1.3K 
A private vehicle removes that scrutiny. A private vehicle opens the door to corruption, as we well know from other WCC quangos.
However, Bord Pleanala did not make any reference to balancing when it decided on
At the time of seeking 34 extra houses in 2010, Sisk/Park had experienced about 18 to 24 months of falling prices and expected more.
Sispar’s and Sisk’s accounts show that:
Which is not to say that Stephen Donnelly was wrong to bring some pressure to bear. I like Stephen, though I don’t vote for him because I don’t agree with most of his policy positions, and I’ve seen him exert pressure directly on Sisk, on several occasions, to get action to improve things for the citizens of Greystones faced with this monstrosity for eight years now.
There she blows…
ome months ago, the members of Wicklow County Council voted to set up a Special Purpose Vehicle, a company called a 
Designated Activity Company under new corporate regulations.
ome months ago, the members of Wicklow County Council voted to set up a Special Purpose Vehicle, a company called a 
Designated Activity Company under new corporate regulations.Two directors were appointed, councillors Derek Mitchell and Gerry Walsh. But the purpose of the company, official title Greystones Harbour Property DAC, was not made clear.
At least, not until September’s council meeting, when a proposal was placed on the agenda to transfer publicly-owned land, more than 14 acres of it, to this company. The purpose, officials said in a letter, is to dispose of 14.5 acres of land to “ultimate purchasers” of residences or other properties in the harbour area.
At least, not until September’s council meeting, when a proposal was placed on the agenda to transfer publicly-owned land, more than 14 acres of it, to this company. The purpose, officials said in a letter, is to dispose of 14.5 acres of land to “ultimate purchasers” of residences or other properties in the harbour area.This company, now incorporated, is wholly owned by WCC.
Councillors objected. Specifically, Jennifer Whitmore, Tom Fortune and Nicola Lawless. So the matter was put back until Monday’s council meeting to allow Greystones District Council to consider the proposal.
Summer 2010. Jim Quinn Photography
Which they did, last week. And guess what? When it came to a vote, the two Fine Gael councillors, Derek Mitchell and Grainne McLoughlin voted for the land to be taken from public ownership and vested in this company. So did Fianna Fail’s Gerry Walsh. Councillors Whitmore, Fortune and Lawless voted against. Two independents and our Sinn Fein councillor.
So chairwoman Grainne McLoughlin’s casting vote decided that the split council approved the privatisation of 14.5 acres of public land at Greystones Harbour.
And, at Monday’s full county council meeting, the proposal was carried.
But not without more surprises. Sinn Fein councillor Lawless, who had actually supported a motion to refuse the transfer at the earlier meeting, did not vote.
She abstained. And so did all the other Sinn Fein councillors.
With Jennifer Whitmore absent from the vote due to her baby daughter having become distressed, Tom Fortune found himself almost isolated in the chamber, with only Pat Kavanagh and Tommy Cullen supporting his efforts to prevent this move by Wicklow officials.
So why did all the Sinn Fein councillors not vote against the privatisation by WCC of public land at Greystones Harbour and its handover to hedge-fund backed anonymous developers?
Why did they not vote to restore the 1.5 acres taken from the public park in 2012 and given to Sispar due to falling prices, but instead allowed it to fall into the clutches of these same hedge fund developers?
Get orders from HQ, did they?
Sisk’s new and secret partner is an Irish building company that is backed by a US-based hedge fund. Which will not reveal itself, even though this is a public project, a PPP. Why will it not?
Monday’s council meeting also discussed a proposal by Tom Fortune to return to the public park the 1.5 acres given as a gift to Sispar in 2010 when the poor dears were faced with falling house prices.
Keep in mind that this 1.5 acres will have 19 terrace houses built on it — so its current market value is somewhere in the region of €5.7 million. Sispar are getting this free, gratis and for nothing, and we are getting a substantially smaller public park overlooked by 34 dwellings.
The work begins…
Fortune and Whitmore rightly argued that house prices in our area have by now more than recovered above 2010 levels and there is therefore no justification for this free gift, taken from the public amenity space.
Only Tom Fortune and Tommy Cullen voted against stealing a huge chunk of Greystones’ public park and handing it over to a private property development company. Jennifer Whitmore had to leave the meeting before the vote due to her baby Caoimhe being in distress, but would also have opposed it.
None of the Sinn Fein councillors voted against it. All abstained, even Nicola Lawless who at the September meeting stood up and said she was opposed to it. What was on this ‘radical’ party’s mind? They might as well have voted for the privatisation.
