28 April 2017

Planning Department
Clare County Council
New Road,
Ennis,
Co. Clare

Submission of Objection to Planning Permission Application

Re: Planning Reference Number 161012

For: Permission for development which will comprise of coastal erosion

management works at, and adjacent to, Carrowmore Dunes, White Strand,
Doughmore Bay and Trump International Golf Links and Hotel, Doonbeg, Co.
Clare.

Dear Sir/Madam,

We wish to submit this objection to the coastal erosion management works proposed
by TIGL Ireland. In this submission we focus our argument upon the effects of the
proposed coastal development works upon the sand dune habitats and affected
species. We felt that it was important to first remind the decision makers of their
responsibility under EU law to follow correct procedure as outlined by the Habitats and
EIA directives and ensure that the requirements of these directives are met. Therefore,
the first two sections of this document will address the relevance of the proposal to the
directives (outlining why the proposed works must be assessed in accordance with
these directives), the requirements for assessment, and the legal relevance of the
directives. Following this we will identify the adverse impacts that the proposed works
will have upon the sand dunes in the area and further explain the EU’s standing on
the proposed works, with supporting evidence from experts. Finally, we wish to put
forward an alternative option to the works that is viable for the sustained protection of
both the dunes and golf course.

Please find greater detail for the legal and policy reasoning to our objection in the six
pages that follow.

Yours Sincerely,

S.Walker
Sally Walker

Senior Planning Law Consultant

EnviroConsulting
The Habitats Directive

Application of the Directive to the Proposal

Under Article 6(3) of the Habitats Directive, the subject site is deemed to be subject to
appropriate assessment. The 1992 Habitats Directive aims to ensure the conservation
of habitats and species that are of community interest. Under Article 3 of the directive,
the Natura 2000 network was established. This network identifies areas which host
sites of habitat types and species deemed to be of worthy of conservation status under
the Habitats Directive (Council of the European Communities 1992). Land directly
adjacent to the applicant’s land and land on which works are proposed, fall under the
protection of the network. The proposed coastal erosion management works will
involve the excavation of sand dunes and construction of a permanent structures on
the dunes. As the proposed works will take place on land within and adjacent to land
protected under the Natura 2000 network it is, therefore, liable to Article 6(3) of the
Directive which states that: “any plan or project not directly connected with or
necessary to the management of the site but likely to have a significant effect thereon,
either individually or in combination with other plans or projects, shall be subject to
appropriate assessment of its implications for the site in view of the site’s conservation
objectives” (Council of the European Communities 1992).

Requirements for Assessment

It is, therefore, important that the term ‘appropriate assessment’, as referred to in
Article 6 (3), is clearly explained. The main objective of the assessment is to gauge
whether the proposed project will have any (but in particular, negative) implications for
the conservation efforts of a designated Natura 2000 site (Council of the European
Communities 1992; European Commission Environment DG 2002). A more detailed
outline on the methodological requirements for such an assessment is provided here:
http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/natura_2
000_assess_en.pdf

As a general overview, however, the assessment will involve:

- Gathering information on the proposed project and project site

o Information may come from a range of stakeholders such as the
proponent, NGOs, local authorities, etc.
o It includes information such as: existing and proposed characteristics of
the project and site, conservation status of the site, relationship of the
project site to the Natura 2000 site, any proposed conservation
initiatives, etc.
- Predicting likely impacts of the proposed project
o This may involve, but is not limited to: direct and indirect impacts, short-
term and long-term impacts, case studies from similar projects, and
impacts that may be caused from construction as well as any ongoing
effects.
- Identifying conservation objectives for the site
o This includes assessing whether the proposal will result in adverse
impacts on the integrity of the site in line with the conservation objectives
of the site

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- Determining level of mitigation measures required
o This also involves providing evidence of how and when each mitigation
measure will be implemented and how effective it is likely to be

Part of the assessment also involves establishing whether there are alternative options
for the project. Following the appropriate assessment being carried out, should the
findings show that the proposed project will impact negatively upon a Natura 2000
protected area, and it is still considered appropriate to proceed under Article 6 (4), it
must be ensured that there are no alternative solutions. This is up to the relevant
national authorities, not just the developer, to assess, and should be examined without
regard to economic criteria such as costs or delays to the project (European
Commission Environment DG 2002).

