3 4 CHAIRMAN: Good morning Mr. O'Neill. 5 - The Tribunal of ...

11 THE TRIBUNAL RESUMED AS FOLLOWS ON THURSDAY,2 20TH JANUARY 2005, AT 10:30 A.M.:34 CHAIRMAN: Good morning Mr. O'Neill.56 MR. O'NEILL: Good morning, Chairman. Mr. Tiernan, please?78 CONTINUATION OF QUESTIONING OF MR. JOSEPH TIERNAN9 BY MR. O'NEILL AS FOLLOWS:1011 At the close of the evidence yesterday we were discussing a letter which had12 been written to you by Noel Smyth & Partners acting for a company called13 Elangrove Limited. And content of that letter we see on screen.1415 JUDGE FAHERTY: 2397 I think, Mr. O'Neill.1617 MR. O'NEILL: 2397.1819 JUDGE FAHERTY: Is that it?2021 MR. O'NEILL: We went through this letter yesterday, Mr. Tiernan. And I22 think you agree that what was revealed as an issue here to you is the fact that23 Mr. Goodman's interests apparently now reflected in this company, Elangrove24 Limited, had, according to Mr. Smyth not been protected in the transaction25 which involved the sale by Southfield of its interest to Vino and the onward26 sale to you; isn't that right?27 A. Yes.28 Q. 1 And obviously this was a matter which would be of concern to you as the party29 who was now the purchaser of these lands if your contract was so be set aside30 in some way by Mr. Goodman, claiming that it had all been done in a mannerPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

21 which effectively was defrauding him of his entitlement; isn't that right?2 A. Yes, a disaster.3 Q. 2 Yes, it would be a disaster. I think it is the case that as regards the firm4 of solicitors who you were instructing at the time, Finbar Cahill and Company5 Limited, they had played no role or part whatsoever in the dealings which you6 had with Mr. Caldwell at the time of the Southfield/Vino transaction; isn't7 that right? They were not advised by you that you were discussing with Bank of8 Nova Scotia, for example, the possibility --9 A. No.10 Q. 3 -- that you might stand in and pay interest or any of those matters?11 A. They had no involvement.12 Q. 4 They had no knowledge whatsoever of the fact that there was a Goodman interest13 at all; isn't that right?14 A. Well not that I can recall.15 Q. 5 Right. You had never indicated to Mr. Madden, for example, that Mr. Larry16 Goodman was in fact the financier of the initial transaction through the17 provision of funds to Southfield and that his interests had not been resolved18 and that that was a reason for the delay in your ability to negotiate the19 acquisition of the land with Mr. Caldwell; isn't that so?20 A. Mr. O'Neill, I cannot be sure.21 Q. 6 Fine. In any event, you certainly brought the matter up with Messrs. Finbar22 Cahill & Co. when you received this letter and you sought their advices on the23 issue; isn't that right?24 A. Yes, I did.25 Q. 7 And you apparently, initially, didn't formally set out what your knowledge of26 the events which were being referred to in the letter of, that's on screen,27 from Noel Smyth. You didn't set out any account of that in writing but you28 discussed the matter on a number of occasions with Mr. Madden; isn't that so?29 A. I'm sure I did, yes.30 Q. 8 And we'll see a letter from you at page 2409 to Finbar Cahill & Co. on the 3rdPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

31 of October 1994 where you say, "Dear Andy. I refer to the above letter, copy2 of which I sent to you on the 20th of July and spoke to you on the same day,3 you said then that you were not concerned about the contents of same. We4 again spoke on the 22nd and you confirmed same and said that Finbar Cahill5 shared your view. I would be obliged to receive a written confirmation6 confirming your opinion as expressed on the 20th and 22nd of July last.78 Looking forward to hearing from you."910 Obviously then the matter was still of some concern to you three months after11 this initial claim had been made against you by Mr. Smyth in the letter which12 we'll see on screen.13 A. Mr. O'Neill, I would say I was conscious of it and I was anxious to, having14 spoken with Andy Madden, to get his opinion in writing or advice.15 Q. 9 And in order to get that opinion in writing, were you ever requested by them or16 did you ever volunteer to set out in full what your knowledge of the17 involvement of Mr. Goodman was in the context of the Coolamber lands?18 A. I never set it out in writing, to my knowledge.19 Q. 10 No. And insofar as you received something in writing from your solicitors in20 response to your request of the 3rd of October, it was a letter of the 4th of21 October 1994 from Finbar Cahill & Co. which we see at page 2410. In this22 letter Mr. Madden writes to you as follows:23 "Dear Joe. I confirm the contents of our telephone conversations relating to24 this matter as follows.2526 (A) You instructed on behalf of Tiernan Home Builders Limited that you had no27 knowledge whatever of the matters set out in the above referred to letter.2829 (B) You instructed on behalf of Tiernan Home Builders that until receipt of30 the letter dated 18th of July 1994, you had not received any communicationsPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

41 from Noel Smyth & Partners, Elangrove Properties Limited, Cork Company Limited2 or anybody acting on their behalf in relation to any claim against the lands3 now owned by Tiernan Home Builders Limited.45 (C) You enquired as to whether, in these circumstances, Mr. Smyth's client6 company could have any effective claim against the lands or your company and7 received advice to the effect that this would be most unlikely.89 (D) You requested advice as to whether Mr. Smyth's letter required answering10 and you were advised that on the instructions received, your company would11 appear to have no case to answer to Mr. Smyth's client and effectively the ball12 was in his court.1314 In the present circumstances and unless further information has come to hand15 and further instructions received by us, we would have no reason to change this16 advice. In the event that you require anything further to be done please17 advise."1819 If we deal with point (A) there, Mr. Tiernan, it states "You instructed on20 behalf of Tiernan Home Builders that you had no knowledge whatever of the21 matters set out in the above referred to letter."2223 In fact, you did have knowledge of the fact that Mr. Goodman was a party who24 had financed the initial transaction and whose entitlement would have to be25 addressed in some way by those parties who had borrowed them monies to finance26 the project, and that was Southfield Limited; isn't that right?27 A. Yes, it would.28 Q. 11 Yeah. So albeit that you might not have had complete knowledge of the29 dealings which existed between the parties Elangrove, Southfield and/or Vino,30 you did have knowledge of the fact that in addition to the sale of the propertyPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

51 to you that you had been involved to an extent, although it did not culminate2 in any agreement between yourself and Southfield, you had been involved in an3 attempt to satisfy Mr. Goodman's requirements which were set out to you at the4 meeting which you attended at Arran Court in November 1991 when it was proposed5 that there would be a take out in June of 1992 for 700,000 pounds of the lands;6 isn't that so?7 A. Mr. O'Neill, I don't remember that proposal being made when I met Mr. Larry8 Goodman.9 Q. 12 Right. You say that you were not present for the entire meeting with10 Mr. Lawlor and Mr. Goodman. You say that their meeting continued after --11 A. Yes, I did.12 Q. 13 -- you had left, you were outside --13 A. Correct.14 Q. 14 -- and that these matters may have been discussed by them. And that accounts15 for the discussion that is recorded in memoranda of the time; is that right?16 A. I understand now. I just don't recall --17 Q. 15 Right.18 A. -- talk about 700 take out in my presence.19 Q. 16 Can we take it from the content of this letter here, that even after the letter20 was written to you by Mr. Noel Smyth seeking to advance a claim on behalf of21 Mr. Goodman, that you did not disclose to Finbar Cahill & Co. the fact that you22 had been involved, to the extent that we've dealt with over the past number of23 days, in dealings with Mr. Liam Lawlor and with Mr. Larry Goodman with a view24 to resolving Mr. Goodman's concerns?25 A. No, I cannot agree with that. Again, I'm unsure whether I mentioned that to26 either Mr. Cahill himself or Mr. Madden. I don't remember.27 Q. 17 Well if you had mentioned it to them they surely could not have written a28 letter to you saying that you instructed that you had no knowledge whatever of29 the matters set out in the above letter because you had knowledge, albeit not30 complete knowledge. But it's not a question of your not having any knowledgePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

61 whatsoever of there being a claim extant to recover monies that were advanced2 on this transaction by way of loan to Southfield. You knew that monies had3 been lent to Southfield?4 A. Yes, I did.5 Q. 18 Yeah.6 A. But I did not know that it wasn't satisfied, the debt. I did not know that.7 Q. 19 You knew that at the last occasion upon which you had discussed the question of8 there being a loan to that point it was an unresolved debt --9 A. Issue, yes.10 Q. 20 -- and had not been satisfied; isn't that right?11 A. That's right. When I visited the bank.12 Q. 21 Sure.13 A. Yes.14 Q. 22 And in the interim you say --15 A. I positively and genuinely and sincerely did not know the outcome after that.16 Q. 23 Right.17 A. From a monetary point of view.18 Q. 24 So you made the presumption that the debt had been satisfied in some way before19 the parties went on to sell to you; is that right?20 A. Well I'm not too sure how much concern it was of mine at that stage. But I21 suppose it would be fair to say that I assumed so.22 Q. 25 You see, what was being alleged against you to involve you in this transaction23 which was a dispute between the Goodman interest and the24 Caldwell/Southfield/whoever was involved in that, was that they were claiming25 that you were a knowing participant in the disposition of the asset, that is26 the Coolamber lands, from Southfield to Vino. That you knew that this was27 being done on the basis of an under value of the lands so that the lands could28 be sold on to you free of Mr. Goodman's claim. That's what they were saying29 in the letter to you; isn't that right? That is what the letter of the 18th of30 July was saying. It wasn't merely reciting a history of events?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

71 A. Could I see it again, please?2 Q. 26 Of course you could. Yes, it's 2397. I think you'll find probably that the3 second paragraph is the material one as regards any claim that's being made4 against you. "It is clear from our instructions that Vino Properties Limited5 and Southfield Properties Limited were fully aware of the debt, lien and6 interest that our client's predecessor had in the lands", we'll stop at that7 point there. I think you were aware of all of those facts; isn't that right?8 A. I was aware of the Southfield situation, positively.9 Q. 27 You say you were unaware of the fact that Southfield had not discharged its10 obligation to -- sorry. That Vino had not discharged its obligation to11 Southfield?12 A. Oh, I wasn't privy to any of that.13 Q. 28 "Our instructions are that on the 22nd of May 1992 that Vino Properties Limited14 purportedly took a transfer of the lands from Southfield Property Company and15 then subsequently purported to transfer the same to you, despite being on16 notice of our client's beneficial ownership and/or undischarged lien and they17 did not obtain our client's consent and confirmation of the transfer and/or18 discharge."19 A. That was all news to me.20 Q. 29 Right. I mean, the response to it from your point of view, I take it, would21 have been that while you were aware of the fact that Southfield was indebted to22 the predecessor and title of Elangrove, you did not know of any onward failure23 on the part of Southfield to discharge that debt before dealing with you?24 A. I did not know.25 Q. 30 That was a position you could have adopted --26 A. Well I couldn't adopt it Mr. Chairman, Your Honour, I could not have adopted it27 had I any knowledge of it.28 Q. 31 But in making the response which you did to this letter, which was effectively29 to not respond to Mr. Smyth's claim at all. He received no reply at all from30 you; isn't that right?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

81 A. That's right.2 Q. 32 That was a strategic decision which had been taken by you in discussion with3 your solicitors, you having indicated to the solicitors that you had no4 knowledge whatsoever of the matter, and they then deciding that in those5 circumstances the ball was in the court of Mr. Smyth's client to try and make a6 case against you --7 A. Yes, I had --8 Q. 33 Isn't that, in summary, the position that was adopted. They had to prove the9 position against you, you were not going to make any response whatsoever?10 A. That's what happened.11 Q. 34 Right. I know that's what happened, but was that a tactical decision which12 was taken by you on the basis of your not informing Finbar Cahill & Co. of the13 fact that you had had an involvement in 1991 in the possible refinancing of14 Mr. Goodman's debt?15 A. As I said five minutes ago, Your Honour, I am unsure. I do not recall now16 whether I advised Finbar or Andy Madden of my visit to the bank.17 Q. 35 I see.18 A. I do not remember now.19 Q. 36 Were you obtaining advice from any other legally qualified persons on this20 issue at the time, in particular, did you discuss the matter with Mr. John21 Caldwell as to what your approach should be to the claim which is being brought22 by Elangrove, which apparently also is being brought, as we see, against23 Southfield which you knew him to have been the solicitor acting for and Vino24 Properties Limited which you believed he was one of the owners of. Did you25 ever discuss the fact that this claim was being brought against -- well26 addressed to both you and to them by Mr. Smyth?27 A. Again, Mr. Chairman, Your Honour, I do not recall but I wouldn't be surprised28 if I sent that letter to him.29 Q. 37 Yes, it wouldn't be at all surprising because it would appear on the face of30 the letter that if what was said in that letter was true, somebody didPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

91 Mr. Goodman out of his just deserts and you were a person who had met with2 Mr. Goodman.3 A. Yes.4 Q. 38 And had at some point discussed the possibility that you would endeavour to5 resolve the matter by acquiring the lands and he would be paid ultimately,6 presumably; isn't that right?7 A. That's right. Again, as I said, I do not recall, but I would be very8 surprised if I did not forward the letter to him.9 Q. 39 Right. Do you think you might have discussed the matter also with Mr. Liam10 Lawlor who had introduced you to Mr. Goodman in the context of your possible11 acquisition of the land?12 A. I doubt that.13 Q. 40 I see.14 A. I just doubt that.15 Q. 41 And why would you not have spoken to him about it since he apparently was your16 introduction to Mr. Goodman, he was the person who presumably Mr. Goodman would17 have been getting on to about this default and in effect you were one of the18 persons who was being blamed for his loss, that is for Mr. Goodman's loss.19 And since Mr. Goodman was a person who you had been introduced to by20 Mr. Lawlor, why would it not be reasonable that you might not have contacted21 him?22 A. Well perhaps I did. But I -- I have no record of that.23 Q. 42 Right.24 A. I have no memory of it. I would expect that I did forward the letter to25 Mr. Caldwell. Whether I mentioned it to Mr. Lawlor or not I have no26 knowledge, absolutely no knowledge. But it would be a perfectly natural27 thing for me to do on receipt of the letter or soon afterwards to forward it to28 Mr. Caldwell, I think.29 Q. 43 Fine. Mr. Caldwell's role in the transactions which have been examined to30 date with you, which involve the initial contract, which ran from November 1989Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

101 until September of 1991, and the new contract which commenced in December 19922 and which was completed in December -- in June of 1994, included, initially,3 him dealing with you in the context of his being the solicitor representing the4 Southfield interest; isn't that right?5 A. Originally.6 Q. 44 Originally. And you thought that as that progressed in some way that he may7 well have had some interest in the lands whilst they were in the ownership of8 Southfield; is that so?9 A. That was my belief.10 Q. 45 And in addition to your having that belief as to his role at that time, and11 that is from the period between or a period which arose between 1989 and '91, I12 think you also were aware that he was a person who was intimately aware of the13 planning progress of the rezoning application and the planning applications14 which were being lodged on your behalf by Mr. O'Connor; isn't that right?15 A. That is right.16 Q. 46 His interest, I think, and we'll examine exactly the extent to which he was17 involved there, would appear to have gone beyond merely being the solicitor18 acting for the person who was selling the property to you; isn't that right?19 A. Absolutely.20 Q. 47 He was discussing the precise detail of exactly how the lands were to be21 drained and matters of that nature; isn't that right?22 A. Well after the contract was signed in October/November '89.23 Q. 48 Yes?24 A. Nothing changed after that as far as the drainage was concerned.25 Q. 49 True. But your engineer/architect, Mr. O'Connor for example, was liaising26 with Mr. Caldwell on the detail of the planning applications; isn't that right?27 In addition to you. You were his client but he was also dealing with28 Mr. Caldwell in relation to the detail of the planning application; isn't that29 right? Copying the documentation to him perhaps, discussing the respective30 merits of drainage, that type of thing?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

111 A. Well I'm just not too sure about that, Mr. O'Neill.2 Q. 50 Okay. We'll examine one or two of the memoranda at the time.3 A. I'm not too sure about it.4 Q. 51 You're not to too sure about it. In any event, at that time was Mr. Caldwell5 offering you any illegal advice, was he acting in any sense as your legal6 advisor in the transaction between 1989 and 1991?7 A. I would say not.8 Q. 52 And did that position alter when the new contractual arrangement commenced in9 December of 1992 and running through to the period when you actually completed10 the purchase of that property in June of 1994?11 A. Mr. O'Neill, not that I can recall.12 Q. 53 No. We'll see that in September of 1993, which was about half way through the13 period in which you were contracted to acquire the lands, that is six months14 after you'd signed the contract to do so in December of 1992 and about a year15 before the completion date, which was in 1994. You wrote to Mr. Andy Madden,16 and we'll see on page 2042, a copy of your letter of the 14th of September17 1993.18 A. Just one point of correction there before I read that or see it.19 Q. 54 Yes?20 A. There was one piece of advice he gave me, at least.21 Q. 55 And was that advice legal advice that he was giving to you?22 A. I suppose you could, you would call it that, yes.23 Q. 56 And what was that legal advice?24 A. It was to advise me to request Cahill's office to, I don't know the exact legal25 terminology, but to register a caution or -- register something in the land26 registry.27 Q. 57 I think we'll see the detail of it in the letter that I've just referred you to28 on screen on page 2042. Which is a letter of your's written to Mr. Andy29 Madden, who was then your solicitor and legal advisor in relation to the30 transaction. You write as follows "Dear Andy. I refer to our telephonePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

121 discussions of yesterday and this morning, as agreed I request you to register2 in the land registry office a priority search on the folio of the above lands3 at Finnstown, Lucan, County Dublin. The priority search magnetism should be4 renewed as often as is necessary in order to keep the priority search current5 with no break in between.67 I have requested John O'Connor, architect, to furnish you immediately with a8 map acceptable to the land registry office outlining the property. It would9 be important that the priority search be registered today.1011 I would be obliged to receive written confirmation when the above priority12 search has been commenced and that it will be renewed as agreed."1314 Is that the advice that you received from Mr. Caldwell?15 A. Yes, it is, positively.16 Q. 58 And what do you understand that advice to mean, Mr. Tiernan?17 A. What Mr. Caldwell told me at the time, I now remember it. Was that the18 priority search mechanism to be registered every 14 days, it only lasted 1419 day, so it would be have to be re registered every 14 days, and there was a20 small charge for that, maybe 20 or 30 pounds every 14 days, that it would21 ensure that nobody could -- I'm unsure of the legal term, let's say register a22 claim against the title.23 Q. 59 Gazump your interest?24 A. Or a variation of that.25 Q. 60 Right.26 A. Gazump would be an appropriate word.27 Q. 61 Nobody could move ahead of you legally in relation to registering an interest28 in the land; isn't that right?29 A. Well, now, that was the advice from Mr. Caldwell. Mr. Madden's advice to me30 was that it was a useless exercise.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