The bottom line is this: transferring this land to a private entity, even if WCC owns it, means that is no possibility from now on of any scrutiny by the council.
Once it is transferred to the private DAC, councillors will no longer be entitled to ask questions or to scrutinise its operations.
This private company will ‘need’ offices; it will ‘need’ staff; expenses will have to be drawn. Contractors engaged to provide services — outside of public procurement rules and doubtless at inflated prices.
That looks like yet another pork barrel. Let’s see…
More board members will have to be appointed. They will have to be paid an honorarium — or maybe a salary, a bonus and a pension pot.
Junkets will have to be undertaken to study ‘best practice’ in Orlando or wherever. Very likely disgraced former county manager Eddie Sheehy and his grasping hands will appear, miraculously, on the board, perhaps along with his mentor Blaise Treacy or his acolyte Grainne McLoughlin…
Junkets will have to be undertaken to study ‘best practice’ in Orlando or wherever. Very likely disgraced former county manager Eddie Sheehy and his grasping hands will appear, miraculously, on the board, perhaps along with his mentor Blaise Treacy or his acolyte Grainne McLoughlin…In other words, so many sticky fingers in the till that WCC will be lucky to see any of the €14 to €17 million the land is worth.
But is a private company needed? The simple answer is NO.
The original plans…
The PPP project is already managed by a joint venture, Sispar, which includes WCC on the board. WCC owns the land in question. Sale to “ultimate purchasers” could be managed and accomplished via this company, itself a SPV to manage the Public Private Partnership which the harbour project is.
The fact is that, given the state of affairs with regard to corruption at Wicklow County Council, transferring disposal of the land into a private company is nothing but an invitation to corruption.
The new plans…
A PPP is subject to some supervision and public scrutiny, by state agencies such as the PPP Unit in the Department of Finance, by the council itself, and by the office of the Auditor & Comptroller General.
Why can the money for the land not be paid direct to WCC? Paid direct, it would remain under public control AND scrutiny — the Auditor & Comptroller General would even have a role.
A private vehicle removes that scrutiny. A private vehicle opens the door to corruption, as we well know from other WCC quangos. 
A private vehicle, in the cesspit of WCC, is in fact an open invitation to dip hands in the till.
It would create a similar situation as exists in relation to the Wicklow Enterprise Park, for example, where board members and others profit from its operations. Just ask our Eddie how he got so plump.
Basically, it creates a fat, greasy, jam-full pork barrel out of what is public property.
Just recall the sale of the Barracuda site in Bray for €10,000 — to The Three Trouts site scandal, with a chunk of flood plain bought at an absurdly inflated price of several million.
The criminality, cover-up, concealment and refusal to accept responsibility in the case of the three dead firemen in Bray.
The conspiracy by some WCC officials to turn the county from the Garden of Ireland into the Garbage Dump of Ireland by not merely allowing, but actively encouraging illegal dumping of toxic waste in the county.
North Pier May 2018
I could go on.
This move is an unnecessary privatisation of a public asset, with no guarantee that any of the money earned from sales of this public asset will ultimately return to WCC.
The Land Subtracted From The Public Park
A Greystones planning report dated 2010 states that the public park area was reduced by approximately 0.5 hectare (1.25 acres) by devoting the south west corner of the park to additional housing. It also states that the exclusion of a proposed block from the original plan to give more public space at the southern end reduced the area available for development by 0.52 hectare — so it appears that these balance out.
However, Bord Pleanala did not make any reference to balancing when it decided on 
removing 0.52 hectare from the area available for development in 2006/7 — the site boundary between the harbour proper and the public park remained unchanged and as originally proposed, and that was what ABP ordered.
removing 0.52 hectare from the area available for development in 2006/7 — the site boundary between the harbour proper and the public park remained unchanged and as originally proposed, and that was what ABP ordered.Only in 2010, in response to Sispar invoking the contract’s market change clause, was it proposed to change this boundary and take space from the park for houses.
Market Change Clause
A ‘market change clause’ in the contract was applied, in director of services Sean Quirke’s word, to “mitigate” the effect of decline in property prices from 2008 onwards on the financials of the development.
At the time of seeking 34 extra houses in 2010, Sisk/Park had experienced about 18 to 24 months of falling prices and expected more. 
As they had no plan to start construction, it was clear that no units would be built until after 2011 when Bord Pleanala ruled on the application. Quirke says as much in emails to inquiries from local councillors.
As they had no plan to start construction, it was clear that no units would be built until after 2011 when Bord Pleanala ruled on the application. Quirke says as much in emails to inquiries from local councillors.Property prices in the area, best considered as part of the south Dublin region for this purpose, have now recovered to higher than 2010 prices and significantly higher than prices in the second half of 2011. House building has now resumed in several places in the District, including a substantial development near Blacklion, with a total of ±5,000 units approved only months ago.