Legal Relevance of the Directive

The Habitats Directive is a legally binding document under European Union Law; it
forms the basis of the EU’s biodiversity policy. The outcome of the appropriate
assessment is also legally binding, meaning that the relevant national authority must
treat the findings of the assessment as final and prevent a development going forward
should it be shown that the proposal will have adverse impacts upon a Natura 2000
protected site (Sundseth & Roth 2014).

In certain cases, a proposed project that is predicted to have adverse impacts on a

Natura 2000 site may be approved under Article 6(4) of the Habitats Directive. Under
this section, consideration for approval may be given if the project is “relating to human
health or public safety, to beneficial consequences of primary importance for the
environment or, further to an opinion from the Commission, to other imperative
reasons of overriding public interest” (Council of the European Communities 1992).

Following an appropriate assessment, should a project gain approval where findings

show that the proposal will negatively impact a Natura 2000 site, the relevant national
authority is responsible for ensuring that compensatory measures are adopted. The
Directive also requires that member states provide reports on the conservation status
of protected sites and on any compensation measures taken (Council of the European
Communities 1992).

The Environmental Impact Assessment (EIA) Directive

Application of the Directive to the Proposal
Under Article 4(2) of the EIA Directive, the proposed project must also undergo an
Environmental Impact Assessment. Article 4(2) outlines the requirement for Member
States (either through case-by-case examination or through thresholds and criteria set
by the State) to determine if any project listed in Annex II of the report should be
subject to an assessment. The type of project proposed by TIGL Ireland falls under
Section 10(k) of Annex II and, therefore, under the EIA Directive, is subject to
assessment if deemed appropriate by the relevant national authority (European Union

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2011). The EIA Directive was transposed into Irish Planning Law in 1989. The main
body of legislation referring to EIA requirements under Irish planning law can be found
in the Planning and Development Act 2000. Here, specific requirements for EIA’s to
be conducted under Irish planning can be found. Section 172(1) of the act outlines that
an EIA must be conducted if either the "proposed development of a class specified in
Schedule 5 of the Planning and Development Regulations 2001, which exceeds a
quantity, area or other limit specified in that schedule” or if it does not exceed the
requirements but the “planning authority or the Board determine it is likely to have
significant effects on the environment” (as cited in Department of the Environment,
Community and Local Government 2013).

Requirements for Assessment

Article 3 of the EIA Directive outlines the main criteria that must be assessed as part
of an EIA. It calls for the EIA to “identify, describe and assess in an appropriate
manner, in the light of each individual case and in accordance with Articles 4 to 12,
the direct and indirect effects of a project on the following factors: a) human beings,
fauna and flora; b) soil, water, air, climate and the landscape; c) material assets and
the cultural heritage; d) the interaction between factors referred to in points (a), (b) and
(c)” (European Union 2011). This has been transposed into the Irish Planning and
Development Act 2000 under Part X Section 171(A). The Department of the
Environment, Community and Local Government also published Guidelines for
Planning Authorities and An Bord Pleanála on Carrying Out Environmental Impact
Assessment, which provides further detail into the requirements of the production of
EIAs under Irish Planning Law. Section 5 of the guidelines provides further information
on the process of EIAs. Here it includes information such as the need to be carried out
objectively, that the report should assess the robustness of the EIS, identify the
timescale and magnitude of any environmental impacts, and take into account the
various development stages (including construction) (Department of the Environment,
Community and Local Government 2013).