131 Q. 62 Yes.2 A. And that it would not prevent him if he was on another side.3 Q. 63 The Tribunal has heard that exactly the same mechanism was used in relation to4 the Carrickmines lands, where a Mr. Friel, solicitor, was instructed to go5 through exactly the same procedure, which he as a conveyancing solicitor found6 to be an extraordinary situation but he complied with the requests which were7 made of him to do so. And I have to suggest to you that the consequence of8 that is that even though you were not the legal owner of the lands at this9 point in time, and you are not to become the legal owner until you'd paid the10 balance of almost three million pounds a year later. By registering a11 priority search in relation to the lands you took the folio out of circulation12 so that no other land transaction could be registered on the folio while the13 priority search was in being. Now, I don't expect you to offer a legal14 opinion on the matter. But it is the case that as far as you were concerned,15 this was a mechanism which you were advised by Mr. Caldwell to implement; isn't16 that right?17 A. Oh, absolutely. And had I heard a person like you utter the words you're18 after uttering I would be very happy, because Cahill's office, through Andy19 Madden, was dismissive and said it was useless and a waste of money.20 Q. 64 Right. Do you know of any reason why Mr. Caldwell would offer you these21 advices, if he is the owner of the property and was the person who was selling22 the property to you because the effect of a priority search would be to impede23 the ability of Mr. Caldwell to sell the property to anybody else?24 A. No, it doesn't make sense to me.25 Q. 65 No. Well are there any circumstances that you can offer to the Tribunal,26 Mr. Tiernan, as to why it was that Mr. Caldwell was offering you these advices,27 which on their face certainly, would not appear to be advices that would serve28 the interests of Mr. Caldwell and the parties who he was representing in this29 transaction?30 A. I agree it sounds as if it would not serve their interest.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

161 that only has the effect of limiting or tying up the folio for a two week2 period. And unless it is renewed within that period the folio's then open3 again for dealing; do you understand that to be the position?4 A. Well I understand it insofar as that Mr. Caldwell told me it would have to be5 renewed every 14 days.6 Q. 80 What the land registry does when it gets the search, is to carry out a search7 to see if there are any dealings in relation to the land at that particular8 point in time. And then to report to the person who has registered the search9 on whether there has been. And the report which came back was to indicate10 that there was nil transaction. And you were advised of the result of the11 search and on the 5th of October 1993, you wrote again to Mr. Cahill's office12 to Mr. Madden, at page 2056.1314 Acknowledging receipt of his letter October together with the land registry15 office confirming receipt of the priority search. You say:1617 "I confirm that I require the search to be continued before the expiry of the18 fourteen days as per my letter dated the 14th of September 1994."1920 So, Mr. Madden initially mustn't have understood that this was intended to be a21 process that was to continue all the way through until June of 1994 or till22 whenever it was that you ceased to have a contractual relationship with the23 land; isn't that so?24 A. Well I cannot say that he didn't understand what I told him.25 Q. 81 Yeah.26 A. But I do remember vividly that he was totally dismissive of it.27 Q. 82 Yeah.28 A. And felt it was a useless, to quote his own word, "exercise."29 Q. 83 In saying that to you, did he tell you that he was going to ring up John30 Caldwell and tell him that this is a pointless exercise, it's costing my clientPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

171 20 pounds in fees to the land registry every time it is done, it involves2 somebody from my office going down and preparing the documentation, lodging it3 in the land registry, it is a burden that is wholly unnecessary and what, why4 are we doing this?5 A. I don't recall him telling me that.6 Q. 84 No.7 A. Did he write to me to that effect?8 Q. 85 He didn't write to you. I'm asking you whether or not if he had indicated to9 you that he was entirely dismissive of this procedure. Is it not curious that10 he would not have then got in touch with Mr. Caldwell to tell him "this is a11 procedure which is going to cost my client a lot of money, time and legal fees12 for continual visits from my office to the land registry office every two weeks13 for the next year, what is it all about?" Would you not think that he would14 have followed up the statement to you that he was dismissive of it if he had15 known that this was something which Mr. Caldwell had advised you to do and16 which he considered to be unnecessary?17 A. Well it's a fair assumption to make that he should have done it I suppose.18 Q. 86 Is it the case, Mr. Tiernan, that at all times when the commencement of this19 transaction in 1989, yourself and Mr. Caldwell were dealing directly in various20 capacities, both as perspective purchaser and perspective vendor of the lands21 initially, as persons having a joint interest in the successful rezoning of the22 land subsequently and as persons who would subsequently share in whatever23 profits were generated out of this transaction ultimately. Is that what the24 relationship was between yourself and Mr. Caldwell?25 A. There was a friendly relationship. And you could sum it up the way you did as26 being more accurate than wrong.27 Q. 87 Uh-huh. But to a large extent and perhaps entirely, that relationship isn't28 reflected in the correspondence which passed in relation to this transaction29 from which it would appear --30 A. There would be phone calls.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

181 Q. 88 Sorry?2 A. A lot of the contact would be phone calls.3 Q. 89 Oh, I accept that there isn't documentation available which reflects the4 relationships which I have just indicated to you, with the exception of5 Mr. Caldwell appearing as the signatory of certain letters when he was writing6 as a solicitor or his signature as a director of Southfield in circumstances7 where Southfield was communicated with; isn't that so?8 A. Yes.9 Q. 90 But those documents, I suggest, do not accurately reflect the nature or extent10 of the communications and dealings which you were having with Mr. Caldwell from11 the inception of this transaction in 1989 until its conclusion in 1994; isn't12 that so?13 A. Well if we -- if I may go back to the beginning. I don't recall personal14 contact with Mr. Caldwell prior to the signing of the contract in '89 on this15 matter. There may very well have been a telephone call by me but I don't16 recall it to him. There would have been a few telephone calls then in the17 spring of 1990, he enquiring and I telling him how things were moving. I'm18 reluctant to say "progressing". Moving forward. Any inquiries he made of me19 I told him the truth and kept him posted. When the contract was coming up to20 its expiry, I raised the matter with him of getting an extension, and we went21 through that a few days ago. So there was that type of contact. I visited22 the bank with him. I was not aware of the fact that he represented me as23 going to have a significant share of an offshore company that would take24 ownership of it. I was not aware of the fact that there was reference there25 that there could be a stamp duty saving to the purchaser. None of that was I26 aware of. We went through the documentation and I remember and recall the27 correspondence leading up to the contract that was signed by Miley & Miley's28 office and Cahill's office. I now remember him advising me, and maybe he gave29 me a piece of paper, I don't know, about what we now refer to as the priority30 search. After that there was probably very little contact.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

191 Q. 91 Are you saying there was no contact after you paid the money ultimately?2 A. Well there was very little contact between the priority search and the closing3 of the sale, I think.4 Q. 92 Right.5 A. Which was a year before the closing of the sale.6 Q. 93 Right. Through that period, of course, you were progressing a planning7 application; isn't that right?8 A. Yes.9 Q. 94 The planning permission of which was not granted until 1994, shortly before the10 closing; isn't that right?11 A. Well the planning permission didn't issue until two months after the closing.12 Q. 95 Yes, but the decision had been made --13 A. It had --14 Q. 96 -- earlier and prior to the date that you closed; isn't that right?15 A. That's right, and it was appealed by I and others.16 Q. 97 Yes. I want to move to deal with the planning aspects or the planning history17 of the lands, Mr. Tiernan, if I may at this point. And just by way of18 synopsis of what the situation was. Prior to your acquisition of the lands,19 I think you told us that you learned of the lands being available for sale,20 probably in the late summer of 1989. You ultimately contacted Mr. Synnott, as21 a result of receiving maps from Mr. Synnott on the 15th of October or so, you22 passed those to your architect, Mr. John O'Connor. And some nine days later23 you were in a position to sign a contract or to have a contract signed on your24 behalf by Finbar Cahill and Company to acquire the lands for 2.2 million pounds25 with a payment of 110,000 pounds by way of deposit which was released at that26 time to the vendor.27 A. Yes.28 Q. 98 Isn't that so? Obviously you've indicated equally that you knew the lands, you29 knew the zoning of the lands and you had obviously the intention of using these30 lands for development purposes, although at the time of your consideration ofPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

201 the lands they were lands which were zoned for agricultural use only and had2 had that status from -- well from the initial zoning of the lands in County3 Dublin with the exception of a brief period when it was intended, in 1980 or4 thereabouts, that they would be rezoned for the purpose of residential5 development in conjunction with part of the lands of Mr. Liam Lawlor and that6 that decision had been reversed; is that a fair summary of the knowledge which7 you had prior to committing yourself to acquiring the lands?8 A. Yes, it is.9 Q. 99 Right. What was your belief as to how you could set about achieving your goal10 of developing these lands for residential housing in the light of the existing11 planning permission -- sorry -- the existing zoning status of agricultural12 land?13 A. Well I knew, and upon having John O'Connor's people check it, that I was14 satisfied that all of the services necessary to develop it were adjacent to the15 development, to the proposed lands. In other words, the Grifeen River, there16 was access to that through public property, Dublin County Council at the time.17 There was no third party involved for to get access from. And likewise, with18 foul sewage, it would run parallel as far as the Grifeen River with the surface19 water. And then onwards to large empty foul sewage pipe on Dublin County20 Council property and laid by them some years prior to that, several years prior21 to that.22 Q. 100 I take it you're aware of the fact that since it was land which was zoned for23 agricultural use only and since there was not, at that point in time, a draft24 Development Plan being considered by the council, that it would involve a25 material change of use of the lands for your plans to be achieved; isn't that26 right?27 A. Very much so. It was the only way it could move forward.28 Q. 101 Right. And how did you intend to progress that application, I'm talking now29 about the time before you actually commenced it, but what were your30 intentions, what was the plan forward as you saw it prior to your acquiring thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

211 lands?2 A. The plan forward was to satisfy myself that what I have outlined was that it3 was correct, that it could be drained, that was crucial, drainage, road4 access. Having discussed them items with the relevant departments of the5 County Council to put an application in, planning application and then lobby6 the elected public representatives for their support because I was conscious7 and familiar with the fact that otherwise it was dead duck.8 Q. 102 Yeah.9 A. That a majority of the councillors would have, present, would have to vote in10 favour of it to enable management to grant a permission. Otherwise they would11 have to refuse it and then it was finished.12 Q. 103 I think in synopsis, even though the project itself might be very attractive13 for any number of reasons and even though there might be services even on-site,14 the fact that it was zoned agricultural meant that no project could be approved15 by the officials of the council unless and until they were so directed to treat16 the matter as a material contravention. And that decision would not be taken17 by the management of the council itself but could only be taken by a vote of18 the councillors directing the manager to act in a certain way; isn't that so?19 A. That is my understanding.20 Q. 104 Right. So that crucial to any decision of your's to acquire these lands and21 to invest your funds, you really were, had to be confident in your ability to22 impress the elected representatives with the merits of your project to the23 extent that some of them would propose a motion, a Section 4 motion, and24 thereby trigger the procedure which would allow for the matter to be considered25 by the councillors as a whole; is that right?26 A. That is the mechanism.27 Q. 105 Yeah.28 A. I was certainly optimistic and possibly confident.29 Q. 106 Right. And what gave you that confidence, Mr. Tiernan, at the time?30 A. What gave me that confidence was that I knew that I would be able to promotePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

221 this development as a sustainable development that could be carried out at no2 cost to the local authority. In fact, I had a two-page brochure, A4 size,3 prepared which I circulated to all the councillors outlining the merits of it.4 Now, admittedly merits from my point of view, and highlighting the advantages5 of the location, all the amenities it was beside.6 Q. 107 Was this a document you circulated after you'd acquired the land or was it in7 advance of your acquisition by contract in --8 A. Afterwards.9 Q. 108 Sorry, it was afterwards?10 A. Yeah.11 Q. 109 I'm just trying to fix your frame of mind before you actually committed12 yourself to the contract of paying out 110,000 pounds. At that time had you13 carried out any preliminary inquiries or investigations with elected14 representatives to establish what the attitude of the councillors themselves15 would be to a proposal that this 55 acres would be rezoned for residential16 house. Did you have any form of a straw poll or did you consult party17 colleagues or that before you did so?18 A. I would say I spoke to a few. But I just don't remember who I would have19 spoken to --20 Q. 110 Uh-huh.21 A. -- in particular. I was optimistic because I was aware of the fact that many22 material contraventions had been passed by that council. And I was of the23 opinion that they were pro development all things being equal. By that I mean24 that if the proposed development was continuous with and continuous with25 suburbia rather than being disjointed. I could see the merits of it.26 Q. 111 Right. Did you believe that the task that would face you in the event that27 you acquired these lands, the task of achieving its rezoning would be a28 difficult task?29 A. I was conscious of the fact it wasn't going to be easy. Now, what one of the30 factors in that would be this, being quite honest about it, would be DeputyPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

231 Lawlor lived beside it. And I was very conscious that some public2 representatives, of all parties, his own included, would not be anxious to do3 anything to facilitate him or his adjoining lands. I knew that.4 Q. 112 Obviously then it would follow that any apparent connection between yourself5 and Mr. Lawlor would, I think somebody described it having the kiss of death on6 this project; isn't that right?7 A. I did, I used those words.8 Q. 113 Is that right?9 A. And I am fairly certain of that/very certain.10 Q. 114 But I take it that of all the possible developers or certainly of the two11 proposed developers of this land at the time. And by proposed I mean the two12 that were being considered by the vendors, one of whom was Mr. Michael Bailey13 and the other was yourself. You were by far the person who was least likely14 to be associated with Mr. Lawlor because of your known political standing as a15 very active Fine Gael supporter at that time; isn't that right?16 A. That is right.17 Q. 115 Right. Now, of the persons who you may have discussed the matter with before18 you committed yourself to paying the monies of Mr. Rennicks over, did you19 discuss it with Mr. Lawlor to see what his attitude would be an, as you say, an20 elected local representative, and as a person whose land adjoined these lands,21 albeit divided by the Newcastle Road?22 A. I'm very certain and sure that I did not discuss it with him prior to signing23 the contract.24 Q. 116 Right. When you decided to acquire the land, apparently you, at the same25 time, set about endeavouring to establish what your sources of finance would be26 for it; isn't that right? We discussed this earlier. That you approached, in27 the first instance, CFI Limited?28 A. Yes.29 Q. 117 And the members of that firm to see whether or not they would be prepared to30 act as the financiers of the project, by that I mean to assemble a group ofPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

241 investors who would operate --2 A. Correct.3 Q. 118 -- to acquire it; isn't that right? And you explained to them, and in4 particular to Mr. Luke Mooney, with whom you were familiar from previous5 dealings, the manner in which you intended to set about achieving the rezoning;6 isn't that right?7 A. I'm sure I did.8 Q. 119 And having done so, CFI declined to become involved in the project; isn't that9 right?10 A. They did decline.11 Q. 120 Did they give you a reason as to why they were not prepared to stand in the12 position of financiers to this project, whereas they had done so for other13 projects, including your Mount Argus project earlier that year?14 A. I'm not sure if they outlined in detail the reasons. But I have a feeling15 that there was reference made that it would be controversial, high risk and it16 wasn't guaranteed.17 Q. 121 Yes. Mr. Mooney in furnishing his account of events to the Tribunal did so in18 a number of documents which were furnished to the Tribunal, one of which was a19 statement which was provided in November of 2004. At page 2665, of which at20 point 3 he states "That because of the business risk involved and a desire not21 to become involved in a potentially controversial planning event, we declined.22 Mr. Tiernan had told us that the application could be controversial and would23 involve heavy lobbying of councillors." Is that an accurate summation of what24 the situation was?25 A. Yes.26 Q. 122 I think independently of that statement of events as to why it was that CFI27 declined to involve themselves in this transaction, you are aware that they28 also offered an explanation to you or possibly not offered an explanation but29 certainly recited a history of events which led to their declining to become30 involved, when Mr. Mooney wrote to you on the 27th of May 1997 in the course ofPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

251 advancing his claim to recover some 10% of the net proceeds or net profits, I2 should say, of the venture; isn't that right?3 A. Yes, that's right.4 Q. 123 And I think you are aware that on that occasion he indicated that in, as the5 following of the account of events leading to that decision. He said "In6 November 1989 you again came to see me and my partners, this time with a7 proposal to buy lands at Finnstown. You indicated that the process to rezone8 these lands from agricultural to building would be difficult. Your proposed9 modus operandi was unacceptable to my partners, who declined your invitation to10 participate." He then goes on to indicate how he involved Mr. Rennicks in the11 project having declined to become involved professionally through his corporate12 structure and that of his partners; isn't that so?13 A. Yes.14 Q. 124 What was it about the modus operandi that you had outlined to Mr. Mooney that15 was in some way controversial as far as you are concerned?16 A. I don't recall what he means by modus operandi other than high profile17 publicity, adverse publicity, lobbying. I don't know what else he has in18 mind.19 Q. 125 Yes. The fact that there would be lobbying of councillors for a particular20 purpose, is not something which necessarily would come into the public domain21 in any way; isn't that right? Insofar as you would make personal contacts with22 individual councillors, there was no obligation upon you to file, with the23 council, any record of your approach to an individual councillor or any other24 record of dealings with councillors?25 A. Correct.26 Q. 126 You were free I think, as any citizen is, to make a representation to a27 councillor to act in a certain way and that councillor is neither obliged to28 record that contact in writing, if it's to do with a planning matter, or29 otherwise; isn't that right?30 A. I think so, yes.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

261 Q. 127 So the fact that the application is made will come into the public domain2 through a notice appearing in the planning register or the planning section in3 a newspaper which gives notice to the public that, in this instance, Tiernan4 Home Builders is applying to build 503 or 490 or 470 at one point, houses on5 the lands. But there's nothing adverse in the sense of adverse publicity6 arising from that. The mere fact that you apply for planning permission is7 not of itself something which carries with it any odium or anything to the8 detriment of you or indeed of the councillors who might ultimately have to9 decide upon the issue; isn't that right?10 A. That is right. Now, there would be lobby groups in that area and indeed in11 every other area.12 Q. 128 And on both sides I take it, Mr. Tiernan?13 A. Well there would only be the one lobby group on my side, I think.14 Q. 129 But you could be faced with lobby groups from community associations.15 A. Yes.16 Q. 130 From Heritage councils and other bodies. There could be various lobby groups;17 isn't that right?18 A. There always is.19 Q. 131 And the extent to which they could bring adverse publicity to you, is limited20 to what would take place at any public hearing, be it an oral hearing, if An21 Bord Pleanala chose to have an oral hearing in the event of an appeal; isn't22 that right? These groups wouldn't -- don't -- can't dictate the agenda, for23 example, of a County Council meeting, and they've no right of audience at such24 a meeting; isn't that right?25 A. Correct.26 Q. 132 And if your proposal involves the lobbying of county councillors, you've agreed27 with me there's no record kept of what lobbying that you engage in, and28 therefore none of those groups are in a position to know whether you've29 approached, one, all or a selection of the councillors; isn't that right?30 A. Correct.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

271 Q. 133 And as much as can be inferred is, that a particular councillor who stands up2 to make a proposal in favour of a particular applicant, let's say a Section 43 application, that person is a person who is likely to have been convinced by4 you, the applicant, that it is appropriate to bring such a matter before the5 general body of the council; isn't that right?6 A. Yes.7 Q. 134 And there is certainly nothing reprehensible or questionable on its face in a8 councillor doing that because they are -- they were certainly relatively common9 motions to bring; isn't that right?10 A. Indeed.11 Q. 135 So there's no down side, no consequence in that situation which could adversely12 affect the representation of a financier or of a financing company which is13 backing the application because the existence of that financial relationship14 between the promoting company and/or under writer, as you might call it in this15 instance and yourself, is one that is entirely private and is unlikely to be16 disclosed by you to any councillor or to anybody else; isn't that right? It's17 a private banking matter.18 A. Yeah.19 Q. 136 There would be, in other words, no down side that I can see identified here so20 far in a company, such as CFI, providing the finance for this project merely21 because it involved you going through a Section 4 route to achieve rezoning.22 Can you identify any one that you say exists or could exist in that situation?23 A. Well I know at the time and prior to that and after it, every material24 contravention had its lobby groups against it, and it was always well25 publicised in the media, their objections.26 Q. 137 Yes. But their objections would not be directed towards the corporate27 financiers who were behind the project. They could be directed towards Joe28 Tiernan or Tiernan Home Builders?29 A. They could, but it's unlikely.30 Q. 138 But that would arise in any situation; isn't that right?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