If there was ever a justification for a market change “mitigation”, that no longer exists.
As well, a concession given under a market change clause is subject to the proviso of “use it or lose it” — to proceed diligently to build out the development. As the developer made no move to use it, they should certainly now have lost it and the land should have been reincorporated into the public park.
But that didn’t bother our doughty councillors, oh no.
Parent Company Guarantee
Company accounts of the two companies involved until Park pulled out both acknowledge that parent company guarantees are in place for the development.
Sean Quirke acknowledged this in an email in January 2014. Here is the question and answer (Quirke’s answer in italics):
Funding
When the original contract was signed was there a parent company guarantee to provide full finance to complete the development irrespective of changes in the housing market or the economy in general. If so was this requirement waived at some stage? — This was a requirement and has not been waived.
FundingThe guarantee from Sisk and Park was given “jointly and severally”, meaning that either or both would be obliged to fulfill their obligations under the guarantee. When Park withdrew, the guarantee was now entirely Sisk Group’s responsibility — and, it appears, still is..
WCC uses the argument that the entire project would have been abandoned without the additional land with planning permission being granted.
This is not so — as there is a parent company guarantee in place the development would have to be finished out regardless of events like falling house prices. And if another developer were to have finished it — Sisk would have had to pay the cost!
This is not so — as there is a parent company guarantee in place the development would have to be finished out regardless of events like falling house prices. And if another developer were to have finished it — Sisk would have had to pay the cost!The NAMA Factor
In 2012, the developer was granted a significant debt forgiveness by NAMA of around €30 million, as was reported at the time. When the Sisk companies filed their accounts for that year, the haircut was confirmed by analysis of those accounts.
Sispar’s and Sisk’s accounts show that:
At the time of transfer into NAMA, the company had drawn 
down approximately €38 million from AIB Sisk claimed they spent €14 million of own funds to complete the marine works — but it wasn’t charity, oh no: if they had not completed, the work would have been uninsured in case of, say, storm damage
Sisk claimed the final total cost of the marine works was €70 million
Which means that cost of credit (factored into the business plan) was around €18 million
The €30 million debt haircut therefore amounts to around 80% of what Sispar borrowed; about 60% of the cost of construction of the marine works, or about 43% of the total cost including cost of credit. €30 million is more than enough to compensate for the difference in house prices between 2007 and now.
In fact, you would wonder why NAMA didn’t offer to refund the interest on the loan as well, they were being so generous. But why were they? After all, at any time NAMA could have called in the loan and Sisk, flush at the time with a big cash pile, would have been easily able to pay it back.
Building houses will not begin until 2017 and will not finish until 2020, according to Sisk’s own schedule. By then, according to most agencies and commentators, the property market will once again have returned to boom levels and so Sisk’s debt haircut and the free public park land’s value will be pure profit for the company and its secret partner, the mysterious hedge fund-backed company.
For these reasons, too, the land subtracted from the public park should have been restored to it. Not handed over to a private company.
Pic: Chris Dobson
But only two councillors out of 32 felt this was a good idea.
So now, the pork barrel is open for business and the greedy can get their arms greased, right up to the elbows.
And nobody can even ask about it. That’s what ‘private company’ means.
The above article is unedited – the words, and opinions therein, are all Basil Miller’s own
NOTE BY Basil Miller 8th October 2015
Donnelly
This morning, 8 October, Stephen Donnelly TD asked me to withdraw the statement that he had “facilitated” the debt write-down for Sispar.
I told him I would re-examine the record of what was said and done around that time and if it supported his request, I would withdraw the statement.
I have done so. The saga, and I include the actions of all principals, does not make for pretty reading, but whatever about that, it certainly does not confirm that Stephen Donnelly in any way sought to achieve a debt writedown for Sispar or encouraged NAMA to do what they did.
So I have removed that statement from the article above. And I don’t attribute such a motive to deputy Simon Harris either — his dealings with NAMA concerned the La Touche site.
26JAN16
However, the whole episode at the time illustrates the danger of interceding with an outfit like NAMA on behalf of a private developer.
Both TDs had the best of motives, one assumes. Donnelly, in his 2011 letter to NAMA (see below), was seeking to get them to speed up consideration of a business plan which Sispar had submitted to the bad bank, and which he hoped would lead to the construction of the clubhouses and other public facilities along with the much-hyped Primary Care Centre.