Legal Relevance of the Directive

Under EU law, Member States must incorporate the EIA Directive into their national
planning law. Although the Planning and Development Act 2000 (which incorporates
the requirements of the EIA Directive in relation to the Irish system) is legally binding,
unlike the Habitats Directive, should the findings of an EIA show that the proposed
project will result in negative environmental impacts, a project may still be granted
planning permission by the relevant authority. So while it is a requirement under Irish
planning law for an EIA to be carried out (should a proposal be deemed relevant under
the set criteria; as previously discussed), once an EIA has been carried out and the
overall proposal assessed, the relevant planning authority or the Board may choose
whether or not to grant planning permission (Department of the Environment,
Community and Local Government 2013; Law Reform Commission 2016; Sundseth &
Roth 2014). Any decision made (and any attached conditions) must be publicly
justified in accordance with Section 172 (1J) of the PDA 2000 (Law Reform
Commission 2016).

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Adverse Impacts of Sand Dune Habitats & Species
The site of the coastal protection works proposed by TIGL Ireland are located on and
adjacent to Carrowmore Dunes, White Strand and Doughmore Bay. These areas
contain numerous habitats and species, five of which are listed as protected under
Annex I and II of the Habitats Directive. The National Parks and Wildlife Service
(NPWS), in their site synopsis for the Carrowmore Dunes, identify Embryonic Shifting
Dunes, Marram (White) Dunes, Fixed (Grey) Dunes (which are also listed as a priority
habitat type under the Directive), Reefs, & Narrow-mouthed Whorl Snail as all being
present within the area. The site supports numerous other flora and fauna species
(particularly the latter), including Eelgrass, Chough, Curlews, Lapwings and Common
Gulls; as well as a range of intermittent visitors (NPWS 2014). The main focus of the
argument presented in this submission, however, will be on the three types of dunes
listed above that are protected under the Habitats Directive and the effects that the
proposed protection work will have upon them.

The Habitats Directive calls for the conservation of all habitats and species that are
listed under Annex I and II. The Directive defines conservation to mean “a series of
measures required to maintain or restore habitats and populations of species of wild
fauna and flora at a favourable status” (Council of the European Communities 1992).
The document goes on further, defining what is meant by favourable status under
Article 1(e) and (i). In summary, the Directive aims to “maintain or restore habitats
and populations” to a range that is “stable or increasing” (Council of the
European Communities 1992).

As has previously been identified in this submission, the site of the proposed works is
subject to an appropriate assessment being carried out under the Habitats Directive
in order to ensure that the proposed works will not conflict with, but support, the
conservation objectives for the site. In line with the requirements of appropriate
assessment under the Habitats Directive, a Natura Impact Statement (NIS) was
prepared and attached to the applicant's planning application. Furthermore, in line with
the requirements of the EIA Directive (also previously identified as being applicable to
the proposed development) the applicant has included an Environmental Impact
Statement (EIS) as part of their development application. It is the argument of this
submission, however, that the information contained within the NIS and the EIS, as
submitted by TIGL Ireland, is misleading. We argue that the effects of the proposed
coastal protection works will have a much greater negative impact upon the Natura
2000 protected site than is portrayed by the planning permission application.

The coastal protection works have been proposed in response to the erosion of the
sand dunes on and adjacent to TIGL’s Doonbeg Golf Course. The erosion currently
taking place on the Carrowmore Dunes is not to be unexpected, it is part of the earth’s
natural processes. As stated by coastal engineer, Dr Jimmy Murphy, “sometimes there
is natural coastal regeneration...dunes are there to erode when a storm comes, and
they have natural cycles” (as cited in An Taisce 2017). In fact, evidence suggests that
the proposed coastal protection works may worsen erosion on the site, leading to the
loss of the dune habitats altogether. This is through a process known as ‘coastal
squeeze’. Coastal squeeze is the process by which erosion rates increase (potentially
leading to the complete extinction of the dunes) as a result of the natural processes of
equilibrium (resulting in the landward migration of sand) being prevented (An Taisce

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2017). Currently, due to the existence of the golf course, the dunes are being
prevented from from undergoing this roll-back process.