281 A. Yes.2 Q. 139 I'm just curious as to why it was that you could see that the project, as you3 advanced it to the financiers, was rejected, I suggest not on the basis that it4 might not be a successful application at the end of the day but rather because5 the modus operandi or the manner in which intended to set about achieving the6 rezoning of this land was unacceptable to the financiers behind the project?7 A. Yes, I hear what you have said. I don't know what else they have in mind when8 they talk about the modus operandi.9 Q. 140 All right. In discussing how you were going to set about the project after10 you had acquired the land. Did you discuss it with Mr. Lawlor at that point,11 and in particular, did you discuss with him the manner in which you intended to12 lobby the elected representatives of Dublin County Council at the time?13 A. I did, I spoke to Deputy Lawlor about lobbying.14 Q. 141 Right.15 A. I told him what I proposed to do. He indicated, the first time I spoke to16 him, I'm just not sure but let's say a lack of enthusiasm for voting for it.17 And then at subsequent discussions it became obvious to me that he was not18 going to vote for it.19 Q. 142 And did he indicate to you either in the first discussion or in the subsequent20 discussions what the basis for him not voting for it would be?21 A. Well he certainly did not tell me that he had an interest in it.22 Q. 143 Well --23 A. He did not utter anything that would give me to believe that he had financial24 interest in it or had a vested interest in it being developed.25 Q. 144 Well I'm asking you whether or not you can recollect what he said to you about26 why he wouldn't be voting for it, that's now independent of whether he had an27 interest in it or otherwise. And by that I take it you're talking about a28 financial interest in the ultimate outcome. I'm asking you whether or not29 when it came to discussing the matter --30 A. The second or third time I discussed it with him, not the first time, thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

291 second or third time I discussed it with Deputy Lawlor, his support, he left me2 in no doubt that it would be better if he wasn't enthusiastic and if he didn't3 vote for it and I didn't disagree with that.4 Q. 145 And what reason did he suggest was better, and I take it that means better from5 the point of view of a successful outcome, that he didn't vote for it?6 A. Well I took it to mean -- he didn't spell it out to me.7 Q. 146 Uh-huh.8 A. I took it to mean that his land was the natural progression of things where he9 lived, in being the next lands to be developed --10 Q. 147 Yes.11 A. -- there. Because he was already on one side when we had housing.12 Q. 148 Are you talking about Hillcrest to the north?13 A. Yes, now known as Westbury.14 Q. 149 Well I'm not sure that it was actually built by this time.15 A. Well it wasn't built but I think it was -- it was certainly mooted at the time.16 Q. 150 Well there was the Cruck House lands had a planning application in for17 residential development, it was successful, permission was granted for some 25018 houses on that site but subject to a phased development where 120 houses only19 could be built until the Lucan low level sewage scheme was put in place.20 A. Well suffice to say Mr. O'Neill, development was definite on it.21 Q. 151 Was definite to the north of it.22 A. Of his land.23 Q. 152 Yes.24 A. And this was going to be to the east of his land.25 Q. 153 Right.26 A. So consequently, there would be development on two sides of his lands.27 Admittedly a public road in between.28 Q. 154 Yes. Irrespective of whether Mr. Lawlor had an interest in the Coolamber29 lands, and by that I mean a financial interest, irrespective of that, the30 mere fact of your getting a planning permission or a rezoning of your landPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

301 would naturally increase the value of his land because it brought it, it2 established that land immediately adjacent to it was rezoned and therefore, on3 a domino effect, it was likely that his land would in time be rezoned, whether4 he actively pursued that or not; isn't that so?5 A. That is correct.6 Q. 155 So even if Mr. Lawlor had no direct connection with you at all in this7 transaction, he was going to be a financial beneficiary of any decision which8 would be taken by the council which would have the effect of rezoning the9 Coolamber lands; isn't that right?10 A. Yes.11 Q. 156 I'm putting this to you on the premise that he had no interest whatsoever in12 the lands.13 A. Yes.14 Q. 157 Right. And to that extent, in the normal course, you would expect that your15 application to achieve rezoning of those lands would elicit his support; isn't16 that right?17 A. Well that was my original --18 Q. 158 Right.19 A. -- thinking.20 Q. 159 Right. And certainly you would not identify him as somebody who was going to21 go into the council and vote against you; isn't that right?22 A. Oh, no.23 Q. 160 The question then as to whether --24 A. I thought I was going to get his vote, initially.25 Q. 161 Right. And what you are saying is that after a number of meetings with him26 you came to the belief that he was telling you that if he was publicly27 associated with the project by supporting it in the council, that that could28 act to your detriment; is that right?29 A. Yes, well it may have been a belief I had that had evolved in my mind between30 say, the first and third meeting for example, it could be the first and fifthPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

311 meeting. But he actually told me then that he would not be voting for it.2 Q. 162 Yes. And we know from Mr. Lawlor that he also indicated to a member of the3 media that he would not be attending the meeting at which this would be voted4 upon because he was a person who owned lands in the area and did not wish to be5 in any way associated with the project. And therefore, it came into the6 public domain that he, Mr. Lawlor, was not a person who was supporting the7 project one way or the other. Were you aware of that? Had you discussed that8 with him?9 A. I'm sure -- yes, I was aware of all of those things at the time.10 Q. 163 What I take it --11 A. When I hear you refer to it I remember it.12 Q. 164 And what, I take it that he did not discuss with you was the fact that Navona13 Limited, a company which acquired this land in Coolamber had done so with funds14 that he had borrowed or certainly obtained from Mr. Larry Goodman; isn't that15 right?16 A. No, he didn't.17 Q. 165 He never told you that?18 A. Just repeat that now, please?19 Q. 166 Mr. Lawlor, when he was discussing with you the position that he was to adopt20 in relation to your application for rezoning of the Coolamber lands, did not21 mention to you that he had acquired those lands with monies provided to him and22 his company Advance Proteins Limited, by Mr. Larry Goodman, which he used23 through a company called Navona Limited, in the Isle of Man, to purchase the24 lands --25 A. Absolutely not.26 Q. 167 -- from the Tyrell family. Nor that at the time that you were discussing the27 matter with him, that the company, Navona Limited, had an option to buy out28 those lands at a price of 600,000 pounds, 622,000 to be accurate. And if that29 exercise of that option had taken place with Southfield, he would have been in30 a position to sell on the lands to others for a greater amount of money?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

321 A. Well I became aware of that for the first time here.2 Q. 168 Of course. How frequently do you think you discussed the matter with3 Mr. Lawlor in the first three months or so of the period of your acquisition,4 that is between November and the end of January of 1990?5 A. I would say two or three times.6 Q. 169 And of course at that time you had already, with your architect Mr. O'Connor,7 dealt with the Sanitary Services Department; isn't that right?8 A. Yes.9 Q. 170 And you were also aware of the contractual conditions in the contract, which10 obliged you to make available the infrastructure which you would construct on11 the site to the 60 acres to the west of the land; isn't that right?12 A. Well it was the diameter of the pipe that was my responsibility.13 Q. 171 Whilst that is certainly so. The pipe work was being contracted for on the14 basis that that pipe work would allow for the connection to 60 acres west of15 the land, it specifically dealt with that in the contract?16 A. Yes, that was referred to 60 acres I think. But indeed it would cope with17 much, much more.18 Q. 172 Whilst it may well indeed do so. The lands that were to the west of19 Coolamber, were the lands of Mr. Lawlor and the lands of Finnstown House20 immediately below it; isn't that right?21 A. That is right.22 Q. 173 Well did you ever indicate to Mr. Lawlor, because presumably he wasn't aware of23 the finer detail of the contract under which you were to acquire the land, did24 you ever indicate to him that one of the conditions of the contract under which25 you acquired the land was that he ultimately, or probably immediately, would be26 the beneficiary of any planning that you would successfully obtain on the lands27 because you were obliged to provide a pipe work that -- a pipe network28 infrastructure which was specifically designated to serve 60 acres to the west29 of your lands which involved also his lands?30 A. I would say I did.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

331 Q. 174 Right. And did he indicate to you what his view on that would be and why it2 was that that was inserted in any contract?3 A. I don't recall he saying he was delighted or negative. I myself could see the4 merit of it from the local authorities point of view in larger pipes going in5 if they're being laid at all. He did not say to me "Tiernan, I hope I do6 benefit". That's him.7 Q. 175 Sure.8 A. I don't recall.9 Q. 176 Whilst you refer to the fact that this would be of benefit to the local10 authority, Mr. Tiernan, that would only be upon the assumption that the pipe11 work infrastructure was going to come into public ownership; isn't that right?12 It would only benefit the local authority if the pipe work infrastructure was a13 public sewer; isn't that right?14 A. Yes.15 Q. 177 In the other hand you knew from the contract you had signed, that you were16 expressly precluded from allowing this to become a public sewer; isn't that so?17 A. Yes.18 Q. 178 It was designed, specifically, to benefit the private interest of the persons19 who retained the ownership in the Coolamber subsoil after you bought the land20 itself; isn't that right?21 A. That's right.22 Q. 179 So there could be no benefit to the local authority, though there definitely23 could be a benefit to the individual private promoters of any scheme which24 would develop the 60 acres; isn't that right?25 A. That's right.26 Q. 180 And did that lead you to believe that Mr. Lawlor was going to have to either27 (A) deal with the owners of Coolamber, who would have this right to control28 effectively the drainage of his lands or possibly that he was one and the same29 as the vendors of the lands to you?30 A. That thought crossed my mind.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

341 Q. 181 Right. Did you raise it at all with him in any of the discussions that you2 had?3 A. I did not ask him if he had an involvement in Southfield at the time.4 Q. 182 Okay. Did Mr. Lawlor indicate --5 A. Now, it should also be said that the drainage that was put in by me could have6 drained other lands, apart from Lawlor's.7 Q. 183 Yes. You mean lands --8 A. Exclude Lawlor's.9 Q. 184 Are you talking about lands to the west or are you talking about lands to the10 east?11 A. His lands, his 30 acres are not the only 30 acres that could go into it.12 Q. 185 I'm sorry.13 A. Now, I accept that it would make more sense, the adjoining lands which is his,14 to go into it first and not bypass his. But it would be a possibility.15 Q. 186 Would they be --16 A. Foolish and all as it sounds.17 Q. 187 Would they be the Airlie Stud lands or the Stassen lands?18 A. No, it would have to be north of, it would have to be south.19 Q. 188 South again?20 A. Yes, because I think that --21 Q. 189 If you go south --22 A. West and north is falling away.23 Q. 190 South of you is the railway track.24 A. Towards the railway.25 Q. 191 The entitlement of course of anybody to get into the infrastructure was one26 which was dependent upon persons other than yourself, in other words the27 vendors, giving consent to drain whatever the lands were?28 A. Correct.29 Q. 192 Insofar as you had any ongoing discussion recently with Mr. Lawlor as you30 mentioned yesterday in connection with the Valley Holdings situation, ValleyPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

351 Holdings being the company which now owns the infrastructure. You remember2 telling us yesterday that you spoke with Mr. Lawlor, probably at the beginning3 of last year when he discussed with you what the position was as regards the4 infrastructure under Coolamber. He asked you, you say, whether or not it had5 been taken in charge yet. You remember that?6 A. Yes, I did say that and it did happen.7 Q. 193 Right.8 A. In fact, those services are in charge.9 Q. 194 They are in charge?10 A. They're in the charge of the County Council.11 Q. 195 Yes. Was that by way of an assignment, do you know?12 A. Well it's whatever the standard procedure is. I'm unsure now of the13 terminology.14 Q. 196 Right. But you weren't a party to it because you didn't own --15 A. I was, yes, a party to it.16 Q. 197 Were you?17 A. Yes.18 Q. 198 On what basis was the pipe work infrastructure, as far as we know is owned by19 Valley Holdings Limited --20 A. Well I was the developer of the lands.21 Q. 199 Yes.22 A. And requested the local authority to take the estate in charge.23 Q. 200 But you didn't own the infrastructure that you're asking them to take into24 charge. You owned the roads, is it the roads that you're saying they took in25 charge?26 A. Well as far as I'm concerned the whole development is in charge.27 Q. 201 Right. The discussions which you had with Mr. Lawlor then, following upon the28 acquisition of the lands, they involved, I take it, not only him advising as to29 what his own personal vote would be but also what he believed the likely30 outcome of such a proposal would be when it came for consideration before thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

361 body of councillors; is that right?2 A. Just repeat that, please?3 Q. 202 When you discussed the matter with Mr. Lawlor, did you discuss only the4 question of his own vote or did you discuss, for example, how the Fianna Fail5 vote was likely to go in the event of your proposing a motion or in the event6 of your having a motion proposed to rezone the lands?7 A. I don't remember specifically, but it would be normal and natural that there8 would be a general discussion about all the groupings.9 Q. 203 Well would there be a --10 A. There's no way I had a discussion with him, Mr. O'Neill, about his own vote11 only and other votes not being talked about.12 Q. 204 I accept that that would seem unusual if that had been the case.13 A. It didn't happen.14 Q. 205 Did you have before you a list of the councillors who were the elected15 representatives at that particular time and did you go through it to ascertain16 what was likely to happen, to see whether or not at the end of the day the vote17 would go in your favour as opposed to --18 A. Mr. O'Neill, I wouldn't have a list of councillors in my pocket. I would have19 had a list. It was readily available to everybody, but I was so familiar20 with the situation because of my political activities.21 Q. 206 Right.22 A. That three quarters of the 78 councillors would have known me to talk to.23 Q. 207 Right.2425 CHAIRMAN: We might just take a ten minute break.2627 MR. O'NEILL: Certainly.2829 THE TRIBUNAL THEN ADJOURNED FOR A SHORT BREAK AND RESUMED30 AS FOLLOWS:Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

371 MR. O'NEILL: Mr. Tiernan, please? Mr. Tiernan, I think you've told us that2 it was crucial to the success of your project that there would be a majority3 vote by the then elected members of Dublin County Council in favour of the4 material contravention application that you would initiate through councillors5 and which would be considered by the general body of councillors; Is that6 right?7 A. Yes.8 Q. 208 And obviously therefore it's a numbers game as to how many are going to be in9 favour of your project, how many are going to be against because it was a10 majority vote and it was necessary to secure the motion; isn't that right?11 A. I think so, yes, that may have been changed afterwards but I think it was a12 simple majority then.13 Q. 209 It was. And did you go through a list of the 78 councillors to establish who14 was going to vote in favour of your project and who was on the margins, who15 were the people who had to be influenced and who were the people you could take16 it as read would not support the project, it appeared to be a logical way of17 approaching it. I'm just wondering what modus operandi you did approach?18 A. Oh, I did, yes.19 Q. 210 Did you discuss with Mr. Lawlor any individual councillors who may or may not20 be either of assistance or otherwise to the project?21 A. Um, being honest about it, Chairman, I, when I discovered Mr. Lawlor would not22 be supporting it and when I assessed the situation for the umpteenth time over23 a few months. I felt that he was more of a liability than an asset and I kept24 my discussions to an absolute minimum any time I talked to him regarding who25 might vote and who might not vote.26 Q. 211 Well, firstly, did you count him then as a likely abstainer?27 A. I did.28 Q. 212 Reducing the -- require the electorate to 77 votes.29 A. I did. I did not see him voting. Well he told me at a certain stage, I'm30 just unsure at what stage, that he would not be voting for it.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

381 Q. 213 Right. But I think you've already agreed, Mr. Tiernan, in adopting that2 course he was in effect very much supporting the project because to do3 otherwise would have been, as you described, the kiss of death to the project?4 A. Yes, that may not have been my reaction the first time that I sensed this. It5 may not have been. I just don't know, but I certainly developed that view at6 an early stage.7 Q. 214 Right. And did --8 A. That any, Chairman, that any enthusiasm for him for it would be the kiss of9 death.10 Q. 215 And I think that, did Mr. Lawlor offer you any advice as to what your modus11 operandi should be, as to what system or what process you should embark upon in12 order to canvass the support of the remaining councillors?13 A. Chairman, I'm sure he did because there was one thing about him, he was never14 short of views and advices. All of which I took cautiously. I could use15 other terminology to describe it, very, very cautiously. And consequently,16 did not show my hand as far as canvassing was concerned.17 Q. 216 Right. Had you --18 A. Very much to him.19 Q. 217 Had you in mind, in your discussions with Mr. Lawlor, that you personally would20 canvass each of the remaining councillors or was it your intention that you21 would engage a PR consultant or a professional lobbyist of some sort to conduct22 the canvass on your behalf?23 A. I myself had intended to canvass them, all the councillors myself, because as I24 said before the break, the vast majority of them knew me. It's okay and I say25 I knew them. But I felt that it is much more advantageous if the person to be26 canvassed knows the person that's canvassing them.27 Q. 218 Right.28 A. Than the other way around.29 Q. 219 And did you intend then to canvass people of the Labour Party and Fianna Fail30 persuasion, albeit that those who knew you would know that your politicalPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

391 preferences were clearly Fine Gael; isn't that right?2 A. And that applied to three quarters of them.3 Q. 220 Yes.4 A. I never --5 Q. 221 I'm asking you whether you intended to canvass all of those, not only those6 within the same political grouping as you would associate yourself with?7 A. No, I intended to canvass others, myself.8 Q. 222 Yes. Did Mr. Lawlor offer you any views as to whether or not you should9 engage outside assistance or support in the canvass?10 A. He did at some stage. I just don't have the date of it, I may have forwarded11 that to the Tribunal.12 Q. 223 Yes.13 A. The date, but I don't recall the date now.14 Q. 224 Right. Well did he in fact ask you or did he suggest to you that you should15 engage a person to canvass your proposition to the councillors?16 A. Yes, he did, he did. And I have disclosed that name.17 Q. 225 Yes.18 A. But I don't know what month or what year it was.19 Q. 226 Right. In any event, do you know if that person carrying out any significant20 canvass for you or did you yourself in fact carry out the canvass that was21 necessary?22 A. Well, I myself personally contacted and met three quarters of the councillors.23 Q. 227 Right. We can date the activities by reference to the acquisition which was24 on the 24th of November of 1989; isn't that so?25 A. Yes, it is.26 Q. 228 You engaged Mr. O'Connor, Mr. O'Connor lodged a planning application on your27 behalf on the 12th of January 1990. We see that at page 923.2829 Page 923 here is a letter from Mr. O'Connor to the planning department, do you30 see that?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