NAMA
A TD asks NAMA to speed up its examination of a developer’s business plan, with the objective of achieving something for the community which had been suffering four years of disruption, deprivation of amenities, and unconscionable delay with the harbour project. Very laudable.
Because NAMA did not approve the business plan and did not release funds to the developer. September 2011 came and went with no response, no start to building work, no clubhouses, no PCC. And that’s how it went for nine or ten months more.
So the question is, if the hare had been let sit and no representations of any kind made to NAMA, would that entity have been so generous to Sispar in 2012?
4 comments
Very worrying but not surprising
This is a serious matter, and it is not explained away by Director of Services Sean Quirke’s second letter to councillors on the matter, which refers only to an obligation to transfer the land.
As Mr Gerrard points out above, there was NO NECESSITY for a separate and private company to handle the final transfer of this land. The Council could have handled that itself.
The only transfer obligation is that ownership the land has to be transferred to the final, or ‘ultimate’, purchasers — the people who buy the houses, flats, and commercial space.
Neither Quirke, who is in charge of this PPP project on behalf of the local government authority, nor Mitchell, who signed the contract, have explained why this move was seen as necessary. Which is all too typical of how this disastrous project has been handled since Mitchell put his signature to that contract.
And this is a move which, given such matters as the Barracuda scandal, the Three Trouts land scandal, the illegal waste disposal scandal, and the matters of Wicklow Enterprise Park and Wicklow Historic Gaol, is an open invitation to the corrupt to get their greasy fingers deep into this new till.
Barracuda kind of sums up the stink of corruption at WCC — land worth two to three million euros sold for €10,000 to a business colleague of the sitting council chairman, Fine Gael’s John Ryan. And without even fulfilling the requirements under the various Acts governing sale of Council property!
The terms of the planning approval have been broken wholesale down at the harbour, and WCC does nothing to enforce them.
Worst among these is the complete neglect of coastal protection obligations set out in that approval, as Mr Gerrard points out. This neglect is the reason that it is now hardly possible to walk the North Beach, and the reason why Greystones is in danger of losing completely this historic amenity.
But both Mr Quirke and Mr Mitchell will deny that this is so, when a blind man can see otherwise.
Quirke will say blandly, as he has done before, that the initial phase of coastal protection works was to be done “during the course of construction” and that it will be done in that timeframe.
But he is wrong, and seems to have deliberately introduce this mantra to excuse Sispar from this admittedly costly obligation.
Because the original wording, and the applicable wording, in respect of coastal protection was that capital beach nourishment amounting to 30,000 cubic metres of technically-specified shingle was to be placed on the North Beach “during construction of the marine works”, meaning the harbour itself. Not alone that, it was to be placed during the very first year of construction, 2008.
Why was this? To offset the effect of the huge new seawalls on coastal erosion.
It wasn’t done. Only 10,000 cubic metres out of 30,000 was placed, which is why there has been a huge increase in the rate of erosion and why the beach is virtually unusable except at low tide.
Apart from being a breach of the planning approval granted by Bord Pleanala, it is criminal negligence. Both WCC and Sispar have completely turned their backs on the obligation to protect the coastline between the harbour and Bray Head. And they have lied publicly about that obligation.
And Mitchell is complicit in this, though he too would deny it.
His approach in relation to the land transfer to a private company is typical of Cllr Mitchell. His approach is to muddy the waters of discussion and then fill those muddied waters with red herrings, and he doesn’t answer any points that are inconvenient for him.
In this case, he doesn’t tell us why the 1.5 acres taken from the public park to ‘mitigate’ market conditions for Sisk have not been returned to it, even though the market has now risen above the levels at which the ‘mitigation’ was applied and are significantly higher than 2011 prices.
He doesn’t deal with the outrageous cancellation of most of Sisk’s debt to NAMA.
He doesn’t answer the FACT that SICON, the parent company of Sispar, is obliged under contract to finish the development “diligently” and that if it does not, it must pay the costs of another contractor doing so.
And he doesn’t even dare mention the egregious levels of corruption which plague our county.
Just to show how he reacts when pinned by someone who knows in detail what he is talking about, let’s return to the Community Plan proposed by Tom Fortune and Stephen Donnelly.
When it was first proposed, Mitchell derided it as too costly and claimed it would cost around €14 million. An exchange of letters subsequently took place between the professional expert who costed the Community Plan for Fortune and Donnelly, John O’Brien, as Mr O’Brien felt his professional competence was being called into question by Mitchell.
The two letters are appended below.
It is very clear from these two documents that Cllr Mitchell was made fully aware of the contents of the Greystones Harbour Community Plan and of the detailed costings prepared by John Farage O’Brien Dispute Resolution Consultants.
