statutory requirements. He said the guidelines were a template and an aid to help

individual local authorities to direct their affairs and said that if they diverted from them

this was not an infirmity in law, giving the example where the High Court so held in the

He said that Mr. Sweetman had again raised the issue of the import of materials which

had been raised on a number of occasions in the Hearing and said that he was not going

to go through this in any great detail as the Inspector had heard submissions on that issue

at a very early stage of the Hearing. Mr. Butler said that the 1999 Regulations provided

for the promoter of a given scheme to be able to supplement the information during the

Hearing process and also provided that the information contained in the EIS need only be

such as was required to identify the project at the stage at which the Hearing process had

reached. He submitted that for all of those reasons and the reasons relating to future

processes dealing with planning applications etc, the EIS had adequately identified the

He said an issue had been raised of "project splitting" and that issue had been raised in

the context of the reasoned opinion from the EC quoted by Mr. Casey and said that a

fundamental misconception had arisen about that whole concept and was constantly

reiterated by objectors. He said that the reasoned opinion was directing the Irish

Government's attention to particular issues and gave, as an example, the case of the

Ballymun Development Regeneration Scheme where the developer divided that scheme

up into 15 separate applications instead of applying for permission in one project. He said

that the purpose of dividing it was to make each application below the threshold requiring

an EIS and the Commission rightly pointed out that was not within the spirit or letter of

the Directive and should not have been allowed. He said that in the case of the M3

Scheme there were five projects merged into one big scheme and said that how this could

be argued to be project splitting was inconceivable and that, in any case, an EIS had been

prepared whereas the EC was complaining about splitting of projects to avoid preparing

Mr. Butler said that the position of the Elected Members had been raised and raised again

in his submission by Mr. Casey and he said he was surprised at Mr. Casey asserting that

the Elected Members had adopted the scheme, since he should know what their position

was. He said that the Elected Members did not adopt the scheme as the drawing up and

proposing of a scheme was an executive function and that Mr. Casey should know the

distinction between a reserved and an executive function. He said that the drawing up of

the scheme under the 1993 Act was not a reserved function of the Members but that the

County Manager had properly kept them informed of progress with the scheme and that it

had been presented to the members for their views. He said that the Elected Members had

provision of a motorway in accordance with the scheme, as presented, and with a map

attached to the Plan which showed the motorway passing Ardbraccan. He said that the

Environs Plan specifically to take account of changes that had been made to the route. He

said that even if it could be said that there was some imperfection in the part played by

the Elected Members in bring forward the scheme, it was clear that they knew what was

He said that the issue relating to the Tree Preservation Order at Dalgan Park had been

raised and said that the Inspector should be satisfied from Mr. Killeen's evidence that the

Tree Preservation Order was provided for in both the 1994 plan and in the 2001 Plan.

Mr. Butler then referred to the argument made on Ms Maher's behalf about the variation

and said that the scheme and the indicative route were set out in the 2001 Plan at Section

3.5.2. (ii) at page 51 and bullet point 3 and provided specifically for a motorway from

Clonee to Kells. He said that Ms Maher had brought proceedings relating to the variation

of that Plan on the basis that she was not informed and did not know that a motorway was

to pass her property when, he said, that was quite clearly stated in the 2001 Plan. He said

infirmities in the way the variation was brought in, that had no bearing on the fact that Ms

Maher and everybody in the Navan area was on notice from the 2001 Plan of March 2001

that a motorway was passing in the area as indicated. He said a further issue raised out of

the Plan in Ms Maher's submissions was that a Planning Application was refused in the

Ardbraccan area, with six reasons given, and that because one of those reasons was that

the setting of Ardbraccan would be affected, it had been argued from this that the placing

of the motorway in the setting of Ardbraccan was a breach of the Development Plan. He

said that argument could not have any substance when the provision of the motorway was

He said that Mr. Galligan, Ms Maher's then Counsel, had raised an issue at the start of the

Hearing about the notice published in the newspaper that the variation was about to be