401 A. I do, yes.2 Q. 229 And inset in the right hand corner there you'll see a copy of the notification3 which was published in the newspaper under "Dublin County Council. Permission4 sought for development etc."5 A. Yes.6 Q. 230 And that particular application was the application which was to be the subject7 of a consideration, ultimately, by the body of members of the council; isn't8 that right?9 A. That is right.10 Q. 231 We'll see that that is dated the 12th of January 1990. Less than two months11 really after you'd acquired the land; isn't that right?12 A. That is right.13 Q. 232 And by that time your architect had put together the plans. And can you tell14 us to what extent you had conducted a canvass of the county councillors by that15 date?16 A. I would say very little, I don't have exact particulars. I do not remember.17 But I would say very little at that stage.18 Q. 233 I mean, obviously in instructing your architect to lodge this application at19 this particular time on the 12th of January of 1990, you knew that the council20 before whom this application was being laid, simply could not grant you the21 planning permission that was sought irrespective of its quality or its merits22 because the land was not rezoned; isn't that right?23 A. I did understand that fully.24 Q. 234 Right. So that within the two month period that would be allowed for the25 council to consider this application, you would have to have a material26 contravention application before the council or there would be automatic27 refusal; isn't that right?28 A. Absolutely.29 Q. 235 Absolutely. Do you remember particularly what canvass you had carried out to30 ensure that the councillors who ultimately proposed this motion would do so?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

411 A. I don't remember it now.2 Q. 236 Right.3 A. Perhaps I had spoken to a few at that stage. But there was no, there was no4 big canvass carried out over the Christmas period which would have preceded the5 application date.6 Q. 237 Yes. I mean, obviously, the Christmas period takes out quite a number of7 weeks in the political life, certainly, of elected representatives and their8 accessibility to you as a person seeking to canvass them is consequently9 limited; isn't that right?10 A. Yes and no. Yes and no.11 Q. 238 Well --12 A. If one wanted to call to their homes, it might be a time to get them at home as13 against a non-festive period, but I doubt if I started calling to people's14 homes over the Christmas period. I would tend to think I did not do that.15 Q. 239 Is it the case that whatever canvassing you carried out, it didn't start until16 such time as you were secure in the knowledge that you had the property17 acquired by means of a contract, in other words --18 A. Oh, you can take that as absolute.19 Q. 240 Sure. Otherwise you would be advancing the cause of somebody else other than20 yourself.21 A. That wouldn't arise.22 Q. 241 Sure. So we can take it that you didn't start your canvass until sometime23 after the 24th of November; isn't that right?24 A. Yes, and I would say after the lodgement of the planning application. That's25 what I think now.26 Q. 242 Right. I suggest to you that that has to be incorrect, Mr. Tiernan. Because27 we'll see that the councillors, who were to propose the motion to the council,28 did so by a motion which was four days after the planning application was29 lodged in Dublin County Council?30 A. Okay. Well I stand corrected there then.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

421 Q. 243 We'll see that at page 931 where three members of the council proposed the2 following "We the members of Dublin County Council pursuant to Section 4 of the3 City and County Management (Amendment) Act 1955, hereby require and direct that4 the Dublin City and County Manager or any Assistant Manager, having delegated5 powers, to grant planning application number 90A/61 in the name of Tiernan Home6 Builders Limited.78 This planning application is for 472 houses, 5 shop units, 5 overhead9 apartments, medical centre with four apartments overhead and public house at10 Finnstown, Lucan."1112 The councillors signed it, and you'll see the date that it's, date stamped in13 as having been received as the 17th of January 1990.14 A. I see that.15 Q. 244 So there would appear certainly to have been very expeditious canvass of16 councillors sufficient to allow three of them, at this point in time, to17 propose a motion before the body of the members to give effect to a material18 contravention; isn't that right?19 A. That's right. Now, two of them councillors would have been very well known to20 me.21 Q. 245 Yes. Well do you say that that influences in some way the fact that they22 would have exercised their --23 A. No.24 Q. 246 -- quasi judicial discretion in deciding to bring a motion before the council?25 A. No, I think not.26 Q. 247 No. And if we take out the Christmas out of the period between the 24th of27 November and the 17th of January. There was a very limited time in which you28 could actually canvass; isn't that right?29 A. Yes, indeed.30 Q. 248 So you managed to convince these three councillors in any event to propose thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

431 motion and we'll see that once they do so it triggers a particular mechanism in2 the planning department; isn't that right?3 A. Yeah, I would expect so. I just don't recall now what it triggers.4 Q. 249 We'll see at page 933, that there is a record of Executive Business and5 Managers Orders, and this is a manager's order ultimately, but it's based on6 the planning officer's advice regarding the status of a motion which was7 brought under Section 4.89 And it recites in the first paragraph, the fact of there being a motion10 proposed by the councillors. It then indicates that the planning application11 referred to is 90A/61 which is your planning application. It goes on to say12 that "The planning application, the subject of the resolution, would be a13 material contravention of the council's Development Plan." And consequently14 he says "I recommend in accordance with section 39D of the Local Government15 Planning and Development Act 1976, that you make an order requiring the16 provisions of subparagraphs 1, 2, and 3 of paragraph A of subsection 3, Section17 26 of the Local Government Planning and Development Act 1963 as amended, be18 complied with in this case and that a copy of the order be furnished to each of19 the signatories of the proposed resolution." You'll see at page 935 that the20 Assistant City and County Manager, Mr. O'Sullivan, having received these21 advices from the planning officer then gives a direction as an order "I hereby22 direct that the provisions of aforementioned sections be complied with and that23 a copy of the order be furnished to the signatories of the proposal pursuant to24 Section 4."2526 And we'll see that, in layman's terms, that the effect of that decision is27 reflected in the letters which went to the councillors who had proposed the28 motion. The first of which we see at page 936 on screen.2930 And in the second paragraph of that you'll see that the principal officer whoPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

441 is writing the letter says "The effect of this order is that the motion2 submitted under Section 4 shall cease to have effect and that the planning3 application shall be processed in the manner provided under the Local4 Government Planning and Development Act when a proposal materially contravenes5 the council's plan."67 So that once the matter had come to the council management in the way in which8 it had as a proposal and once it was identified that to accede to a Section 49 motion would involve a material contravention, that triggered the procedure in10 the Local Government Planning and Development Act, which was obliged to be11 followed by the council. And amongst other matters, that involved the12 publication in the national newspapers of the council's intention to consider13 making a material contravention to the existing Development Plan for Dublin at14 the time. The purpose of that, I think you know Mr. Tiernan, was that a third15 party objectors, who wouldn't have been circularised with the application of or16 the proposal of the councillors, would learn, through the public advertisement17 procedure, of the fact that the council was considering such a proposal.18 A. Okay, I understand now.19 Q. 250 Okay. And that then allows the council to receive either letters of support20 or letters of complaint which might be considered subsequently at the meeting21 at which the procedure to allow for a material contravention would be22 considered; you understand that?23 A. I do.24 Q. 251 That's how it's done. And I think you were probably made aware of the fact25 that following upon the publication of this notice, there was an objection26 raised through the firm of Keane Murphy Duff, Chartered Architects, Designers27 and Project Managers on behalf of a Mr. Jackson who was the owner of Coolamber28 House and its surrounding lands; isn't that right?29 A. I remember that.30 Q. 252 Right. As we see from the plan, the initial acquisition of these landsPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

451 excluded the house and its amenity lands. The persons who purchased the lands2 tendered only for lots 2 and 3, thereby leaving the house and its original3 lands as an island surrounded by the development with the exception of the4 Newcastle Road; isn't that right?5 A. Yes.6 Q. 253 And that individual, on learning of the intention to alter the status of the7 lands from agricultural to residential through a firm of chartered architects8 and designers and project managers lodged an objection with the Dublin County9 Council. We see that at page 961.1011 And here they say "We act only behalf of property owner JWR Jackson of12 Coolamber House, Lucan, whose property adjoins the proposed development as13 indicated in the enclosed map.1415 Our client objects to the proposed development and also objects in the16 strongest manner to the intention of Dublin County Council to consider granting17 permission for the proposed development", he recites what that is "our client18 strenuously object to the application on the following grounds:1920 1. The land is not properly zoned. The land is currently zone B, which is to21 protect and provide for the development of agriculture.2223 2. The develop is premature by reason of inadequate provision of sanitary24 services existing in the area.2526 3. The development is premature by reason of the inadequate provision of27 water services to the area.2829 4. The development is premature by preempting the proper and established30 procedure for a review of the Development Plan which is currently underwayPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

461 within the county borough area.23 5. The development is premature in that the land which is currently serviced4 and properly zoned to the east, in the areas of Ballydowd upper and lower, the5 Esker area, Ballyowen, Balgaddy and Willsbrook is currently undeveloped. These6 lands have been serviced at considerable cost to the taxpayer and it is now7 proposed to incur additional expenditure by providing major infrastructural8 work to service the lands in question.910 6. The development is premature in that the traffic generated by the proposed11 development would saturate the existing Newcastle Road, would create congestion12 at existing road junctions and would therefore create a traffic hazard. No13 road proposals for the widening of same are indicated on the draft action plans14 or on the draft schedule plans.1516 7. The proposed reservation line indicated on the plans dramatically affect17 the gate lodge attached to Coolamber and if implemented as shown would18 necessitate the demolition of the gate lodge. Our client is currently19 renovating same at a cost of 15,000 pounds and as such constitutes a gross20 infringement upon the individual's right both to use and improve private21 property.2223 8. The proposed development incorporates a public house which we understand is24 situate within one mile of any existing premises at 12th lock. My client also25 objects to the location of the public house within close proximity of his26 premises having regard to the traffic generation, noise, nuisance, loss of27 amenity and privacy as would be associated with same.2829 9. When our client was proposing to purchase the property in 1987 he30 undertook searches and attempted to ascertain the views and plans of the CountyPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

471 Council in relation to possible proposed development within the area. The2 stated policy objectives within the Dublin County Council Development Plan 19833 were clear and unambiguous and it is for this reason that any attempt to change4 land zoning or land uses by the use of a material contravention of the5 Development Plan is ^an horde. The proper processes for undertaking such6 changes within the draft development review, when all parties, including my7 client, should be given adequate notice to make proper representations in the8 proper quarters on the matter.910 In effect, if permission is granted on foot of a material contravention of the11 Development Plan, the due processes of consultation, examination and12 representation will be bypassed which will result in a procedure which is13 undemocratic and unfair to the individual.1415 We strongly plead that the application be turned down. And that in the16 interest of proper planning and development of the area that the provisions of17 the Development Plan be adhered to." And they make a number of further points18 then in relation to the retention of agricultural land, action plans for19 service lands etc.20 A. There's a lot in that.21 Q. 254 There is.22 A. But what I would say to you in a general way, Chairman, Your Honour, is this;23 item 2 and 3 is incorrect.24 Q. 255 Yes. These, we will see, Mr. Tiernan, as we go through the documentation,25 that you engaged, firstly, your architect and subsequently your lawyers to26 address these objections in written format. And those objections or those27 comments in addition to these comments were all considered before the general28 body of the members before they reached their decision. I don't intend, just29 by reciting this, to exclude your response to it. I'll be moving to that.30 Just in reading it I'm just setting out for the Tribunal what the nature ofPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

481 this particular objection was. It will be followed by other documentation,2 but of course if you want to comment on any particular aspect at this point you3 may do so. But I'm just telling you that we will reach it in due course.4 A. I'll be guided by you, Mr. O'Neill.5 Q. 256 Right. This objection was an objection to the plan. But equally, the6 council received other submissions which supported the plan. One of them was7 from the Arthur Griffith Park Residents Association. Which see at page 966,8 where, on the 6th of March 1990, it indicates "Our committee met Mr. Joe9 Tiernan of Tiernan Home Builders on the 5th inst. Was fully briefed on the10 proposed development referred to above regarding roads, footpaths, public11 lighting and the developments impact on the area. And having considered the12 matter fully and in great detail we write to advise your department that our13 committee has no objection to the proposed development and fully supports the14 proposed development."1516 That was one of the residents associations that supported the project. And I17 think that it was also supported by Lucan Community Council, as we see at page18 966. Where -- I beg your pardon. 967. Where Mr. Joseph Byrne, who is the19 secretary of the Lucan Community Council, writes to Mr. Al Smith, principal20 officer, as follows "We refer to the above planning application for a housing21 development at Finnstown.2223 Our committee met with the developer Tiernan Home Builders Limited and24 discussed the application in detail.2526 This council, having discussed the application in committee and also with a27 wide cross-section of residents in Lucan, wish to state that we fully support28 the planning application for the following reasons.2930 1. We believe that the development will enhance the area and in particular thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

491 Esker parish which already has the necessary infrastructure, such as church,2 schools, hotels, shops and leisure area.34 2. We understand that the necessary foul sewer and water drainage is5 available.67 3. The Newcastle Road urgently requires widening and the provision of safe8 foot paths and public lighting. Levies from this proposed development would9 ensure that this necessary and urgent would work would proceed.1011 We would therefore request that this planning application be granted12 permission, subject to the appropriate conditions such as boundary treatment,13 landscaping, etc."1415 I take it from those last two references that we have looked at, Mr. Tiernan,16 that you didn't confine your lobbying activities solely to elected17 representatives but you also canvassed local individuals and community groups;18 is that right?19 A. I did, yes.20 Q. 257 Were you introduced --21 A. I had forgotten completely about them, but I did.22 Q. 258 I'm happy to remind you of them Mr. Tiernan.23 A. Okay.24 Q. 259 I'm wondering whether you were introduced to these particular community groups25 by any individual?26 A. I was.27 Q. 260 Who?28 A. Deputy Lawlor.29 Q. 261 I see. Now, once the notice in the press has been published and the various30 reports and comments of the public have been elicited. There is is also aPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

501 process going on within the planning department itself to ascertain whether or2 not the project is one which would receive their support; isn't that right?3 You're aware of that procedure? Let me put it another way, Mr. Tiernan. The4 council when it sits as a council to consider the matter, is not going to5 consider it solely on the basis of your architect's submission as to the merits6 and the commentary of other parties in objection. It also listens to the7 views of the council officials themselves as expressed through the manager;8 isn't that right?9 A. Yes, I would think so, yes. I'm sure that is --10 Q. 262 And the manager, in effect, collates the various reports and views of the11 departments under his control, Roads, Sanitary Services, Planning Department,12 etc. and presents all of those reports in a format where it can be discussed by13 the body of the council members; isn't that right?14 A. That is right.15 Q. 263 And we'll see by reference to the minutes of these various meetings, the16 occasions upon which the council considered the application which was being17 proposed by the councillors who had originally advanced the Section 4 motion.18 The first minute that we will look at is at page 975, which records a meeting19 of the County Council on the 12th of March of 1990.2021 It refers to the application itself. It goes on to report as follows:22 "Report register reference 90A/61 refers to the application for planning23 permission for development described as incorporating 472 houses, 5 shop units,24 etc. The application was received by the planning authority on the 12th of25 January 1990. The site is located in the County Development Plan with the26 objective to provide for the development of agriculture. A notice of the27 proposed resolution pursuant to Section 4 was submitted by the councillors on28 the 17th of January of 1990. This motion sought to direct that a decision be29 made to grant planning permission for the proposed development. As the30 proposal would be a material contravention of the County Development Plan anPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

511 order was made as required by law, directing the procedures required prior to2 considering making a decision to grant permission be initiated.34 Notice of the council's intention appeared in the Irish press on the 14th of5 February 1990. Since that date a considerable number of representations have6 been received. Some in favour of the proposal and a number against the7 proposal. Copies of these representations received up to and including Friday8 9th of March have been circulated separately at this meeting, the originals of9 these representations are available for inspection.1011 The area is located south and west of area zoned for development in the current12 Development Plan. Areas adjoining further west and south are not so zoned,13 and the site is currently in agricultural use. It is fronted by county roads,14 which would be substandard. In the context of the kind of development15 proposed. It is outside the designated catchment area for drainage services16 and if the development were to take place, the drainage capacity so used would17 not be available for other lands already zoned for development. It is18 proposed to take the foul and surface water services by crossing existing19 developed open space, that is Grifeen Park. No arrangements have been made20 for wayleaves for the crossing of this land which would cause serious21 disruption to the park.2223 The road's engineer reports that a consideration has been given to granting24 permission "the section of the development being served by access from Old25 Esker Lane should be the subject of a separate application as it is premature,26 as the road network in the area has not been finalised. He further reports27 regarding the remainder of the site that he would require.2829 1. Adequate setback of road 11 from the improved Newcastle Road alignment to30 provide adequately for turning movements. It should be noted that this willPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

521 have repercussions on the internal site layout, a minimum of 12 meters to be2 provided between the carriageways.34 2. 6 houses only to have access on to turning circles on the cul-de-sacs or5 the circles to be revised to provide for adequate road frontage.67 3. Applicant to indicate if the lands required for the improvement of8 Newcastle Road on the Coolamber site excluded from the application, can be made9 available for road improvement.1011 4. Applicant to indicate willingness to contribute 1,420 pounds towards the12 improvement of the road network."1314 CHAIRMAN: Sorry. Could we have the next page.1516 MR. O'NEILL: Sorry. 976. I read the first four of the bullet points there,17 Mr. Tiernan, which --18 A. That's okay.19 Q. 264 I think the one that will be considered at greater length is No. 3, that is20 "The Applicant to indicate if the lands required for the improvement of21 Newcastle Road on the Coolamber site excluded from the application had been22 made available for road improvements." We know that that formed the subject of23 considerable exchange later. I just draw your attention to the fact that it's24 mentioned.25 A. Okay.26 Q. 265 "The Sanitary Services engineer has recommended that permission be refused.27 In relation to foul drainage proposals he comments that as the proposal as28 proposed, the diameter of the pipe is oversized for the quality -- quantity of29 effluent which would be generated by the development and the gradient indicated30 would provide inadequate cleansing velocity. He also comments that thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

531 Applicant has not provided sufficient detail in relation to the internal2 drainage of the site and has not indicated that he can provide the wayleaves3 necessary to cross land not in his ownership.45 In relation to surface water drainage he comments that it is proposed to drain6 sections of the site to streams on the southern and eastern boundaries. The7 Applicant has failed to demonstrate that these streams have the downstream8 capacity to accept the flow.910 The application does not contain a proposal for the piping of the streams11 bounding the site and does not indicate the means of dealing with streams12 within the site. The engineer further states that the proposed main outfall13 sewer is inadequate to deal with flows generated within the site at the14 gradients indicated.1516 With regard to water supply the engineer comments that the existing water main17 infrastructure has not been designed to cater for the proposed demand.1819 These reports by the engineering department point to two serious defects to20 this application. It is clear that even apart from strategic planning21 considerations the layout proposed is unsatisfactory and that major revisions22 to it would be required. It is also clear that the technical arrangements23 have not been adequately detailed.2425 The major consideration, however, which must be taken into account in dealing26 with the application, is that the proposal represents a very significant27 deviation from the policy of the County Development Plan.2829 At its meeting held on the 8th inst, the County Council directed that a further30 report be submitted to it as part of the Development Plan review providing forPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

