Granting Bessborough planning would run counter to government policy, hearing told

An Bord Pleanala granting permission to a developer to build an apartment complex on the grounds of a former mother and baby home in Cork would amount to a complete repudiation of Government policy regarding the legacy of such homes, a planning hearing was told on Friday.

Barrister for the Cork Survivors and Supporters Alliance (CSSA), David Dodd BL said that if An Bord Pleanala was to grant planning permission for 179 apartments on a site in the former Bessborough mother and baby home in Cork, it would be contrary to government policy regarding such homes.

“If An Bord Pleanala grants planning permission to build apartment blocks on that site, it is going to be an absolute clash with government policy as expressed by the Minister for Children, Roderic O’Gorman in his apology and desire to rectify or remedy the wrongs of the past,” he said.

Mr Dodd said in his closing submission to the An Bord Pleanala oral hearing, chaired by Senior Inspector, Karen Kenny, that An Bord Pleanala had to take account of the common good when deciding on the application for the complex which the CSSA says will cover a portion of a Children's burial ground in Bessborough.

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“The common good is easily stated - what we and people want now is the wrongs of the past to be rectified in so far as that is possible and nobody can rewind the clock or cure the hurt but in so far as we can take small actions to make good what happened in the past, we should take them.

“The wrong of the past is that the children who died in this home were simply discarded, they were brought to a place and hidden in the ground without any marking - they were buried without anything you would with a proper burial and what we are trying to do in 2021 is rectify that.”

However counsel for developer MWB Two Ltd, David Holland SC disputed Mr Dodd's contention that granting planning permission would fly in the face of government policy and pointed out that an apology by Minister O'Gorman did not amount to a government policy on Mother and Baby Homes.

Mr Holland said he agreed that ABP must have regard to Government policy when it comes to make its decision on the application and in that regard the planning application was in compliance with government legislation to encourage housing construction during a housing crisis.

He said as regards Government policy to deal with the legacy of mother and baby homes, there was no bill but simply a scheme of a bill which was still at a pre-legislative examination stage before an Oireachtas Committee and An Bord Pleanala should be cognisant of that in its deliberations.

“The Government has not proposed a bill and no bill has been debated by the Oireachtas - we are at a pre-legislative examination stage and that is very different in law - statutory decisions must be made on the law as it stands, not as it might be on some indeterminate date in the future.”

Mr Holland said he agreed the common good was central to the issue but it only arises if there is a children’s burial ground on the proposed site and if it isn’t there, to refuse the planning permission would be disproportionate in law with consequences for the developer who also has rights.

Mr Dodd said a key issue for ABP to decide was whether a children’s burial ground, which both sides agree exists, is located in a field where it is marked on a 1950 ordnance survey field trace map as the CSSA believes or in the nearby nuns’ cemetery where the developer submits it is located.

He said that if An Bord Pleanala finds the children’s burial ground is in the field then it must not allow the development to proceed as it will involve building two apartment blocks which will intrude on the children’s burial ground and a third apartment block which will overlook it.

And he strongly rejected an interpretation by a cartographic expert for MWB Two Ltd that the children’s burial ground was in an enclosed area which was opened as a nuns’ graveyard in 1956 which would run counter to the practice of burying infants and nuns separately in such homes.

Mr Dodd pointed out that the Commission of Investigation into Mother and Baby Homes, which found that there were no burial records for some 923 babies who died in Bessborough, had discounted the possibility of the infants being buried in the nuns' graveyard.

“You are being asked to find in the teeth of what the Commission of Investigation found over a five year period which is that the children’s burial ground is not in the nun’s cemetery - you are asked to turn that on its head and find that the children’s burial ground is, in fact, in the nuns’ graveyard.

“At an early stage, the Commission thought it unlikely that all of the children who died in Bessborough were buried in the burial ground, the nuns’ graveyard as it was not nearly large enough for the number of children involved,” said Mr Dodd.

The Commission was also sceptical about such a thesis because it felt that it was “unlikely that children would be buried in the same burial ground as members of the congregation,” said Mr Dodd, saying such joint burials did not happened any other mother and baby home in ireland.

“The reason it doesn’t happen is the mindset of the time when these events were happening - the idea a nun would buried with what they termed ‘fallen women’ and illegitimate children - many of them hadn’t even been baptized is an anathema to the Catholic church and the views of the nuns.”

However, Mr Holland pointed out that while it might be correct as a general observation to say that deceased infants and nuns were never buried together in any mother and baby home in Ireland, it could not be asserted as general rule as evidenced by the case in Bessborough.

The Commission of Investigation had established that one baby was buried in the 1990s in the nuns’ graveyard in Bessborough so there was a plot of the angels in the nuns’ graveyard and it was wrong to say infants could not have been buried in the nuns graveyard as his client believed happened.

Mr Holland also told the hearing that MWB Two Ltd would welcome any reasonable condition regarding the appropriate memorialisation of the legacy of the mother and baby home and would facilitate the survivors in the creation of a memorial which it would fund and locate in a publically accessible space.

“Specifically the applicant would welcome a condition for the location of such memorial at the green area between the estate road and the site boundary just north of the Folly as depicted in the site layout plans and the dedication of such green area generally to that memorial,” he said.

MWB Two was also proposing that a further site investigation of the area north and north west of the Folly should take place with a view to confirming and quantifying the presence, absence and/or location of human remains but not with a view to exhuming them, said Mr Holland,

The site investigation would be directed and supervised by a professional archaeologist to be appointed by Cork City Council and the finding of any human remains would be reported to Cork City Council, the Coroner, the Gardai and any state body dealing with the mother and baby home legacy.

The n Bord Pleanala oral hearing concluded the taking of evidence yesterday with closing submission and ABP senior inspector, Karen Kenny will now prepare a report on the hearing with a recommendation which will be forwarded to the board to enable it to come to a decision on the application.