His incorrect assumptions and errors of fact were corrected extensively and in detail in Mr O’Brien’s letter.
Mr O’Brien offered to meet Mitchell to discuss and engage on further clarification, with a view to achieving agreement on what could be done to advance the measures suggested in the Community Plan. Mr Mitchell did not accept this offer, and did not reply to Mr O’Brien in any form.
He did, however, continue to repeat publicly his false and misleading statements, even after having been made aware of the facts.
Which is typical of his modus operandi, and which he is continuing to apply in the present case.
***********************************
THE TWO LETTERS
Exchange of letters between John O’Brien, principal of John Farage O’Brien Dispute Resolution Consultants, and Cllr Derek Mitchell (Fine Gael).
In relation to the costings of the Greystones Harbour Community Plan
Cllr Mitchell’s letter to John O’Brien is listed second for reasons of clarification
In Mr O’Brien’s reply to Cllr Mitchell, his points of clarification in response to Mr Mitchell’s remarks are shown in square brackets
These clarifications are sometimes followed by supplementary questions to Mr Mitchell seeking explanations or further information. These are shown in twirly brackets.
Mr Mitchell did not reply to this letter.
––––––––––––––––––––––––––––––––––––––––––––––
Cllr. Derek Mitchell (FG), Kiltoorish, Manor Avenue, Greystones, Co. Wicklow. Phone/Fax 01-2874115(H), 087-2574969, 1st December, 2013. [email protected]
WWW .derekmitchell. ie
Mr J O’Brien,
GUBOH,
[[ Clarification 1: Our report is not a GUBOH document. This report was prepared by professional Chartered Quantity Surveyors and Civil Engineering Surveyors to review and comment on the contents of Sisk’s letter to the town council dated 16th October 2013 and their detailed costings of the community plan which were issued on 31st October 2013 – please see section on Brief page 7 of 15.
I would have you note that this is a professional report. The company which prepared it, and its principals, stand over the report in its entirety and in detail. ]]
The Mews,
Wicklow Arms Complex,
Delgany
Dear John,
Thanks for your extensive report and subsequent letter to Simon Harris T.D. You asked us to comment on it and also the Plan of your group. I have given opinions at various Town Council meeting where you were present.
Community and Club Area. I do not agree with your proposal to turn this into a public picnic area. The Social Balance of this project is tied up in the clubs use of the harbour. The Sea Scouts, Rowers, Anglers and Divers are against this and it was not discussed with them.
[[ Clarification 2: This is not my personal proposal, this is what was required by the Community Plan. The area in question, during the public consultation period which preceded finalisation of the Community Plan, was deemed an eyesore in its current state and needed to be addressed. There were also many requests during the public consultation period which preceded finalisation of the Community Plan to connect the Cliff Road to the harbour for pedestrians.
The report deals only with the disparity in costings between Sisk and our budget costings in September 2013. The costings from Sisk to connect the existing RC Stairs from Cliff Road to the harbour was priced at c.€192k. We costed this aspect at €10k as the RC stairs are already constructed. ]]
{{ Question 1: Given that the community buildings may not be built for some time, what do you suggest is done to clean up this focal area which, in its current state, is a building site which takes away from the visual amenity of the harbour? }}
Sand on Beach. Waves will wash sand into the entrance channel which will silt it up. I don’t agree with this. We have a particularly deep entrance which is an important feature of the harbour for a variety of nautical reasons. It will also need a foreshore licence which will take years and cost.
[[ Clarification 3: (A). The creation of a sandy beach within the harbour is a requirement of the scheme under the contract tendered, and an objective under the Greystones Harbour and North Beach Action Plan 2003, which will need to be replenished as a contingent liability by Sisk & WCC *.
We received multiple suggestions during the public consultation period which preceded finalisation of the Community Plan to place sand at this beach for reasons of visual and social amenity. Many people complained that the present shingle beach is littered with rubble.
(B). The proposal is to place beach sand on the flat area, well above the high water mark, where it will be safe from tidal or wave action, to act as an amenity mainly for children, as the old harbour beach did. According to expert testimony contained in the original EIS, the risk of this area being washed away is a 1:100 year event.