541 separate development policies for the Lucan and Clondalkin areas and the2 preparation of plans in response to that direction is being put in hand.34 This present application would completely preempt that process. The5 consideration of a development of almost 500 houses at this location" and6 continues to 977, "would in itself preempt the council's decision in a major7 way and would increase pressure for further development on lands to the south8 and west of the site. That it is the Applicant's intention to provide for9 such further development would seem to be indicated by the proposed provision10 of the oversized pipes for the drainage of the site. The sanitary services11 engineer has indicated that these oversized pipes would not provide a proper12 engineering solution for this development, taken in isolation.1314 If the council does decide that it wishes to see further development focused on15 this part of the west county, the proper and orderly course to adopt is to make16 such a decision. In the context of the Development Plan review process in17 which it is already engaged. If such a decision were made, it would then be18 possible to plan the development of the area in an orderly way, having regard19 to whatever zoning boundaries were set by the council's decision.2021 If, on the other hand, the council were to decide to grant permission for this22 proposal, it is limiting it's options and making a decision which would have a23 major effect on the strategic planning of the area in the context of dealing24 with one planning application only.2526 For these reasons, the council is recommended not to pass the resolution." It27 goes on to say "the file is available for inspection at the meeting."2829 So this was the information which was made available to the elected members as30 of the 12th of March 1990, in relation to their consideration of the proposal.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

551 A. Very negative report.2 Q. 266 A very negative report, yes.3 A. In fact, damning.4 Q. 267 We know that the resolution did not come to be reported -- to be voted upon at5 that meeting. Effectively, I think, because there was other business that6 took up the activities of the Council on the day. But it fell back for review7 at a later period and it was listed to be dealt with on the 2nd of April, about8 three weeks later.910 And in the interim, there were a number of reports prepared, which was an11 ongoing process, obviously. And the first -- in the first of those we see, at12 page 982, there is evidence of contact between the senior engineers in the13 council and your architect.1415 This deals with proposals which he had made to them by way of a letter of the16 9th, addressed to Mr. McDaid, a senior engineer.1718 It says, "Your proposal for permitting the controlled egress of surface water19 into the intended foul sewer, as indicated in the above application, is20 unacceptable for the following reasons.2122 1. Dublin County Council have a strict policy of separation of foul and23 surface water wherever possible or whenever possible.2425 2. The proposed discharges to the Esker pumping station and unnecessary26 pumping charges will be incurred.2728 3. Surface water flows are intermittent and would be absent when most29 required or in exceptional circumstances could cause Esker pumping station to30 overflow.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

5612 4. Acceptance of the original proposal in its modified or unmodified form is3 unacceptable since it implicitly proposes future decisions or compromises4 perhaps future decisions of the council in respect of the upstream lands. At5 the present time there is no reason to believe that this system will ever carry6 the flow that would be, that would render it a viable separate foul sewer7 system. Apart from the above, the foul sewer consideration, there are also8 problems associated with the disposal of surface water."910 Again, a rather damning report; isn't that right?11 A. Total.12 Q. 268 And it was followed then by a sanitary services report, which we see at page13 983. Again, this was a report by sanitary services, internal report. But it14 would find itself considered by the members obviously at a meeting. It dealt15 with the:16 "Foul sewer, refusal recommended as proposed.17 The diameter of the pipe is undersized for the quantity of effluent which would18 be generated by the site and the gradient indicated would provide inadequate19 cleaning velocity notwithstanding the above. The Applicant has not provided20 sufficient details in respect of pipe diameter and gradient, wayleaves across21 lands not in the Applicant's ownership would be required.2223 Surface water, refusal recommended.24 1. The application proposing to drain sections of the site into streams at the25 eastern boundary. The Applicant has failed to demonstrate that these streams26 have the downstream capacity to accept the flow.2728 2. The Applicant has not submitted a proposal for the piping of the stream29 boundary and have not indicated the means of dealing with the streams."30Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

571 And then it goes on to say that "Notwithstanding the above, the proposed main2 outfall sewer is inadequate to deal with the flow generated within the site and3 the gradient indicated. The Applicant must submit alternative proposals.4 Proposals must be submitted to the outfall structures for the main outfall5 discharges to the Grifeen River.67 3. Long sections are required for the proposed internal drainage system.8 Wayleaves are required from the lines of the outfall networks, etc."910 Again, that's the 16th of March and again rather damning, isn't that so?11 A. Another damning, unhelpful publication.12 Q. 269 Right. Now, I mentioned to you earlier that the council's views, and indeed13 your own engineer's views, were being communicated to Mr. John Caldwell in the14 course of your application in relation to the lands, at a time when15 Mr. Caldwell was apparently the solicitor acting for the vendor. And you16 indicated that you didn't have any recollection of that taking place?17 A. I didn't and I don't really, no.18 Q. 270 Right. There are just two memoranda which deal with that, that I will draw19 your attention to.2021 Firstly, at page 988. There is a memorandum which is an attendance prepared22 by Mr. John Caldwell. I'm afraid his writing is not immediately decipherable.23 But we can gather from it that it was at the top there, "An attendance on John24 O'Connor at 2:30 p.m. on the 21st of March 1990." That is the period now that25 we're discussing.26 A. I can see that.27 Q. 271 As we go down through it we'll see that what is being discussed is the detail28 of the meetings with Mr. McDaid and Mr. Hannigan, who were the sanitary29 services engineers. These were engineers who Mr. O'Connor was meeting and30 communicating with and the content of those meetings is being relayed here toPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

581 Mr. Caldwell and being noted by him. Both the council's views and then as we2 see "per J O C," his own arguments which he was advancing to the council.3 A. Yes.4 Q. 272 Right? That document continues on to 989. And we'll see that that was5 followed up then by a subsequent attendance taken some days later, on the 23rd6 of March 1990, at page 933. I beg your pardon, 993. And this might be a7 telephone attendance. At 11:45 on the 23rd of March 1990, the subject of8 Southfield/Tiernan. Again, there is discussion of the 60 to 70 acres westward9 of the site, the proposal to drain those lands, the necessity or otherwise to10 connect into the manhole. The precise levels, 53.66 on the Newcastle side,11 ground levels directly opposite. All of this indicating fairly detailed12 exchange of views between Mr. Caldwell and Mr. O'Connor regarding the proposed13 development; isn't that so?14 A. Absolutely.15 Q. 273 And this is your proposed development, of course, Mr. Tiernan, not16 Mr. Caldwell's as far as we know.17 A. Yes.18 Q. 274 And do you know of any reason why the solicitor who was selling the land on19 behalf of the vendor should be engaged with your engineer to the extent that it20 would appear from these communications here, where they are discussing in21 detail the manner of draining the lands, which, if the contract was proceeded22 with, would remain the lands of your lands and not the vendor's?23 A. Most unusual.24 Q. 275 In addition to dealing with the drainage of your lands, there's also reference,25 we'll see at page 994, to the capacity to drain the lands at Somerton, which26 are Mr. Lawlor's lands.2728 We see that on the fifth line down. Which deals with levels at Somerton.29 "Won't drain to the Tyrell's lands - far too low". Do you see that?30 A. I do, yes.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

591 Q. 276 So that Mr. O'Connor's brief, apparently, extended to discussion on the2 capacity of the scheme to drain the lands of Mr. Lawlor on the opposite side of3 the road; isn't that so?4 A. Yes. Well that would appear to be the situation.5 Q. 277 It would.6 A. Yes.7 Q. 278 And could I suggest that the contents of these exchanges between Mr. O'Connor8 and Mr. Caldwell were matters which were discussed between yourself and9 Mr. Caldwell. It would appear, certainly, we see at page 997 --10 A. They probably were.11 Q. 279 Page 997 is the conclusion of the lengthy memorandum of the 23rd of March 1990,12 dealing with the capacity of the lands to drain the surrounding areas.13 Immediately above Mr. Caldwell's initial J there you'll see "I said think about14 the position and call Joe Tiernan." Beneath that --15 A. I see that.16 Q. 280 -- there's a reference to "telephone Joe Tiernan at Abbey House" I think that's17 your office at a certain time. "You were not in. Back at 2:15. No reply"18 to the two numbers that he notes here.1920 So we may take it that you were contacted by Mr. Caldwell. And he discussed21 with you the detail of his concerns or views gleaned from his indepth22 conversation with your engineer and architect, Mr. O'Connor, regarding the23 drainage of the lands; isn't that right?24 A. Yes. I must have been contacted.25 Q. 281 What was the purpose of all of that, Mr. Tiernan can you tell us? I would26 understand how you would be acutely interested in this. But what concern can27 you identify of Mr. Caldwell having in how you were to go about this process?28 A. Well he must be concerned that there would be drainage capacity for other lands29 as incorporated in the contract.30 Q. 282 Very good.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

601 A. I don't know from seeing that documentation here this morning how the levels2 relate to the contractual document, where pipes of a certain diameter were to3 be put in with the capability to drain a further 60 acres.4 Q. 283 I think we find that --5 A. I don't know which drainage he's talking about there. Whether it's foul or6 surface water.78 CHAIRMAN: Sorry, Mr. O'Neill it's now one o'clock. We'll rise until two9 o'clock.1011 THE TRIBUNAL THEN ADJOURNED FOR LUNCH.12131415161718192021222324252627282930Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

611 THE TRIBUNAL RESUMED AS FOLLOWS AT 2:00 P.M.23 CONTINUATION OF QUESTIONING OF MR. JOSEPH TIERNAN4 BY MR. O'NEILL AS FOLLOWS:56 MR. O'NEILL: Mr. Tiernan, please? Mr. Tiernan, before lunch we were dealing7 with the events which had taken place between the matter, first being listed8 before the council on the 12th of March 1990, and the events which were to take9 place before the next meeting of the council which was on the 2nd of April of10 1990. And we had looked at some of the sanitary services reports which11 carried negative implications for the proposed development of the lands on foot12 of your application; isn't that right?13 A. That is right.14 Q. 284 And we looked at documentation which was apparently prepared by Mr. John15 Caldwell, which indicated that he was in contact with your architect,16 Mr. O'Connor, and Mr. O'Connor with him, about the details of the design of17 the pipe infrastructure, perhaps with particular reference to its capacity to18 drain adjoining lands, including those of Mr. Lawlor, at Somerton; isn't that19 right?20 A. That is right.21 Q. 285 And it appears from that correspondence that you were approached by or22 contacted by Mr. Caldwell to discuss those details after the meeting which had23 taken place in the communications which he had had with Mr. O'Connor; isn't24 that right?25 A. Yes.26 Q. 286 So you were being acquainted of those events. In addition to the developments27 which were taking place as between yourself and Mr. Caldwell at that point in28 time, by way of discussing the respective merits of the drainage which was29 being proposed, the adjoining owner, Mr. Jackson, was again raising his30 objection to your proposal; isn't that right? Specifically on this occasionPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

621 directed towards criticising the application which was made on the basis that2 it included lands which he said were his, it failed to draw the attention of3 the council to the fact that he did not own lands over which it was intended4 that road widening would take place and other objections of that nature; isn't5 that right?6 A. Well, that's what he said.7 Q. 287 Yes, of course. I'm not suggesting that you agreed with it.8 A. No, I disagreed.9 Q. 288 We'll see at page 1000, on the 26th of March 1990, Gerrard Scallan and O'Brien10 solicitors again wrote to Dublin County Council setting our their client's11 position.1213 We'll see at the very end of the page they say "Firstly, it appears that the14 planning application extends to property which is owned by our client, namely,15 a parcel of land fronting Coolamber House. The development will necessarily16 involve the demolition of our client's gate lodge. We are not consulted or17 approached in any way by the developers prior to the formulation of their18 proposal. As you are aware, it's strenuously opposed. Mr. Jackson under no19 circumstances will contemplate the sale of the land and accordingly the20 developers do not now nor are they ever likely to require the requisite21 interest to seek the permission sought herein. Accordingly, same cannot be22 validly granted pursuant to the decision of Mr. Justice Henchy in the case of23 Frascati Estates and Walker."2425 They go on in the next paragraph to indicate that "The deliberate failure by26 the Applicant to bring this extremely important and relevant matter to the27 attention of the County Council is a grave representation and a material28 misstatement in relation to the application." And they make the general29 complaint in the last paragraph here that "There appears to be no reasonable30 basis upon which the County Council can contravene its own Development Plan andPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

631 to the zoning and infrastructure objectives therein adopted and override the2 advice of its own officials."34 So this was a further matter which was going to be on file and considered by5 the council when it resumed its deliberations for the meeting of the 2nd of6 April.78 Now, I'm wondering whether or not, when you received this particular letter, we9 have referred to and is on screen. Did you discuss that specifically with10 Mr. Caldwell or with anybody else?11 A. Well, I would certainly have discuss it with John O'Connor, my architect at the12 time.13 Q. 289 Right.14 A. And he advised me that he had been supplied with a map from the Roads15 Department of Dublin County Council showing proposed road widening opposite the16 lands referred to there.17 Q. 290 Yes. We'll see that the County Council law agent became involved once there18 was this suggestion in the letter from Gerrard Scallan and O'Brien that the19 application was essentially flawed because of the inclusion of property which20 was not in your ownership and we see at at page 1011 that on the 29th of March21 1990, a letter was written to the Law Department of the council as follows "I22 enclose for your urgent attention a copy of a letter dated 26th of March 199023 received from Gerrard Scallan and O'Brien, solicitors acting on behalf of Mr.24 Jackson of Coolamber House.2526 The planning application referred to is a material contravention of the27 Development Plan and is an item on the agenda of the County Council which is28 due to be considered at a special meeting which the Chairman has arranged to29 take place at 2:30 p.m. on Monday 2nd of April 1990.30Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

641 I shall require your advice on the matters raised in the letter prior to that2 proceeding so that I can advise the Chairman and Council as to how they should3 proceed. I enclose for your information the following documents ".45 And he provides the documents which we've already seen, and also the site6 location map, copy of the report from the senior planner and Keane Murphy7 Duff's letters, etc.89 Now, that request made of Mr. Loftus in the Law Department was followed by a10 supplemental report from the Roads Department which we see at page 1013. And11 here the Roads Department, that is Mr. Henry of that department, is addressing12 the issue of the road widening and capacity to take into account the roadway in13 front of Coolamber House.1415 "Our previous report indicated that the proposed development was acceptable16 provided certain road networks were carried out. This recommendation was made17 on the basis that the Newcastle Road would be improved along the complete18 frontage of the site including the section of Coolamber Road, Coolamber which19 was not in the development site. It was understood that the necessary lands20 would be available at this section to complete the road improvement works. We21 understand that this may well not be the case. If this is so, the proposed22 100 houses with access on to Newcastle Road, south of Coolamber would not be23 granted planning permission at this stage on the grounds that the necessary24 works to bring the roadworks servicing the site up to an adequate standard25 would not be carried out. In the absence of those works the proposal for26 these 180 houses would create a serious traffic hazard."2728 Now in addition to that difficulty, if it was the case that it had been29 indicated in the planning application that this work would be available, and30 if it was incapable of being done it would question, of course, the validity ofPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

651 the application in its entirety, I think you would accept that that is so?2 A. I would, yes.3 Q. 291 And as a result of that, and I think that concerned the council's law agent4 sought the opinion of counsel and Mr. John Gallagher senior counsel provided an5 opinion of the 31st of March of 1990, which we see at page 1014. You might6 remember this opinion Mr. Tiernan. It's dated the 31st of March 1990.78 This was an opinion which was prepared by counsel at the request of Dublin9 County Council named as the -- and at the request specifically of the law10 agent. And we see that it's dated the 31st of March 1990.1112 We'll see from the documentation that's available, Mr. Tiernan, that a copy of13 this opinion was available to you within a day and a half or two days of its14 having been prepared. Now, it's an opinion which was generated exclusively15 for the purpose of the Council and advising the Council. Can you indicate to16 the Tribunal how it is that you came to have possession of this document within17 that time frame?18 A. No, I cannot.19 Q. 292 You would accept, I think, that the legal advices being offered to the council20 were intended for their exclusive use, not for general circulation, and this21 document certainly didn't come into the public domain, nor was it publicly22 aired, I suggest, until such time you had had a copy of it in advance of that;23 isn't that right?24 A. Well I don't know whether I had or not, Mr. O'Neill.25 Q. 293 Do you not?26 A. Genuinely don't know.27 Q. 294 We'll see from page 1040, a letter which you wrote to your solicitor,28 Mr. Finbar Cahill, on the date of the 2nd of April 1990. In which you make29 specific reference to that opinion. "I refer to the above development and in30 particular to the opinion of John Gallagher, senior counsel. Last page hisPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

661 conclusion in particular at A which is self explanatory. The planning2 application does not include the lands. This is acknowledged etc." You3 discussed the merits or otherwise of this opinion which you sent by fax to your4 solicitor, Mr. Finbar Cahill, on that date.5 A. Yes.6 Q. 295 The opinion itself, as we see from page 1014 which was produced or dated the7 31st of March 1990. And accordingly, if you're referring to it in this letter8 to your solicitor you must have received a copy of it within two days of its9 having been written. And I am again asking you as to what circumstances you10 came to have this document?11 A. I genuinely don't know. Evidently somebody gave it to me.12 Q. 296 Yes, that is evident of course.13 A. Yes, that's evident. There wasn't even time to post it I would say.14 Q. 297 Yes. Well what contact did you have in the council who was providing you with15 the legal advices which were being produced by the solicitor to the council at16 that time?17 A. I had no contact, apart from going into the various departments.18 Q. 298 Right. I think you'd accept that if you went into a department, the last19 thing that would be handed across a counter to you would be the opinion of20 counsel on an issue which touched upon the entitlement of council to proceed in21 a particular way.22 A. I never got a document like that across the counter. I would say some member of23 the County Council must have gotten it and given it to me, the only way it24 could happen.25 Q. 299 Yes. And with what in mind, with what intention do you think --26 A. I would say it was to be helpful, with a view to helping me rather than27 hindering me. I don't know what the opinion was now mind you, but one way or28 the other it would be helpful to be told at that time.29 Q. 300 Well of course you did know what the opinion was because you quote extensively30 of the opinion.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

671 A. Yes, okay. I didn't read it all there.2 Q. 301 The conclusions which you refer to in the letter can be seen at page 1030.3 This is the conclusions of counsel, where they are summarised as follows:4 "The Applicant for planning permission represented that it could carry out road5 improvements on the Newcastle Road, when it does not now and will not have in6 the future, all the land necessary for such road improvements. It therefore7 follows that the developer is not in a position to carry out the road8 improvements which it proposed to carry out.910 (B) From a perusal of what seems to me to be the relevant and legitimate11 factors now before the councillors, I consider there is a very serious risk12 that if they should decide to grant planning permission for this development13 that such decision would be open to a successful challenge in the High Court as14 being unreasonable and ultra vires for the reasons set out in the solicitor's15 letters, see paragraph 15 of this opinion."1617 So, certainly without going through the opinion line by line, it runs to some18 15 pages and touches upon matters of fact as well as matters of law, it is19 clear that the council was being advised in advance of its meeting that it20 would be imprudent to adopt the proposal which was envisaged by those21 councillors who were bringing a motion before the council which would have22 permitted the material contravention of the draft Development Plan in your23 favour; isn't that right?24 A. That is right.25 Q. 302 You, of course, in the light of this opinion, had sought your own solicitor's26 advices and your solicitor wrote to the council setting out your position by27 letter of the 6th of April of 1990 which we see at page 1063, and it addresses28 the issue as follows. And it says "The facts before the County Council are as29 follows.30Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

