Family members who lost loved ones in an explosion in Creeslough, Co Donegal more than two years ago have asked An Bord Pleanála to hold an oral hearing as part of their appeal against the decision of Donegal County Council to permit the redevelopment of a service station at the site where ten people died.
On 19 February, the council granted planning permission to Vivo Shell Limited to redevelop the existing building at the site of the explosion which occurred on 7 October 2022.
The company's planning application proposes to demolish the existing building and erect a new building to include a shop, a post office, a beauty salon, fuel pumps and memorial features.
Phoenix Law said the families it represents "object strenuously to the redevelopment of the premises as provided for in the planning application".
It said that due to the complexity of the legal and human rights issues raised in a 25-page submission that "a fair hearing could only be met through an oral hearing".
It added that any oral hearing should include provision for further written submissions and evidence.
A spokesperson for An Bord Pleanála said it has "yet to make a decision on whether or not to hold an oral hearing".
An Bord Pleanála received six appeals during this statutory appeal period. Two appeals were valid. Four appeals were deemed invalid.
The two valid appeals were submitted on behalf of bereaved family members and survivors by Damien Tansey Solicitors and more recently, Phoenix Law Solicitors.
Phoenix Law said: "They [bereaved families] do not object to the rebuilding of a commercial shopping enterprise in the Creeslough village, they do however object to same being redeveloped on the very site their loved ones lost their lives".
Phoenix Law said the planning application caused immeasurable hurt and suffering and added that the site is a place marked by immense loss and trauma.
It said central to the decision-making process is the fact that the site of the explosion was the site of the single greatest loss of life in this country in recent times.
The submission said the site of the tragedy should be preserved as a sacred memory of the victims and it added that immediate commercial development poses an insensitive disregard to the grieving process.
Those who died were Robert Garwe and his five-year-old daughter Shauna Flanagan-Garwe; Catherine O'Donnell and her 13-year-old son James Monaghan; Jessica Gallagher; Martin McGill; James O'Flaherty; Martina Martin; Hugh 'Hughie' Kelly; and 14-year-old Leona Harper.
Appeal queries legal obligations
Phoenix Law Solicitors' submission on behalf of bereaved family members said the Planning Authority’s and An Bord Pleanála’s legal obligations are not confined to planning legislation - some observations in their appeal were made within that context.
It said it appeared the planning authority decision was contrary to planning and environmental laws and failed to respect the human rights of bereaved families.
The law firm listed several matters which it believed the local authority failed to consider under the European Convention on Human Rights Act 2003 and the Environmental Impact Assessment Directive.
It questioned whether there was full compliance with the Planning and Development Act 2000.
Phoenix Law said families were previously provided with a written undertaking on 12 May 2024 by the Planning Authority, that no redevelopment would occur until the conclusion of the outstanding investigations.
It said: "This expectation was fundamentally breached by the instant decision to grant planning permission".
The consideration and consultation given to the proposed memorial garden was also questioned in the submission.
Phoenix Law said the scene is the most important exhibit in ongoing investigations and to allow redevelopment would undermine confidence in the respective investigations.
It also said it is likely that "the families’ expert witnesses in the inevitable inquest/public inquiry will require to inspect the site as preserved".
In its planning proposal to Donegal County Council, Vivo Shell Limited expressed hope that "family members of persons who were injured or are deceased will see that much consideration and thought has gone into the application to be respectful towards all".
In its decision, Donegal County Council said it decided to grant permission for the development subject to ten conditions.
The conditions concerned measures related to orderly development, traffic safety, prevention of flooding, sustainable development, waste management, and protection of the environment.
The statutory period for lodging a submission on Donegal County Council’s decision to permit the redevelopment of the site concluded last week.
Out of the four appeals deemed invalid: one had an inadequate fee, one was late, one did not have the name/address of the appellant, and one did not include an acknowledgement by the planning authority of receipt of the submissions.
The appeal lodged by Damien Tansey Solicitors earlier this month challenged the decision of Donegal County Council on four grounds.
That submission argued material evidence on the site "must be preserved and maintained" until the ongoing garda and Health and Safety Authority investigations have concluded.
It also said as bereaved families have requested the Government establish a statutory inquiry - the site and should not be tampered with in any way until a statutory inquiry has concluded.
An Bord Pleanála is due to decide on the case by 14 July.