* [Ref: Variation to Wicklow County Development Plan 1999 Made 3rd November 2003 Variation No. 6.2003, page 5 ff. See also terms and conditions of the planning approval by ABP granted on 7 of August 2007 under application reference number 27.EF2016] ]]
{{ Question 2: Given that this is already a requirement under the contract tendered and given that in your view it should not be done, are you suggesting that Sisk should refund the amount tendered for this item, including replenishment over the 30 year concession period, to be given back to the community? }}
Erosion. Your spokesperson Deputy Donnelly states the ‘proposed changes’ include ‘Coastal Protection’ along the whole plan North of the wall. You have a complex argument that Sisk have saved €850,000. These statements seem contradictory. I enclose a copy of my leaflet which describes the situation regarding erosion. In summary it is in accordance with planning and there is no deficit contrary to what you suggest. You don’t seem to have costed what Donnelly describes as a change.
[[ Clarification 4: The term ‘Coastal Protection’ has been misinterpreted, deliberately or otherwise, to mean rock armour or rock revetment all along the North Beach. This not what is proposed in the Community Plan. What is proposed is that the three measures approved by Bord Pleanala as those necessary to maintain erosion rates at the established historical annual rate should be implemented as mandated by the Bord. At present, they are not being implemented.
Please accept my apologies if you found our value engineered saving of €850,000 to Sisk complex. However it is not an argument. ARUP in their 2011 report* have stated that Sisk have unilaterally changed the method of controlling erosion along the north beach without the agreement of the stakeholders and will continue to do so going forward.
If you take €25/M3 for the supply and placing of capital beach nourishment which was prescribed by the EIS at 30,000m3, to be placed during the construction of the breakwaters, Sisk decided to place only 10,000M3. This is a saving to them of €500,000.
Common engineering sense in the original EIS dictated that the completion of the newly constructed northern breakwater would be the trigger for accelerated erosion in this area. Experts both for and against the planning proposal agreed. It is 3 years since it was built and up to 6,000M3 per year of annual beach nourishment was to be placed, according to the commitment in the 2007 EIS, to meet the EIS target of maintaining erosion at the historic rate of 600mm per year at the cliff toe. Sisk has not placed any of the 18,000M3 of shingle which it was obliged to, yielding the company a further saving as follows: 18,000M3 @ €25 = €450,000.
ARUP state in their 2011 report* that 6000m3 of accretion has been moved around — but not imported. The Department of the Marine does not allow any more than a total of 25,000m3 of accretion to be ‘moved’ around over the 30 year concession, equating to c.830M3 per annum.
Please also note, that The Dept of the Marine in fact removed the ‘cap’ of 6000m3 of imported replenishment and stated that it is the responsibility of WCC & Sispar to meet the target levels even if that means importing and placing more than 6000m3 per annum.
Controlling the erosion along the north beach was described at the time of tender by the Department of the Marine as a “substantial commitment”. This kind of erosion control has been carried out all over the world since the 1920s since it was first implemented at Coney Island New York. It is well known to be a very effective control measure but also a very expensive commitment.
I have attached ARUP’s report of October 2011 for your convenience.
* Sispar Construction Limited: Greystones Harbour PPP Beach Monitoring Report – Year 3. 119538-03 Final | 17 October 2011 ]]
{{ Question 3: ARUP have advised of Sisk’s unilateral decision to value engineer their capital and contingent liability [without agreement from the stakeholders], which has on the face of it already saved the company circa €850,000, and will continue this strategy during the concession period by placing only 1500m3 per annum (costing c.€37k). You state in your recent information leaflet that a total erosion of 21m over 30 years is the target limit. My question is, how will this target limit be maintained if the measures necessary to achieve it are not being implemented, as is the case at present? }}
Market Change Clause. I met you about 9 months ago and explained this to you. You did not believe me at the time. Cllr Mcloughlin went to see it and confirmed it.
[[ Clarification 5: There is no mention of the market change clause in the report. For your information, three years ago I had a conversation with Sean Quirke who told me of the existence of the market change clause in the contract, and again he confirmed at the Town Council meeting in September 2013 the presence of such a clause in the contract and he also confirmed, in response to Cllr Fortune’s question, that it was not in the tender documents.
Having not had sight of such a clause it would be unwise for me to prejudge where it might sit in the contract hierarchy and therefore the implications of activation, both direct and indirect. Such a clause should not be read in isolation. However, as you indeed signed the contract with Sispar on behalf of WCC, I am sure you did so with a full knowledge, or advices, regarding Irish and EU Procurement Legislation and practices. At this time, I am unable to ascertain if such a clause , perhaps inserted post tender, would be in compliance with EU Procurement legislation and practices. I am unable to comment further. ]]
{{ Question 4: Given the existence of the market change clause in the contract, which has already been invoked — and given that Sisk were given, inter alia, an additional 34 sites on land subtracted from the public park to make the project viable, how does this fit with clause 16.7 in the tender contract, which obligates the Contractor ‘to proceed diligently to completion’? }}
Your spokesperson Cllr. Fortune could have looked at it on a similar basis but does not appear to have done so.