681 1. Our client's application for the development related solely and only to2 lands within its control. This is self evident from any sort of a perusal of3 the documentation submitted and is particularly so to anyone carrying out a4 proper perusal of the fundamental maps submitted with the application and5 designated as the location map.67 2. The County Council was fully aware of the fact that the lands of Coolamber8 House, which in the council's report are described as being "excluded from the9 application" were in fact excluded from the application in this regard we would10 refer you to the report prepared by the officers of the County Council for the11 County Council meeting of the 12th of March 1990 and particularly to paragraph12 3 on page 2 thereof. And we would further refer to the handwritten report of13 G Lloyd dated the 29th of March and would specifically repeat paragraph 114 thereof "the map submitted with the application which identifies the site of15 the development by a red line would appear to exclude any part of the lands16 attached to Coolamber House from the site of the development."1718 3. The submission made on behalf of Mr. Jackson by his architects makes no19 reference whatsoever to the application affecting lands which were not in our20 client's control. In these circumstances we would state unreservedly that the21 decision of Mr. Justice Henchy in the case of Frascati Estates and Walker,22 Irish reports, is absolutely of no relevance.2324 In addition the entire central thrust of Mr. Gallagher's opinion is related to25 paragraph 5 thereof and the conclusions drawn there from which are contained in26 paragraph 19. It is quite clear that there was no representation, innocent or27 otherwise, in this case and it is quite clear from the report submitted to the28 Council meeting of the 12th of March that the County Council were fully aware29 of the situation with regard to the Coolamber lands."30Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

691 Now, could I suggest to you that what this is indicating, is that it was always2 intended in the application that it would not specifically deal with the lands3 on which fronted Coolamber House itself, but that it only intended to deal with4 road reservations insofar as they were to the north and south of Coolamber and5 within your ownership; isn't that right?6 A. That is correct.7 Q. 303 But of course in the event that that had taken place, firstly, it means that8 the road would be extended on either side of Coolamber House but would not be9 extended in front of Coolamber --10 A. Correct.11 Q. 304 -- isn't that right? Which would create an anomalous situation of a road which12 had been widened from country road status to a road with foot paths which would13 suddenly terminate at the boundary of Coolamber House and would remain a14 country road for the face of Coolamber House and then would revert to being a15 wide road again; isn't that right?16 A. Correct.17 Q. 305 That of course, I think, you can see from a practical point of view would18 seriously challenge or concern anybody in the road section as to what the end19 result of the project would be because it would be piecemeal; isn't that20 correct?21 A. Well that is what did happen.22 Q. 306 Yes. I appreciate that it happened, but it could only happen if it was23 considered and if the Council passed the resolution notwithstanding those24 reservations, isn't that right?25 A. Yes, and a further development was built since.26 Q. 307 Yes. We'll see that the matter came before the council on the 9th of April27 1990, page 1068. There is a note of the minutes of the meeting. And this28 notes the report of the manager, and the manager's report, you'll see in the29 first page here, contains a reference to the compliments slip, the letter of30 Finbar Cahill & Co, that's the one I already read to you. A letter from yourPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

701 architect. And these letters were expressed as being a critique of the2 council's opinion and advice which was circulated. It goes on to say "The law3 agent has advised that in the particular circumstances of this case that this4 correspondence should be circulated to the members, even though it has been5 received outside the statutory notice period of 21 days. And further, the law6 agent advices that the council should act in accordance with counsel's advice7 which he considers to be correct". So at the commencement of this meeting, the8 position was that the members of the council were being advised by the law9 agent to the council that he considered that counsel's opinion as to the10 invalidity of the application, number one, was valid. And secondly, that to11 allow for the development to take place would expose the council to the risk of12 High Court challenge; isn't that right?13 A. That's right.14 Q. 308 In the body of those minutes there are, I have to say, repeat references,15 verbatim, to each of the documents which had been considered on the agenda of16 the previous meetings dating all the way back to early March. And therefore I17 don't intend to refer to them individually. But just to bring you to18 conclusion of that particular minute which indicates that, at page 1087, that19 at the meeting "It was proposed by Mr -- sorry, Councillor Lyons, seconded by20 Councillor Hickey that the decision to grant permission under your planning21 application be made. And it notes that the time allowed for the meeting22 lapsed and the meeting concluded at 9:30."2324 So that whilst the matter was raised, discussed at this meeting on the 9th of25 April, because of time constraints it was not possible to bring it to a26 conclusion. And it was further adjourned; isn't that so? That's what it27 says, certainly in the minutes.28 A. Yes.29 Q. 309 I think you were being kept acquainted with what was taking place in the30 council in relation to your application. What in effect was your application?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

711 A. I might have attended some of the meetings.2 Q. 310 Do you have a recollection of being there and seeing this happen?3 A. I don't really but I know I attended some of them.4 Q. 311 Now, obviously one of the concerns that was being specifically addressed here5 was the legitimacy of the councillors as a whole deciding to adopt a plan --6 well deciding to adopt a particular proposal which would have the effect of7 going against the Development Plan which is then in situ; isn't that right?8 A. Yes.9 Q. 312 And the legality of their so doing. We see there was a motion proposed on the10 14th of May 1990 by members Tipping, Gilmore and Rabbitte, which sought to11 address the issues that were being thrown up by your application.1213 At page 1100 you'll see that the proposed resolution in the following terms14 "That we, the members of Dublin County Council, pursuant to Section 4 of the15 City and County Management (Amendment) Act 1955, hereby require and direct the16 Dublin City and County Manager or any Assistant Manager, having delegated17 powers, to bring forward a report to be discussed at this meeting setting out18 his detailed recommendations on the procedures to be adopted that would enable19 this council to act in a judicial manner when deciding on planning application20 No. 90A/61, having regard to senior counsel's advice to this council given in21 the aftermath of the Supreme Court case of Sharp Limited and Grove Developments22 versus Dublin city and County Manager and by order Dublin County Council, the23 judgement of which issued on the 15th of December 1988."2425 And there is then a report, which would be the manager's report that "In26 considering the application for planning permission the council should have27 regard to the following:2829 1. The planning application available at the meeting and the slides30 illustrating it as outlined and explained.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

7212 2. The report of the manager.34 3. The representations and objections made by the public in response to the5 public advertisement.67 4. The contributions made by members to the debate.89 5. The answers given by the manager and planning staff to questions raised by10 the manager.1112 In making their decisions the members should have regard only to the proper13 planning and development of the area."1415 You'll see on the following page at 1101, that's a supplementary report, "It's16 noted that on the 6th of April further documentation was handed in," that is17 what I've already referred to. That was your compliment's slip, your18 solicitor's letter, which set out your side of the case or argument against19 what was advance in the counsel's opinion, your architect's letter also.2021 Now, as a result of this there was discussion apparently at that meeting of the22 application that would concern your land, but no vote was taken in relation to23 the matter. And it was adjourned yet further to the 21st of May of 199 --24 sorry -- 1990.2526 Again, on that occasion it came before the council and it was not determined27 but in the course of the reports which were put before the council there was28 further information in relation to another planning application. We see that29 at page 1109, a letter from the Deputy Planning Officer to the Principal30 Officer of Planning in relation to your planning application and says "ThatPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

731 since consideration of the above proposed material contravention of the County2 Development Plan by the council since it began, an application has been3 received for a major housing development on an adjacent site. This4 application which was lodged on the 11th of April is for a site of 33 acres to5 the east of Hayden's Lane. The application, which was lodged by Shannon Homes6 Limited, who have a contract to purchase of the lands. The proposed7 development consists of 301 houses.89 It is considered that the application will reinforces the recommendation to the10 council that it would be premature to grant major planning permission in this11 area pending the report to council on the strategic plan for Lucan/Clondalkin12 area which will be made in the context of the Development Plan review."1314 I think you know those lands, Mr. Tiernan, isn't that right? They are capable15 of being seen on the contract maps that were attached to your contract. And16 they represent the acreage which is further east of your development; isn't17 that right?18 A. The subject matter of a material contravention after and built since.19 Q. 313 Certainly from the point of view of the council, at this point in time, they20 were drawing attention to the manager, who in turn would draw to the attention21 of the councillors themselves, that their concern that granting development to22 you for 470 houses here was likely to lead to applications similarly by persons23 in the area to rezone those lands also. Whereas they were not presently24 within the residential zoning area; isn't that right?25 A. Yes.26 Q. 314 And we'll see that this again came before the council on -- at a meeting on the27 11th of June 1990, at page 1126.2829 Where it is reported that "The attached reports were submitted to the May30 meeting. The Council were under discussion at the close of the meeting.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

7412 An application by Shannon Homes for 301 houses on a site of 33 acres at3 Hayden's Lane, to the east of Tiernan Homes, was refused permission on the 6th4 of June 1990. A copy of the notification of decision to refuse is attached to5 this report."67 And again while the matter was discussed at that meeting, it was not voted upon8 at that meeting but was sent back for further consideration until the 16th --9 sorry -- the 15th of June 1990. When we see at page 1129 an extract of the10 minutes of proceedings of the adjourned County Council meeting are recorded.11 It's held on the 15th of June 1990.1213 It commences by reciting the further information which was available, that is14 the Shannon Home rejection. And it again sets out all of the documentation15 which was previously before the council, including counsel's advices, the law16 agent's reports, the reports of the manager as to the planning officer's17 reports, the roads authority reports, sanitary services reports and all of that18 kind of thing.1920 And on this occasion the matter was ultimately voted upon on that date. It21 being the culmination of very many meetings at which it had been discussed but22 not voted upon.23 A. Yeah, Mr. O'Neill, which application was voted on that day?24 Q. 315 This was the application for the 400 and --25 A. For Tiernan's?26 Q. 316 Yes. It's application 90 A/61, which is the one that we've been considering27 in each one of the applications in this point. The only reference to any28 other planning application is that of the Shannon Homes application which was29 refused but was quoted in the context of the report dealing with the material30 contravention of your lands, because it was considered to be appropriate toPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

751 illustrate a concern which was voiced by the Planning Department that if the2 councillors approved your scheme it was likely to have a flood gate effect; do3 you understand?4 A. Yes.5 Q. 317 Now, we see at the culmination of this report, at page 1151, the Assistant City6 and County Manager, Mr. Prendergast, is referred to as follows, "he drew the7 members attention to the legal advice to the Council as set out in the report8 before the meeting. The manager also warned the meeting that in the event of9 the council making a decision that planning permission would be granted in10 respect of the application and should court proceedings arise and in the event11 of a deficiency or loss resulting in the funds of the Council arising from the12 decision, that the members voting in favour of the proposal could possibly be13 surcharged arising from any such loss or deficiency in the funds of the14 Council. Councillor Lyons replied by proposing the motion be passed.1516 And during a long debate at which the file had been available for inspection by17 the members and which we have heard and considered various items" and I think18 these confirm the documents which I have referred earlier, "that is the report19 of the manager, slides illustrated and explained by the Deputy Planning20 Officer, the contributions made by members to the debated, the answers to21 questions raised by members. It was then voted upon. And by a vote of 2722 votes in favour, 20 votes against and one vote abstaining, the motion was23 carried with the effect that the lands were authorised to be the subject of a24 material contravention to the plan." Isn't that right?25 A. That is right.26 Q. 318 And once that hurdle was out of the way, it was then a matter simply of27 satisfying the planning officials that on planning grounds, as opposed to28 zoning grounds, it was appropriate that the application would be considered;29 isn't that so?30 A. On drainage grounds.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

761 Q. 319 Well of course it would cover all aspects of it. It would mean the planning2 application would have to satisfy the requirements of the Planning Department.3 Whilst you set about through your architect achieving that end, it is the case4 of course that there are remedies available to persons who are aggrieved,5 either by council decisions or by successful planning grants; isn't that so?6 A. That is right.7 Q. 320 They include, firstly, the ability of a person to appeal the matter to An Bord8 Pleanala, where there is a re hearing, if deemed appropriate. Or a re9 evaluation of the scheme by An Bord Pleanala; isn't that's correct?10 A. Correct.11 Q. 321 And the alternative or perhaps complimentary remedy is available was in effect12 an irrational or unlawful decision, that person can go to the High Court and13 challenge that decision by way of judicial review; isn't that right?14 A. That is correct.15 Q. 322 You learned of this in detail, I think, because both of those options were16 exercised by Mr. Jackson in relation to the grant of planning permission; isn't17 that right?18 A. That is right.19 Q. 323 In the first instance, I think it is correct to say that planning permission20 was granted by the local authority to you, and against that decision there was21 an appeal brought to An Bord Pleanala on the 2nd of July 1990, by Mr. Jackson,22 which we see at page 1167.2324 Firstly, there was a letter, this letter was a letter to the Planning25 Department of Dublin County Council where it was stated as follows: "It26 appears from various media reports that a Section 4 resolution in relation to27 the above development has been passed by Dublin County Council. We should be28 obliged if you would confirm whether this is the case. If the matter has been29 passed then we are of the opinion and have been advised by senior counsel that30 such a decision is open to challenge by way of judicial review as so grosslyPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

771 unreasonable and perverse to be ultra vires the County Council and it is2 invalid by reason of the inclusion of a portion of our client's property in3 that, in the land for which the permission was sought. In the event that the4 County Manager decides to grant permission we hereby give you notice that we5 will be applying by way of judicial review to the decision quashed.67 Please note that entirely without prejudice to our principal proposed close to8 proceedings by way of judicial review we will also be preserving our client's9 position by appealing the decision to An Bord Pleanala."1011 You sought a deferral of the County Council of the decision from the County12 Council by letter of the 6th of July 1990 at page 1172. Where you write to13 Mr. Smyth saying "that with reference to the above planning application I14 request a deferral of a decision up to and including Thursday the 12th of July15 1990."1617 Have you any recollection at this point in time as to why it was that you18 wanted the decision of the Council deferred to that point?19 A. I don't recall, Chairman. Perhaps Mr. O'Connor can help us there. The first20 thing that would come to my mind when I see that type of thing is this. That21 there must have been items regarding drainage and roads and other matters.22 Q. 324 Right.23 A. That we could not satisfy the relevant departments on.24 Q. 325 Right.25 A. That we needed more time.26 Q. 326 Sure. And the time that you envisaged that would be necessary to satisfy that27 requirement was specified as being the 12th of July; is that right?28 A. Well, I don't know if there was any other reason for that date.29 Q. 327 No. I believe that to be the reason. We'll see that the Roads Department30 makes a supplemental report on the 11th and that might be the reason why youPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

781 sought that adjournment.2 A. Okay.3 Q. 328 But it indicates, I think, that you were aware that there would be a further4 roads report forthcoming within that period of time; is that right?5 A. I don't know.6 Q. 329 Right. We'll see at page 1176, that Dublin County Council Roads Department7 clarifies an issue in relation to item 7 of the Roads Report of the 26th of8 January 1990 by saying "Arising from discussions with the Planning Department9 we wish to clarify our views on item 7 of the previous report." And then it10 deals with the junction and what have you. It indicates that "As a temporary11 measure we would not be opposed to a temporary access for a limited development12 located further southward except opposite road 19 in a position where adequate13 visibility in both directions can be achieved."1415 Is it likely that you were awaiting that report before you wanted the council16 to pronounce upon the merits of your application; is that right?17 A. That could be.18 Q. 330 And --19 A. It could be the situation, yes, I'm not sure.20 Q. 331 It would appear to be because at reference 1177, we see that you wrote to your21 planning advisor "Dear Ciaran, there should be further roads report from J22 Henry on" I'm not quite sure "to F Madden dated 11th of July permitting 5023 houses south of Coolamber."2425 In any event, we'll see that on the 12th of July 1990 at page 1178. The26 County Council granted the planning application in relation to register 90A/61,27 which was the matter which had been current before the council from January of28 that year and had been the subject matter of all of the council meetings that29 we'd referred to, to date; isn't that right?30 A. Yes.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

791 Q. 332 That was granted subject to 52 conditions. And, I think, that immediately2 after that was granted there was a period for appeal, period of a month.3 Within that period you were informed of the fact that there was an appeal to An4 Bord Pleanala by Keane Murphy and Duff, the architects and planning consultants5 who were engaged by Mr. Jackson; isn't that right?6 A. I'm sure I was, yes.7 Q. 333 The effect of that of course was to freeze any possibility of developing the8 lands until such time as that matter was resolved; isn't that right?9 A. Absolutely.10 Q. 334 And in addition to that appeal, and we'll see the grounds of the appeal at page11 1203. Which was again, in essence, a repetition of the grounds which had been12 advanced to the County Council in the first instance to deal with your, to deal13 with the proposal which was to go before the members of the council on foot of14 the material contravention.1516 We see that there was also a judicial review which was brought, and the grounds17 of the judicial review we will see at page 1208. I should say that the18 Applicant in the judicial review proceedings was again Mr. Jackson, and the19 County Council was the respondent to those proceedings, as it was the body that20 had made the decision which was under review.21 A. Yes.22 Q. 335 In the course of that you will see that at page 1208, "The grounds upon which23 the relief was sought was that the respondent in purporting to pass the24 resolution on the 15th of June 1990, was acting without jurisdiction or in25 excess of jurisdiction and/or the said resolution was invalid in that having26 regard inter alia to the County Development Plan of 1983, the advice tendered27 to and responded by its officers and in particular by the roads engineer and28 sanitary services engineer and the merits of the application, the resolution29 was so perverse and unreasonable that no local authority acting reasonably30 could properly have passed such resolution.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

8012 Secondly, that the resolution was invalid and ultra vires and that the3 application extended to and included lands which were the property of the4 Applicant and in particular Coolamber House and in which the Applicant, Tiernan5 Homes never had at any material time any interest or state and thirdly, that6 they failed to comply with the provisions of the Local Government acts --7 Planning and Development Act, in that they failed to disclose that the8 applicants did not have any interest in the lands comprised in Coolamber and9 such further or other matters as that the court might permit them to raise."1011 That was the application which was made by Mr. Jackson, and obviously you were12 being made aware of this because you were joined as a third party to or notice13 party to those proceedings; isn't that right?14 A. Yes.15 Q. 336 And we see that in the order of the court made at page 1233, the third aspect16 of the High Court's order was that "Tiernan Home Builders be joined as a notice17 party hereto."1819 And as a notice party to these proceedings, I think you had the benefit of20 receiving all of the documentation which passed between the principal parties,21 that is the Applicant, Mr. Jackson, and the respondent, Dublin County Council;22 isn't that right?23 A. Yes.24 Q. 337 Mr. Jackson's application was grounded on his own --25 A. Chairman, when I say yes. I'm accepting what you're saying that we got26 benefit of getting all of the documentation.27 Q. 338 Well as a notice party to the proceedings.28 A. Yes.29 Q. 339 You were a person who was entitled to attend, to participate in the30 proceedings, and you engaged your solicitors, Mr. Cahill, to do that for you;Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

811 isn't that right?2 A. I know we were represented in court.3 Q. 340 Yes. And part of the matter which was before the court, it was brought before4 the court by way of an affidavit rather than by the oral evidence of5 Mr. Jackson; isn't that right? You may be aware, Mr. Tiernan, of the contents6 of an affidavit which was sworn by Mr. Jackson in support of his application.7 Perhaps if you see it, it might jog your memory. It's at page 1212.89 In the -- this is in the body of the affidavit sworn by Mr. Jackson. He says10 at paragraph 5 "I am not aware of my own knowledge of the ownership of the11 lands on which it is proposed to construct the buildings comprised in the12 development but from the information received by me and from the newspaper13 reports, I understand that the developers, Tiernan Home Builders Limited, have14 entered into some form of option agreement or conditional purchase agreement15 with the actual owner of the land, whom I believe to be one James Kennedy, a16 developer or a company owned or controlled by him. I'm accordingly not aware17 what specific interest in the lands the said Tiernan Home Builders rely."1819 Could I suggest to you that from this document it was aware or you were made20 aware, if you had any doubts that point in time, that it was considered by one21 of the local residents who was immediately affected by your proposed22 development that Mr. Jim Kennedy was in fact the owner of the lands and that23 you had an arrangement with him in relation to lodging the planning application24 in connection with it; isn't that so?25 A. Well there's two things. That's what Mr. Jackson is saying.26 Q. 341 I'm of course not suggesting that you necessarily believed this to be the27 case --28 A. No, I don't.29 Q. 342 -- I'm only asking you whether or not you became aware of this fact in 1990,30 that it was being maintained in High Court proceedings, of which you were aPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