In our submission, we would like to support the findings and claims of the objection
submission (20170203-02-1012) that was put forward by An Taisce on 03/02/17.
Furthermore, we would like to refer the reader to the An Taisce submission, in
particular, pages 2-10 and page 16. Here more information may be found on the
technical aspects of coastal erosion and coastal squeeze. We also wish to draw
attention to the point made on page three of the An Taisce submission regarding the
UK reports made under Article 17 of the Habitats Directive addressing coastal
protection works. The UK reports identify that works, such as the ones proposed by
TIGL Ireland, are one of the key threats and pressures upon the three dune types
found on the proposal site and listed under Annex I of the Habitats Directive. By
constructing a barrier and preventing the natural realignment and landward migration
of the dunes, erosion of the Carrowmore Dunes will increase, with the site eventually
disappearing altogether (An Taisce 2017). As previously explained, this outcome is in
direct contrast to the conservation objectives of the site as ruled by Habitats Directive.

Alternative Options
As has been previously highlighted, under the requirements of the Habitats Directive,
it must be ensured that there are no viable (disregarding economic factors) alternative
options to the proposal that would have a lesser impact upon the Natura 2000
conservation site (European Commission Environment DG 2002). As has been
argued, natural processes will result in the realignment of dunes, should systems be
enabled to migrate landward. This results in the continued existence of dune habitats
and is in line with Habitats Directive conservation objectives (An Taisce 2017).
Therefore, redesigning the current golf course layout to allow for natural dune
movement is a viable alternative option to the currently proposed coastal protection
works that would have significantly less environmental (and potentially economic)
impact. Unfortunately, this option has not been put forward as part of the planning
permission application by any of the responsible parties. It is, however, our view that
this option is the most sustainable and beneficial for the site and we urge for this option
to be taken into consideration prior to any coastal protection structures being granted
planning permission.

Summary
In review, it is our belief that any approval given for coastal protection works on the
site would be detrimental to the conservation efforts of the Natura 2000 protected site.
As has been outlined, should Clare County Council still choose to grant permission for
the coastal protection works, despite evidence suggesting the adverse impacts upon
the Natura 2000 conservation site, this may, in fact, be a breach of European Law as
determined by the Habitats and EIA Directives.

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References:
An Taisce 2017, Planning Submission 20170203-02-1012, Letter to Clare County
Council.

Council of the European Communities 1992, Council Directive 92/43/EEC of 21 May

1992 on the conservation of natural habitats and of wild fauna and flora,
Official Journal of the European Communities, 1992L0043, Council of the
European Communities, Brussels.

Department of the Environment, Community and Local Government 2013,

Guidelines for Planning Authorities and An Bord Pleanála on Carrying out
Environmental Impact Assessment, Department of Housing, Planning,
Community and Local Government, viewed 23 April 2017,
<http://www.housing.gov.ie/sites/default/files/migrated-
files/en/Publications/DevelopmentandHousing/Planning/FileDownLoad%2C32
720%2Cen.pdf>.

European Commission Environment DG 2002, Assessment of plans and projects

significantly affecting Natura 2000 sites: Methodological guidance on the
provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC, Office
for the Publications of the European Communities, Italy, viewed 21 April 2017,
<http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/n
atura_2000_assess_en.pdf>.

European Union 2011, Directive 2011/92/EU of the European Parliament and of the
Council of 13 December 2011 on the Assessment of the Effects of Certain
Public and Private Projects on the Environment, 1992L0092, Official Journal
of the European Union, The European Parliament and the Council of the
European Union, Brussels.

Law Reform Commission 2016, Planning and Development Act 2000 Revised, No.
30 of 2000, Law Reform Commission, viewed 29 April 2017,
<http://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/EN_ACT_
2000_0030.PDF>.

NPWS 2014, Site Synopsis: Carrowmore Dunes SAC, Department of Arts, Heritage
and the Gaeltacht, viewed 27 April 2017,
<https://www.npws.ie/sites/default/files/protected-
sites/synopsis/SY002250.pdf>.

Sundseth, K & Roth, P 2014, Article 6 of the Habitats Directive: Rulings of the
European Court of Justice, European Commission, viewed 23 April 2017,
<http://ec.europa.eu/environment/nature/info/pubs/docs/others/ECJ_rulings%
20Art_%206%20-%20Final%20Sept%202014-2.pdf>.