Your discussion of this is totally negative.
{{ Question 5: Can you clarify what “discussion of this is totally negative” in the report? }}
In 2007 the harbour had been derelict for a century. Now it is the 4th best in Ireland, a very major achievement and benefit. This would not have happened had the Council not accepted this market change clause. This has been done at virtually no cost to the taxpayer, about the only project, public or private, which has not cost the taxpayer a fortune. Further details of this achievement are in the leaflet.
You ignore all this.
{{ Question 6: I do not understand what it is that I am supposedly ignoring in the report. Can you please clarify what you say I have ignored? }}
If the Council took this back it would be liable for damages to the cost of building the harbour, around €70m.
[[ Clarification 6: There is no mention of the market change clause or the council ‘taking back’ in the report. ]]
{{ Question 7: Can you clarify your understanding of what constitutes default events under the tender contract and the mechanisms open to WCC? My understanding is clear and WCC cannot be sued for €70m. }}
Having seen the mess the Council has made of running Bray and Arklow harbours, I would not have confidence in it completing it. A far better result will be likely leaving it in Sisks hands provided they make appropriate progress.
[[ Clarification 7: The progress and services that Sispar are to provide are as agreed in the concession agreement. The project programme is that as agreed in the Concession Agreement Schedule 3. At all times the concession company is required to ‘diligently and expeditiously execute the Works to procure that they are completed in accordance with the Programme to such standard as would require the issue of the Final Completion Certificate’.
As you are aware, other than works completed by BJ Marine in 1Q 2013, no progress has been made on permanent works since mid-2010. As you have deemed yourself ‘sceptical’ of the dates that Sisk provide, it is not possible to understand what you mean by ‘appropriate progress’ or how at least ‘appropriate progress’ can be measured in terms of a contract. ]]
Additional Access to North Beach for Emergency vehicles and people at Gap Bridge site. The cliffs are around 30-40m high here. Vehicles and people cannot jump this distance to the North Beach. You do not seem to have allowed for any structure or method to get them to the beach, especially as the coast is predicted to continuously erode. A part of your costing document seems to suggest that access will be via the existing steps. This is not ‘at Gap Bridge site’ which many of your supporters have signed up to.
[[ Clarification 8: The cliffs are not as you state 30 to 40m high at the site of the Gap Bridge. The ‘cliff’ at the Gap Bridge is in fact no more than 5 or 6 metres high, if that. There is also a partial ramp to the beach already at this site. The Community Plan proposes vehicular access to the vicinity of the north beach for emergency purposes — this need not necessarily be onto the north beach via the existing level crossing at The Grove/Ennis Lane.
You should refer back to the 2011 EIS Environmental Impact Statement:
‘The clay cliffs start to the north of the new Harbour at a height of approximately 3m. The cliffs increase in height extending northwards reaching heights of between 15 and 20 m.’
‘It is important to note that emergency vehicular access is available to all relevant areas of the development.’
(Section 2.3.5 Page 43, Description of Development)
‘The cliff re-grading shall provide high level and low level walks with occasional access to the beach provided with appropriate planting on the slopes and sides of the walkways….. Clear access to the [North] beach and linkage to the coastal footpath shall be provided. Provision shall be made for vehicular access onto the [North] beach in order to allow the beach to be used for dinghy launching. Access shall be from a public car park where public toilets and change facilities shall be provided.’
(Section 2.4.18 Page 58, Description of Development) ]]
{{ Question 8: What proposal do you have for giving emergency access to the North Beach? }}
Boardwalk
The pictures in your document are of a pedestrian structure. The planning permission was for a heavier structure for vehicles. We should stick to what is allowed.
[[ Clarification 9: Agreed. Sisk has requested a Value Engineering proposal to reduce this structure to a pedestrian structure. They state a pedestrian structure in their costings. ]]
{{ Question 9: Can you confirm if Sisk’s Value Engineering proposal for a pedestrian structure has been accepted by WCC? }}
Costs.
We asked for an independent view of the costs. I would welcome an agreed version. The main cost differences are the no Protection and the no Gap bridge access. The Plan you printed and got people to sign up to is not what you costed. I think the costs are a multiple of the amount stated.
{{ Question 10: Could you rephrase your query here, I’m not sure that I understand what you are trying to say. In particular, can you provide any evidence for your belief that ‘the costs are a multiple of the amount stated’. }}
Who is to pay for the costs of your plan?