821 notice party, that Mr. Kennedy was one of the owners or the owner?2 A. Well according to this, yes, I was.3 Q. 343 Well did that in any way conflict with any of the information that you had at4 that particular time. You'd been dealing now, by the time this affidavit was5 sworn, it was in July of 1990. I will tell you the exact date, the 27th of6 July of 1990. You had been the contracting party to purchase the lands for7 eight months to this point in time. You'd had the extensive dealings that8 we'd already referred to with Mr. Caldwell. You had formed a view that9 Mr. Caldwell had some form of an ownership interest over and above acting as a10 solicitor; isn't that a synopsis of where we are at this point in time?11 A. That is right.12 Q. 344 Now, at this affidavit a reference is made to Jim Kennedy. And you've told us13 in your earlier evidence that it was rumoured that Mr. Kennedy controlled14 certain aspects of the sanitation, drainage and water in that area; isn't that15 right?16 A. Correct.17 Q. 345 Did this information, contained in this affidavit, put you on inquiry as to18 whether or not it was the case that Mr. Kennedy was also a party involved here?19 A. It did, yes.20 Q. 346 And did you discuss that with Mr. Caldwell?21 A. I would say I did.22 Q. 347 Right. We know that you indicate that you were introduced to Mr. Kennedy as a23 result of a conversation you had with Mr. Beatty in 1991. And you probably24 met him in 1992 on several occasions.25 A. Yes.26 Q. 348 That's the information that you've given us in relation to Mr. Kennedy.27 A. Yes.28 Q. 349 Is there any reason why, in 1990, that you didn't satisfy yourself at that time29 as to who in fact the owners of the lands were, given that you had the30 suspicion that Mr. Caldwell was an owner, and you had a discussion withPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

831 Mr. Caldwell about the possible ownership of Mr. Kennedy?2 A. No, there's no reason why I didn't pursue it. It really wasn't an undue3 concern of mine as to who the principals behind Southfield were, provided I had4 an enforceable contract and that if I succeeded in getting planning permission5 that I was in a position to go and complete the transaction.6 Q. 350 Yes. Had you established from any of your dealings with the Sanitary Services7 Department, in relation to your application, that Mr. Kennedy had been visiting8 the council before your involvement and that he had been a person who was9 proposing plans to develop this land in his dealings with them?10 A. Mr. Kennedy's name was mentioned many times.11 Q. 351 Yes.12 A. As being a person involved in lands in the Lucan general area, number one.13 Number 2, that he was involved in the -- in drainage pipes or had a control14 over certain pipes. And there was nothing new, Chairman, Your Honour, in15 hearing that Mr. Kennedy was involved.16 Q. 352 Right. I was asking you specifically, Mr. Tiernan, in relation to your17 dealings with the Sanitary Services Department which, as I understand from the18 documents available here, were dealings which commenced in late 1989 and may19 have extended into 1990; isn't that so?20 A. That is right.21 Q. 353 And in those dealings, with those officials, did you learn from those meetings22 that your proposal to develop 55 acres of Coolamber, which involved your 47023 house application, had been preceded by Mr. Kennedy's discussions with the24 officials under which he was proposing to build 325 houses in the same area and25 which would require the same drainage facility?26 A. I positively do not recall any employee of Dublin County Council at the27 time/official, volunteering that information to me.28 Q. 354 Right. But you've already agreed with me that you had available to you29 Mr. Galbraith's map which showed --30 A. Yes.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

841 Q. 355 -- the routing of the drainage of the lands through the publicly owned lands to2 the Grifeen Park between the football pitches and ultimately finding itself at3 the Esker pumping station; isn't that right? Isn't that right?4 A. Yes, that's right.5 Q. 356 And you knew that those maps had come from Mr. Kennedy through Mr. Synnott, who6 gave them to you?7 A. Mr. Synnott gave them to me. Yes, I did.8 Q. 357 So could I suggest to you that there was no doubt in your mind at any time from9 the commencement of your acquisition of these lands but that Mr. Jim Kennedy10 was one of the owners of these lands, although he might not be publicly11 declaring that to be the case?12 A. There was a big suspicion in my mind that he was involved.13 Q. 358 Now, when you put this to Mr. Caldwell, you've told us that because of the14 reference in the affidavit to Mr. Jim Kennedy being an owner, you discussed15 that matter with Mr. Caldwell. Did Mr. Caldwell acknowledge this to be the16 case or did he dispute it?17 A. Mr. Caldwell was always evasive.18 Q. 359 Right.19 A. That is to say that he never confirmed and I could say that he never denied20 out-right.21 Q. 360 Well can the Tribunal take it then that from a date, certainly as the latest22 being July of 1990, you proceeded forward in your dealings with the Coolamber23 lands in the belief, whether it be valid or otherwise, that both Mr. Kennedy24 and Mr. Caldwell were the probable, were probable owners of the land at that25 time?26 A. No. No, Chairman, Your Honour. I cannot agree to that.27 Q. 361 Well what did you think?28 A. I believe that Mr. Caldwell positively had a proprietorial interest.29 Q. 362 Well that's what I mean by ownership.30 A. Now, I was not of that definite view that Mr. Kennedy had a proprietorialPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

851 interest. I accept that I know what I -- what has been put on the screen2 here. At that time I heard rumour and talk, but Mr. Caldwell never confirmed3 it to me.4 Q. 363 I accept of course that he may not have confirmed it to you and what I was5 asking you was whether it was your belief --6 A. Well let's say, Chairman, it was an opinion.78 JUDGE FAHERTY: Mr. Caldwell, Mr. Tiernan, had never confirmed your suspicion9 that he was the owner of the lands either; isn't that right?10 A. I agree.1112 JUDGE FAHERTY: So, you had a suspicion about Mr. Caldwell and Mr. Kennedy.13 A. Yes, I had.1415 JUDGE FAHERTY: Was there any distinction in your feelings or suspicions at16 that time?17 A. There was.1819 JUDGE FAHERTY: And what was that distinction?20 A. I believed that Mr. Caldwell had a proprietorial interest in the lands.21 Nothing would change that view, Your Honour. I had a suspicion that22 Mr. Kennedy was involved. But not having spoken with Mr. Kennedy and heard23 any utterances by him or body language or seen anything. I wasn't in the24 position to make the same balanced judgement. Now, I acknowledge that I heard25 all the rumours.2627 MR. O'NEILL: Put it this way, Mr. Tiernan. There's no way in which you would28 have been surprised to learn, if it is the case that these two parties had a29 proprietorial interest in the land, given the dealings which you had had with30 Mr. Caldwell, subsequently with Mr. Kennedy, and the information which youPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

861 gleaned from other sources; isn't that right?2 A. Correct.3 Q. 364 As you say, you didn't consider this to be a matter of concern to you because4 you are in essence concerned with protecting your contractual position5 regarding the acquisition of the lands from whoever the owner was; isn't that6 so?7 A. That was my priority.8 Q. 365 Right. Did you ever discuss the suspicion that you had of the ownership in9 this land being vested in Mr. Caldwell or Mr. Kennedy with Mr. Liam Lawlor?10 A. I possibly did.11 Q. 366 Right.12 A. It would be --13 Q. 367 And were you seeking his confirmation or seeking him to provide information to14 you as to whether you were correct in your surmise or otherwise?15 A. Mr. O'Neill, I wasn't primarily concerned with a witch hunt.16 Q. 368 Well --17 A. Trying to establish the individuals behind Southfield at that time. I was18 totally preoccupied with trying to preserve the interest I had.19 Q. 369 I accept that --20 A. And advance it.21 Q. 370 I accept that was your primary interest, Mr. Tiernan. But you tell us that22 you did discuss it with Mr. Lawlor, and I'm just wondering if you can indicate23 what discussion you had with Mr. Lawlor about your belief that Mr. Kennedy and24 Mr. Caldwell were the owners of the land?25 A. Well I can tell you without doubt that Mr. Lawlor did not confirm that26 Mr. Kennedy was involved in it, at that time, to me.27 Q. 371 Right. But you have a recollection of raising the issue with him?28 A. I have in a general way now.29 Q. 372 Yes.30 A. But I had so many discussions with Mr. Lawlor about that and other things thatPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

871 I don't recall most of them.2 Q. 373 Right.3 A. But I am satisfied and can say in the full belief that Deputy Lawlor, at the4 time, did not confirm to me that Mr. Kennedy was one of the principals behind5 it.6 Q. 374 I see. As we know, the two strands of challenge to the resolution of the7 Council proceeded; that is the High Court application proceeded and the An Bord8 Pleanala decision or appeal rather also proceeded, and you were aware of the9 various stages of the appeal process; isn't that right?10 A. Oh, indeed I was.11 Q. 375 Who was keeping you acquainted of what the thinking or the stage of progress of12 the appeal was before An Bord Pleanala?13 A. Correspondence from An Bord Pleanala.14 Q. 376 Well obviously the Board would write to you to alert you as to what the date of15 the proposed hearing of the appeal was so that you could be properly16 represented and have your case articulated; isn't that right?17 A. That would be normal.18 Q. 377 Was that the only source through which you came to learn of the fixing of the19 appeal date and the issues that were before the Tribunal?20 A. I believe I had no contact in An Bord Pleanala, apart from making phone calls21 to the secretariat to try to establish --22 Q. 378 Right.23 A. -- dates.24 Q. 379 And do you think that the secretariat would disclose information to you that it25 was not going to disclose to others?26 A. No, not to me anyway.27 Q. 380 We'll see on the 6th of November 1990, page 1350, you wrote to Mr. John28 Caldwell to advise him of what the status of the Finnstown planning appeal was,29 you state "Dear John, I refer to the above matter and confirm that I have been30 advised today verbally that the board will proceed -- will process the appealPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

881 currently before them. I will know on Thursday next the 8th inst, the date of2 the appeal, which should be the first week in December.34 Mr. Jackson's legal team sought an undertaking from the board that they would5 not process the appeal pending the outcome of the judicial review, a request I6 am delighted the board refused. I will keep you advised." Was that7 information that was made publicly available to you through a phone call to An8 Bord Pleanala or have you a recollection of somebody within the board9 indicating that that, firstly, was the intention of the board and secondly,10 they had reached the conclusion which was referred to here, that they would not11 defer matters pending the outcome of the judicial review?12 A. I must have been -- that must have been communicated to me either verbally or13 in writing. I would say verbally because I had no contact, other than the14 same as a member of the general public with the board.15 Q. 381 I suggest to you that the official confirmation of the material content of that16 letter, with the exception of the decision of the board not to entertain the17 application of the appellant to defer matters, is contained at page 1356.18 Which shows that on a date, which might be the 19th of November 1990, some19 thirteen days after your communication with Mr. Caldwell, you were written to20 in relation to the appeal.2122 "Dear Sir. An Bord Pleanala has decided to hold an oral hearing of the above23 mentioned appeal, arrangements have been made as follows for the opening of the24 hearing on the 4th of December at 10:30."2526 And you went on to fax this document to Mr. Caldwell; isn't that right? Isn't27 that what it appears, it appears to say from Joe Tiernan. I'm not sure if28 that's your handwriting that --29 A. That would be my writing on top. It's not my writing on the bottom.30 Q. 382 No, that's the recipient within Binchy and Partners, of presumably to whomPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

891 you'd faxed this document, referred it on for Mr. Caldwell's attention.2 Again, at this point in time Mr. Caldwell isn't your solicitor. He's not a3 person who is, as far as you are concerned, dealing with the planning4 application or the appeal procedure. Yet you're acquainting him of the5 developments; isn't that so?6 A. Yes, totally so.7 Q. 383 Now, the appeal took place, the oral appeal, on the 4th, as intended. And I8 think you were represented there, amongst others, by counsel, by solicitor, by9 a consultant planner.10 A. I was.11 Q. 384 You were there personally; is that right?12 A. I was.13 Q. 385 And you had a consulting engineer also; isn't that right?14 A. I had a full team.15 Q. 386 You'd a full team. And there was a very full hearing of the issues. And at16 the conclusion of the hearing, what was your view as to the likely success of17 the appeal from the appellant's point of view? Did you believe that they would18 succeed in their appeal or did you believe that the council's decision would be19 maintained by the board?20 A. I was optimistic.21 Q. 387 Yes.22 A. Of a favourable decision.23 Q. 388 Right.24 A. But also conscious that those things can go either way.25 Q. 389 Right.26 A. I believe that there was compelling reasons why it should be approved, as I27 always said from the beginning, all the services were available, it was quite28 close to residential, it had everything going for it.29 Q. 390 Right. And can I take it that your confidence in the likely success of the30 presentation put before the board by you and your representatives is reflectedPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

901 in the letters which we see at page 1383 of the brief, that is a letter to2 Mr. Brian Meehan, Town Planning Consultant from you "Dear Brian, I wish to3 express my sincere thanks to you for the excellent presentation at the oral4 hearing yesterday, particularly in the light of the short notice given to you.56 I think the case was well articulated and established, without doubt, the7 merits of the development."89 You also wrote to Ciaran O'Malley, a very experienced planner, on the same10 date. We see that at page -- I beg your pardon. You may take it that you11 wrote a similar letter.12 A. I wrote to all the team I think.13 Q. 391 Right.14 A. Because I was very impressed with their presentation.15 Q. 392 Right.16 A. It was only my second time to attend an oral hearing.17 Q. 393 And that being so, could I suggest that you were confident at the conclusion of18 the presentation that your efforts would be successful and you communicated19 that --20 A. Chairman, now, I wasn't confident. I was optimistic.21 Q. 394 Yes.22 A. If there's -- I think there's a significant difference.23 Q. 395 I'm not saying that you had any unreal expectation. I'm suggesting to you24 that you'd heard a presentation, the result of which was that you wrote25 individually to each one of the experts who had offered their advices. And in26 the body of the letters that you wrote, you indicated that you were satisfied27 that the merits of your case had been presented in such a way that no28 reasonable person could refuse?29 A. I was, yes.30 Q. 396 Fine. Now, the planning inspector who carried out this particular oralPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

911 hearing was to go on and to prepare for the members of the board a decision or2 a recommendation to them. And I think you know from your knowledge of the3 workings of An Bord Pleanala that the planning inspector's report doesn't4 necessarily find itself accepted as being the final say by the board. It's5 their unique function to evaluate not only the planning inspector's report but6 all of the documentation which was before him when he came to the preparation7 of that report, isn't that right?8 A. I do, I know that.9 Q. 397 You'll see the planning inspector's report is one which made the following10 recommendation. You'll see at page 1399, indicates that on the 20th of March11 1991. "I consider that permission should be refused for the following reasons.1213 1. The site of the proposed development is located in an area for the which14 the County Development Plan zoning objective is to protect and provide for the15 development of agriculture. The proposed development which represents16 piecemeal, unplanned encroachment within the rural area of lands and17 agricultural use, would be seriously at variance with the above zoning18 objective and established policy provisions of the Development Plan with regard19 to" -- I'm afraid I can't make out the word after that. "The subparagraphs20 read firstly, the limitation control of random rural housing development.2122 2. The overall development strategy for the Lucan/Clondalkin area. An Bord23 Pleanala considers these provisions of the Development Plan to be reasonable.24 The proposed development would therefore be contrary to the proper planning and25 development of the area.2627 3. The proposed development would endanger public safety by reason of traffic28 hazard by reason, rather, as a result of the generation of significant volume29 of traffic, etc. The development would therefore be contrary to the proper30 planning and development of the area."Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

9212 So that information, of course, is not publicly circulated information. Would3 not have come to you in the normal course of events; isn't that right?4 A. I think not. I'm not sure.5 Q. 398 Well, you may take it that as much as is published by An Bord Pleanala is their6 decision on the appeal. And that is published by way of a An Bord Pleanala7 decision. And we see that decision at page 1426.89 Again, you will see at the top of it, it deals with planning register reference10 90A/61. It is the appeal of Mr. Jackson and others. Against the decision11 which had granted you the permission for the 472 houses. The decision12 pursuant to the Local Government Planning and Development Act was to refuse13 permission of the, for the development in the manner set out in the schedule14 thereto.15 A. I see that.16 Q. 399 And you see that that decision is published on the 9th of July of 1991; isn't17 that right? The date, I should say, is on the following page, 1427, dated the18 9th. Now, in advance of that decision having been taken, I think, you had19 changed your mind, could I suggest, as to your expectation as to whether your20 appeal or rather whether the appeal of Mr. Jackson would or would not be21 successful; isn't that so?22 A. I think it may be so, yeah.23 Q. 400 We see from the letter of the 15th of July 1991 at page 1430. That when you24 were writing to Mr. John Caldwell, you remember considering this letter25 earlier. "Dear John. I refer to our meeting of the 20th of June and wish to26 remind you I stated I was not hopeful of a favourable decision of An Bord27 Pleanala. I now enclose a copy of the refusal." What was it, Mr. Tiernan,28 that caused you to change your mind, I suggest, from the position you had29 adopted in the aftermath of your appeal, of the appeal rather, in December of30 1990, where you were congratulating those who had presented the appeal, to thePremier Captioning & Realtime Limitedwww.pcr.ie Day 564

931 pessimistic view which you expressed at the meeting of the 20th of June and2 subsequently on the 15th of July to Mr. Caldwell?3 A. Mr. O'Neill, I have to repeat that I was very impressed with my team, the way4 they articulated the points at the oral hearing. It was faultless. There5 was logic, as far as I was concerned to every item they articulated. That's6 what made me so optimistic. My team could have not fielded a better7 presentation. Six months elapsed, approximately, from the time of the oral8 hearing to the decision. I had no contact in An Bord Pleanala to tell me that9 the inner workings would be negative when they would get to it and that the10 board would be negative. I had no access, and I knew no person with access11 that could give me information other than what a member of the general public12 like myself could get. I believed that to be true.13 Q. 401 But your view appears to have gone full circle or the pendulum swung in14 completely the opposite direction because instead of being optimistic --15 A. There would be another factor.16 Q. 402 Yes?17 A. As far as John Caldwell would be concerned.18 Q. 403 Yes?19 A. I knew that time was running out with my contract, and it was important to20 condition him, as far as I was concerned, that I would get an extension. I21 had nothing to lose by saying that I had reservations to him six months later.22 Q. 404 Well are you seriously suggesting, Mr. Tiernan, that when you wrote this letter23 what you intended to do was to lay the ground for an extension period by24 representing the position to be that you were pessimistic whereas in fact you25 were optimistic?26 A. I was optimistic, yes.27 Q. 405 I see. That this letter was really trailing a scent across Mr. Caldwell's28 path to cause him to question his ability to enforce the contract at that time?29 A. Just repeat that, please?30 Q. 406 Were you endeavouring to create a situation, by this letter, which was aPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

