‘What did we expect?’ - Fallout from Ferrybank Shopping Centre case continues in Waterford

The fallout from the legal proceedings relating to the Ferrybank Shopping Centre is continuing in Waterford.

The matter was discussed at the September plenary meeting of Waterford City and County Council.

Independent councillor Donal Barry criticised the council executive for taking the case, with the total cost estimated at €422,000.

Cllr Barry said: “What did we realistically expect this judicial review to achieve?

“If we had [won], would we have stopped Ferrybank Shopping Centre or simply sent the planning decision back to be reconsidered again?

“How is risking hundreds of thousands of euro in taxpayers’ money justified?”

He expressed confusion over the local authority’s failure to lodge a valid appeal to An Coimisiún Pleanála.

“Before that, our appeal to An Coimisiún Pleanála was never considered on its merits because the required acknowledgement wasn’t included.

“What was done to obtain that acknowledgement before the deadline? Why was the appeal lodged without it?

“Has there been any formal review of how an appeal considered so important could be ruled invalid?”

Cllr Barry also questioned whether the financial implications of initiating the legal proceedings were considered.

“Was there a written report outlining the financial risk assessment before proceedings commenced over our own costs and the potential costs if we lost and the maximum taxpayers’ exposure?

“If so, what financial exposure was identified? The judge subsequently indicated that Waterford [council] would not succeed.

“What difficulty did the court identify with our case and had that particular risk been identified before proceedings commenced?”

He continued by querying as to how the costs of taking the case would be financed.

“The report says that €227,000 of the costs are unbudgeted and will come mainly from staff and vacancy underspend.

“Which vacancies and staffing budgets will that €227,000 come from and what posts are going to be left vacant for longer?”

Cllr Barry also called for an independent review to be carried out of the entire process and for the findings to be distributed to the elected members.

He continued: “I support strengthening and protecting the city centre but Ferrybank Shopping Centre is not the reason our city centre retail is under pressure.

“We won’t strengthen Waterford city centre by holding Ferrybank back.

“We strengthen it by tackling the vacancy, the dereliction, increasing the footfall and making our city centre a place where people can responsibly invest and come and shop in.”

In response to Cllr Barry, Sean McKeown, Chief Executive of Waterford City and County Council, outlined his belief that filing the judicial review was the right thing to do.

Mr McKeown said: “I firmly believe that it was the right thing to do. Litigation by its nature obviously has inherent risks.

“We took the case [knowing] that there was likely to be substantial costs involved but I was driven by the right thing to do in this case and I still firmly believe that it was the right thing to do.

“I believe firmly that there was a substantial planning issue that, as far as I was concerned, needed to be determined by the court.”

He described the error that the local authority saw in the decision made by Kilkenny County Council.

“The scale of the development that’s involved in the Ferrybank Shopping Centre will have an impact on Waterford city centre.

“There’s an objective in the County Development Plan of Kilkenny County Council that states that any development of that scale requires a retail impact assessment.

“That was not provided in this case so we lodged a submission that was agreed with by the Executive Planner that was overruled by the Senior Planner in Kilkenny County Council.”

Mr McKeown then blamed the neighbouring local authority for the fact that Waterford council didn’t file an appeal with An Coimisiún Pleanála on time.

“When permission was granted to appeal to the Coimisiún, you’ve asked the question why that appeal was not heard - because we didn’t receive the acknowledgement slip in the prescribed form from Kilkenny County Council.

“That’s the facts of the case. If you read the transcript of the court case, you will see the attempts that we made to receive that acknowledgement and we didn’t receive it.

“I’m not going to name the officials concerned but we made several attempts to receive that acknowledgement and we didn’t receive it.”

However, he took full responsibility for the decision to initiate the legal proceedings and acknowledged the costs involved.

“I accept there are significant financial implications for the council [due to] the outcome that we received on this case, which was not the one that we sought.

“I take full responsibility for that. I took the decision to initiate the proceedings and I’ll repeat again that I firmly believe that it was the right thing to do.

“Sometimes as a council, we have to make such decisions and at the same time, I accept the outcome of the court case.”

Mr McKeown outlined how current vacancies will allow the council to cover the costs of taking the case.

“There is an underspend here to date. In an organisation like ourselves, 950 staff, people come and go.

“There are a number of vacancies that have taken longer than we would like to fill but they will be filled so that underspend on staffing alone will more than cover the costs of the other side.

“I’m not trying to belittle those costs - they’re still significant - but they will be found in such a way that there’ll be no diminution of service provision.

“There will be no services that will be stopped as a result of this court case and I want to make that absolutely clear.”

He concluded by saying that this wasn’t the first time that the council hasn’t received the outcome it wanted in court and it won’t be the last.

“I stand by the decision I took,” Mr McKeown added.