[[ Clarification 10: Sisk ]]
As mentioned in the leaflet I asked Sisk in July to implement 5 points for next Summer and another community group is discussing some suggestions with them. The best and quickest way to get the project finished is through cooperation and discussion.
{{ Question 11: I agree that ‘The best and quickest way to get the project finished is through cooperation and discussion’. On the basis of promoting such cooperation and discussion, could you arrange for me to meet the other community groups that you mention in order to clarify to them both the Community Plan and the professional costings of it? Community cooperation is at the heart of the solution to the problem the town faces. }}
Your way of confrontation will lead to delay, have significant legal costs and is already putting visitors off coming to the town.
{{ Question 12: Can you please identify what elements in the report are confrontational, what will incur legal costs and how the report is ‘putting off visitors coming to the town’? }}
Sincerely,
Derek Mitchell
Mitchell did not respond either with clarification or answers to Mr O’Brien’s questions.
I have read with interest the detailed and thought provoking article by Basil Miller on the Greystones Harbour DAC and the response to it by Councillor Mitchell.
Councillor Mitchell states that “The harbour has been rebuilt according to the Council’s plan and now the Council must transfer the land so the homes can be built.” However
the council is transferring the land to a SPV, which in turn will sell or transfer it to each ‘ultimate purchaser’. There is absolutely no obligation on the council to create this SPV as the council could sell or transfer direct to the purchaser. The councillor’s contention that “If the Council refused to transfer the land it would be in Court with large legal bills and compensation” does not seem logical as there is absolutely no obligation to handle sales of the land via a separate entity. The Council itself could sell the land either by the sale of all 13 acres direct to Sispar or to the ‘secret developer’ requiring one vote of approval by a council meeting under Section 183, with an indexation clause to cover increases in market value up to sale to final purchaser or by the sale of each plot to each ultimate purchaser with Council approving each one. The councillors seems to be scare mongering with the claim that “work would cease on site and we would be left with many years more of an ugly construction site” if this unnecessary SPV transaction was not done. A separate company is totally unnecessary as the Council owns the land and can dispose of it in an appropriate manner as vendor. Whether the Council or a separate entity sells the land would have no effect whatever on the builders’ schedule who will only start when they think the market is in their favour. This is especially so as the Council never used the powers under the contract to compel them to finish. The Councillor showed little concern about the protracted delays on this stalled project until now. The project which was supposed to have been completed in 2012 is still only at stage one. His silence as the entire harbour area was left as an abandoned wasteland for years on end was deafening. The burning, unanswered question remains as to the reason behind this SPV.
The councillor fails to explain to the public why the 1.5 acres taken from the public park to ‘mitigate’ market conditions for Sisk have not been returned to it, even though the market has now risen above the levels at which the ‘mitigation’ was applied and are significantly higher than 2011 prices. He also makes no comment on cancellation of most of Sisk’s debt by NAMA. As the councillor who signed the PPP contract in the first place he should be aware that SICON, the parent company of Sispar, is obliged under contract to finish the development “diligently” and that if it does not, it must pay the costs of another contractor doing so. At every turn Wicklow County Council, which was supposed to have been monitoring this PPP, has turned a blind eye to non compliance such are the failure to adhere to beach nourishment obligations.
At a time when the entire project stalled for a number of years the councillor strongly opposed the Community Plan for the harbour proposed by Stephen Donnelly TD and Cllr Tom Fortune. In an attempt to discredit this Community Plan he incorrectly stated it would have cost €14 or €15 million, when in fact it would have cost Sispar about €300,000! Indeed there appears to be “many wild suppositions and errors” in the councillor’s response to Basil Millers thought provoking observations.
In 2003 the Council agreed the plan where the harbour would be rebuilt in return for building 375 homes, later reduced to 358 homes. The harbour has been rebuilt according to the Council’s plan and now the Council MUST transfer the land so the homes can be built. Nobody would have invested €70m without a binding legal contract.
Cllr. Whitmore, supported by Basil Miller, urged the Council not to transfer the land. If the Council refused to transfer the land it would be in Court with large legal bills and compensation. More seriously work would cease on site and we would be left with many years more of an ugly construction site. We need the project finished and I think it was very silly for them to try to prolong it. Fortunately less than 10% of Councillors agreed with them.
A phasing plan for the homes, the Boardwalk and 15 acre Public Park is now being developed as a result of the decision.
Basil Miller’s statement that Sispar is a PPP and The Council is represented on it is wrong. It is entirely the builders and his suggestion of handing the land to them would result in the Council having much less security over getting the above facilities. There are many wild suppositions and errors in the article.