941 situation which was not factually based, but you were taking a deliberate step2 to soften Mr. Caldwell up so that he'd give you a further extension on the3 contract, is that what you say?4 A. Well that's a possibility.5 Q. 407 Everything is a possibility, Mr. Tiernan. I'm just wondering whether by way6 of explanation for the apparent distinction between what you recorded as being7 your views in December and you subsequently recorded as your views in July,8 whether the explanation for that is that you still maintained the same view but9 you expressed a different view for your personal advantage of extending the10 contract period, which is what I understand you to be saying now?11 A. Yes.12 Q. 408 Is that the position?13 A. Well I would also say this, Chairman. That I would have been watching and14 following and tracking material contraventions for -- on similar lands. And15 building a picture up as to the reaction of the board to material16 contraventions to see were they endorsing them. In other words, granting17 permission. And I would say that during that six-month period other material18 contraventions fell with the board. And that may have been a factor.19 Q. 409 As and from the publication of the refusal of planning permission, that's the20 board's decision, at 1246.2122 Of the 9th of July 1991, that effectively brought an end to any possibility of23 advancing your project to develop these lands until such time as the matter24 came for review and ultimate pronouncement in the draft Development Plan; isn't25 that right?26 A. We did.27 Q. 410 And we know that the council put the lands in as being for residential28 development in the publicly circulated draft of their draft Development Plan,29 which was considered by the public from September 1991 onwards. The draft30 Development Plan was adopted as of the 10th of December of 1993. And thatPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

951 encouraged you to the belief that your planning application would be, any2 planning application would be successful; isn't that right?3 A. Yes.4 Q. 411 Right. And you, through Mr. O'Connor, again lodged the planning application5 to build, on this occasion, 503 houses. And that matter came before South6 Dublin County Council planning authority. Reformed at that time. As we see7 at page 2210 on the 13th of March 1994, there was a decision to grant planning8 permission for 403 houses subject to 39 conditions; isn't that right?9 A. Yes, there was eventually 520 houses built.10 Q. 412 Yes. That planning permission, in other words, issued before the completion11 by you of the acquisition; isn't that right? It took place on the 16th of June12 of 1994. It's matter of the calendar as to whether I'm correct or otherwise?13 A. Yes, it did.14 Q. 413 And ultimately, I know that you modified the planning permission over time to15 reflect certain changes. But essentially the authorisation to build on these16 lands stems, in essence, from this initial decision; isn't that right?17 A. It does.18 Q. 414 I'll leave the planning aspects there, Mr. Tiernan. As you are aware, the19 Tribunal in the course of its examination of you in the past number of days has20 highlighted deficiencies which exist, both as regards your discovery and21 provision of information to the Tribunal. And you have undertaken to remedy22 each of those matters; isn't that right?23 A. Yes.24 Q. 415 And I take it that you will, if you believe it necessary to do so, take such25 advice as is necessary to prepare such affidavits as you are obliged to do on26 foot of any order in a way which complies with the provisions of the High Court27 rules in regard to the form of any affidavit of discovery which is delivered by28 you; isn't that so?29 A. Yes.30 Q. 416 There may be other questions put to you, Mr. Tiernan. Just hold on.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

9612 CHAIRMAN: Mr. Miley, do you want to ask any question?34 MR. MILEY: No questions, thank you Judge.56 CHAIRMAN: Mr. Redmond, do you want to ask --78 MR. REDMOND: Chairman I do have just a short number of questions for Mr.9 Tiernan.1011 MR. JOSEPH TIERNAN WAS QUESTIONED AS FOLLOWS12 BY MR. AIDAN REDMOND:1314 Q. 417 Mr. Tiernan, I appear on behalf of Mr. Rennicks. And whilst I appreciate we15 have come on a long journey, by virtue of Mr. Rennicks' involvement I have to16 bring you back to the beginning briefly. Primarily what I want to address is17 the nature of the agreement between you and Mr. Rennicks that was reached in18 1989. I want to start by pointing out the following to you.1920 The initial contract that you entered into was signed on the 24th of November21 of 1989. And on the same day you wrote a cheque payable to Finbar Cahill &22 Co. for 110,000 pounds being the deposit. The following day you got a cheque23 from Robin Rennicks in the sum of 110,000 pounds. And that was then sent24 under cover letter to Bank of Ireland in Blackrock to meet the cheque that you25 had written.2627 When did you meet Mr. Rennicks? You had a meeting in his house attended by28 Mr. Luke Mooney and his wife. How close to the 24th of November was that29 meeting?30 A. Perhaps the date that's on the cheque.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

971 Q. 418 So it's possible --2 A. I believe it was on a Saturday.3 Q. 419 Well if I could be of some assistance. If we could refer to page 2949 on the4 brief?56 This is a letter dated -- from you, dated the 25th of November 1989. It says7 "I telephoned you twice on Friday last" so we're presuming that this is some8 days later and you are enclosing a cheque posted to the Bank of Ireland in9 Blackrock. So the 25th. I don't know what day of the week it is. But I'm10 presuming that --11 A. Can I ask you, what date is on Mr. Rennicks' cheque?12 Q. 420 The 25th of November 1989.13 A. Yes.14 Q. 421 And this letter is dated the 25th of November 1989. I'm just trying to put in15 context when you met, attended at Mr. Rennicks' house for the purposes of16 discussing with him the possibility of him investing in this project?17 A. It's probably the date that's on his cheque.18 Q. 422 Okay. If we then take --19 A. I'm not sure.20 Q. 423 If we take, for the sake of argument, that you met Mr. Rennicks on the 25th.21 You had written a cheque on the 24th, the day before, for 110,000 pounds with22 no confidence that there would be any funds to meet that cheque; would that be23 fair to say?24 A. Well there wasn't sufficient funds in that account, that's right.25 Q. 424 And you didn't have any certainty, prior to meeting Mr. Rennicks, that he was26 going to invest any money in this project?27 A. No certainty.28 Q. 425 No certainty. So when you attended with him you presumably initially sought29 200,000 pounds or did you seek 110,000 pounds?30 A. 200,000.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

981 Q. 426 Right. Why, as matter of interest, were you looking for 200,000 when all you2 needed was 110,000?3 A. Because I believed 25% interest in it was worth 200.4 Q. 427 If I have the figures right, you were offering a 50% stake for 200,000 pounds.5 And the figures that have been --6 A. Yes, I stand corrected. That's right.7 Q. 428 And the figures that have been put before the Tribunal resulted in you having a8 valuation for the purposes of finance with rezoning and planning at 6 million.9 A. Yes.10 Q. 429 5.9, nearly 6 million I think you said.11 A. Yes. But that was a different year.12 Q. 430 I appreciate that. But I'm going to deal with that very issue right now.13 Your agreement with Mr. Rennicks was that he would put up 110,000 pounds, and14 in return he would get 25% of the lands. Could we have page 3000, please?1516 If I could refer you in particular to the third paragraph, "I acknowledge17 receipt of a non-refundable cheque for 110,000 pounds on the 25th inst. From18 Mr. Robin Rennicks for a 25% share in the above lands."19 A. Yes.20 Q. 431 So effectively, if we understand correctly, this being one of the only two21 documents which appears to record your agreement with Mr. Rennicks or anything22 concerning the agreement with Mr. Rennicks. There was no time frame on the23 agreement, once Mr. Rennicks came up with the 110,000 he, going into the24 future, was effectively permanently entitled to 25%; is that correct?25 A. Well I'm sure I would have advised him of the dates of the contract.26 Q. 432 Well I'm asking, in fairness, Mr. Tiernan, a different question. Did you27 effectively agree with him that for 110,000 pounds he got 25% of the lands, no28 matter what its value became down the road?29 A. Oh, yes.30 Q. 433 And that at some point you were going to have to account to him for that 25%,Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

991 no matter what the value had become?2 A. That's right.3 Q. 434 That's right.4 A. The value didn't enter it.5 Q. 435 So when you got the 110,000 pounds you used it to pay the non-refundable6 deposit.7 A. Correct.8 Q. 436 Did you tell Mr. Rennicks that you were going to use his 110,000 pounds to pay9 100% of a non-refundable deposit?10 A. I would say so.11 Q. 437 Are you certain of that?12 A. No, I'm not certain but Mr. Mooney was with me.13 Q. 438 So having taken the 110,000 and having spent it on the deposit, you are14 satisfied and you would agree that going forward, no matter what happened,15 Mr. Rennicks was entitled to 25% of this land or the equivalent value.16 A. Yes.17 Q. 439 When in September of 1991 the notice of rescission was served and the deposit18 was forfeited and you no longer had an interest in the land, what did you feel19 you owed Mr. Rennicks at that point?20 A. I believed I'd owed Mr. Rennicks nothing at that time because I had no -- the21 contract expired.22 Q. 440 So when you said a few moments ago that for the 110,000 pounds he was getting23 25% no matter what. You didn't in fact mean that. This was conditional, he24 was putting up 110,000 pounds for a possibility of a share with you he could25 end up with nothing.26 A. As long as there was a contract and something happened he was entitled to 25%.27 Q. 441 Okay. There was, was there not, in existence, a contract on the 24th of28 January 1994?29 A. There was.30 Q. 442 Could I have page 3086, please?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

10012 I'm referring you in particular to paragraph three. "We have also explained3 to you, that despite the fact that he has no legal obligation to make any4 payment to your client in relation to the Finnstown project, Mr. Joe Tiernan is5 prepared to refund to your client his investment in the sum of 110,000 pounds."67 That would be incorrect then on the basis of what you've just told the8 Tribunal.9 A. That was, as far as I was concerned, what happened, as you probably know, but10 I'll cite it again to you. The contract lapsed, there was a period of time11 of maybe twelve months, or eighteen, when I did not have a contract on the12 lands. I was in limbo, no entitlement to it. I negotiated a new contract13 for a slightly -- for similar lands plus a piece, at a different price.14 Q. 443 And at this stage did you feel that you owed Mr. Rennicks nothing?15 A. Mr. Rennicks sought, eventually sought the return of his deposit through his16 solicitors. And the solicitors advising Mr. Mooney and I, advised me that17 this was the way to reply.18 Q. 444 Leaving aside then the fact that this was the way you were advised to reply,19 what did you tell your solicitors was the agreement between you and20 Mr. Rennicks?21 A. I told Beauchamps that what the agreement was, that it was what he paid; 110.22 And that that was for 25% of the profits.23 Q. 445 Was there any specific agreement between you and Mr. Rennicks as to what would24 happen if you ended up with no entitlement to purchase the land?25 A. Not that I can recall.26 Q. 446 Was it your understanding that if you caused or were involved in a situation27 where there was no contractual entitlement to buy the land that Mr. Rennicks28 would get his money back?29 A. Not to my knowledge.30 Q. 447 So none of this was discussed with Mr. Rennicks, and would that be because youPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1011 were under pressure on 25th?2 A. No. In all probability I was only one of three people at the meeting. I'm3 sure, although I don't recollect now, I'm fairly certain that Mr. Mooney or I4 would have pointed out that this is not guaranteed venture, there's a risk5 here. And there was nothing guaranteed.6 Q. 448 You say or you have said in your evidence that you were taking a risk. What7 risk were you taking. Mr. Rennicks was putting up 110,000 pounds for a8 non-refundable deposit. If that deposit was forfeited and somebody else9 bought the land, what risk had you taken?10 A. Time and effort and whatever other expenses would be incurred in processing the11 applications.12 Q. 449 Well in fairness, now, Mr. Tiernan, time and effort is not a risk. What risk13 had you taken?14 A. As I outlined.15 Q. 450 So would it be fair then to say that the only risk you were taking was monies16 that you might expend in the course of getting this land into your possession?17 A. For the benefit of Mr. Rennicks at the time, 25% and, and the balance for18 myself and a small share for Mr. Mooney of 10 -- 5%.19 Q. 451 110,000 pounds for one quarter of the land. That would certainly make a lot20 of sense if the purchase price was in reality 400,000; wouldn't it?21 A. I don't know.22 Q. 452 Because you see, there was a transaction where the land was sold for 400,00023 after you had handed over -- or after 110,000 had been handed over to you.24 That was the sale from Southfield to Vino.25 A. I'm aware of that.26 Q. 453 So 25% for 110 would seem to dovetail with that.27 A. Well it might but there was no connection.28 Q. 454 Lastly, Mr. Tiernan, I just want to check with you. Having received the money29 from Mr. Rennicks, did you tell him about the forfeit of the deposit?30 A. I do not remember.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1021 Q. 455 Did you tell him about the success of the Section 4 motion?2 A. I'm sure I did. Mr. Mooney would have been the contact there, but I'm3 sure -- there's a possibility I communicated with him.4 Q. 456 You're not certain of communication?5 A. I'm not certain going back that far, being honest about it. But I'd be6 surprised if I didn't.7 Q. 457 Did you communicate with him in respect of the adverse judicial review8 decision?9 A. Again, I'm not certain, but it's a possibility I did.10 Q. 458 Did you communicate with him in respect of the adverse An Bord Pleanala11 decision?12 A. Both things happened together. Again, I would repeat that Mr. Mooney was the13 person who introduced Mr. Rennicks to me. I kept Mr. Mooney posted all along.14 I would have assumed, at the time, that Mr. Mooney would have communicated with15 Mr. Rennicks. I know that there was some communication between he and I.16 Q. 459 Did you --17 A. But I'm not certain of the communication.18 Q. 460 So you're not certain that you communicated on any of these points with19 Mr. Rennicks?20 A. I'm not.21 Q. 461 Right. In the document on page 3000, there's a reference again to a 5%.22 Sorry, if I could have page 3000 again, please? You confirmed your agreement23 to give Luke Mooney 5% and you say to give you free 5%. So he hadn't done24 anything for that 5%; is that correct?25 A. Well he had introduced Mr. Rennicks.26 Q. 462 And you also said that you would propose to Mr. Robin Rennicks that he do27 likewise. Did you ever --28 A. I did yes.29 Q. 463 You did communicate to Mr. Rennicks?30 A. No, I didn't, I never advanced that.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1031 Q. 464 You say that eventually a disagreement arose and in answer to some questions by2 Mr. O'Neill, you confirmed that you were more than happy to payoff Mr. Rennicks3 at this stage because the land had substantially increased in value because of4 the change in status; is that correct?5 A. That is right. I was surprised that Mr. Rennicks was advised to seek the6 return of his original investment at that time.7 Q. 465 And if you were happy to pay him back. The demand for payment had been made8 in December. Why did it take you until July to do so?9 A. But that's what had been agreed. There was no delay on what was agreed. It10 was paid to him as per the agreement.11 Q. 466 Thank you, Mr. Tiernan.1213 CHAIRMAN: Thank you.1415 JUDGE FAHERTY: Just one thing, Mr. Tiernan. You met Mr. Goodman; isn't that16 correct?17 A. Once.1819 JUDGE FAHERTY: With Mr. Lawlor, I think.20 A. Correct.2122 JUDGE FAHERTY: When you came out of that meeting, I think you said23 Mr. Goodman and Mr. Lawlor may have discussed matters after you left. When24 you came out of the meetings with Mr. Goodman. What did you know of the claim25 of what Mr. Goodman was claiming or alleging?26 A. There was very little detail at the meeting.2728 JUDGE FAHERTY: Well what sense did you have?29 A. It was like mirrors. Because I sensed that there was, being honest about it,30 I sensed that there was tension between Mr. Goodman and Mr. Lawlor.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

10412 JUDGE FAHERTY: Yes.3 A. And it was only when I was there that I realised that Mr. Lawlor had invited me4 down there to outline the efforts I had made to get planning.56 JUDGE FAHERTY: Yes, but did you understand Mr. Goodman must have had reasons7 to meet you? That he must have had some connection with --8 A. Around that time Mr. Lawlor would have told me that Mr. Goodman provided the9 finance.1011 JUDGE FAHERTY: Yes. Exactly. Now, you've told us yesterday that when12 Southfield sold the lands, certainly there was a transfer of the lands or a13 sale rather to Vino Properties, that you said you were not Vino Properties but14 that you believed that Vino Property --15 A. Sorry, I can't hear you.1617 JUDGE FAHERTY: The sale from Vino Properties.18 A. Yes.1920 JUDGE FAHERTY: That you believed that really and truly you were dealing with21 the same people. Notwithstanding the sale.22 A. I did, yes.2324 JUDGE FAHERTY: Now, when you were negotiating the sale then or the purchase25 of the lands from Vino, do you understand? Why didn't you ever inquire whether26 or not, if you believed that Vino and Southfield were the same entities27 effectively or the same persons were behind it, I should say. Did you ever28 consider asking Vino or asking for some confirmation that any claim or interest29 that Mr. Goodman might have in the lands was satisfied before you proceeded30 with the contract?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1051 A. No, Your Honour. My concern at all times was to secure a new contract. And2 not to be stirring up or going behind anything that was being put forward.3 Because I felt, I felt that I had no responsibility to put my nose into the4 inner workings between two companies I was not privy to.56 JUDGE FAHERTY: Right. Well would -- if you had the suspicion, which you had7 clearly --8 A. Yes.910 JUDGE FAHERTY: -- that Southfield and Vino were one and the same. It wasn't11 beyond the powers of logic that Mr. Goodman, and his advisors, might become,12 might have the same idea, which we have seen that they had ultimately in 1994,13 isn't that correct? I'm just asking you, in 1992 when you were negotiating the14 contract, why you didn't ask Mr. Caldwell or indeed Mr. Lawlor at that stage,15 whether or not, to their knowledge, Mr. Goodman's claims had been satisfied?16 A. No I didn't because it wasn't my concern. I didn't want to be asking17 questions, Your Honour, about things that --1819 JUDGE FAHERTY: Well it might have affected the sale to you ultimately,20 Mr. Tiernan. If, for example, Mr. Goodman had gone to court or started court21 proceedings to, if you like, injunct the sale. Do you see what I'm getting22 it?23 A. I do, yes.2425 JUDGE FAHERTY: Given that you had a suspicion that Southfield and Vino and26 the same persons were behind it. I'm just wondering why you didn't make those27 inquiries?28 A. I fully appreciate what you're saying. The thought never occurred to me that29 Mr. Goodman was going to be shortchanged, the way that he's alleged to have30 been shortchanged by -- I saw reference to 150,000 approximately.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

10612 JUDGE FAHERTY: 157,000.3 A. Yes.45 JUDGE FAHERTY: You knew as late as, I think, it was around November of 19916 you might have met Mr. Goodman, was it?78 MR. O'NEILL: Yes.910 JUDGE FAHERTY: Roughly that time. And we're talking about, if you like,11 negotiating the other contract was ongoing indeed, and assigning it back in12 '92.13 A. Yes, I had no contract at all in existence when I met Mr. Goodman.1415 JUDGE FAHERTY: But you were negotiating and you ultimately had signed a16 contract; isn't that right?17 A. No, I hadn't.1819 JUDGE FAHERTY: You did in 1992, a few months later.20 A. Eventually.2122 JUDGE FAHERTY: You didn't know, at that stage, when you were signing the23 contract, that there had been any resolution with Mr. Goodman?24 A. I did not.2526 JUDGE FAHERTY: Despite you knowing, believing that Vino and Southfield, that27 the same persons were behind it.28 A. I had no way of knowing that there wasn't a satisfactory resolution.2930 JUDGE FAHERTY: You didn't make any inquiries?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1071 A. No, I didn't, genuinely, Your Honour. Because my concern, and I was totally2 preoccupied with trying to secure the lands with a new contract.34 JUDGE FAHERTY: Thanks very much.5 A. Thank you.67 MR. O'NEILL: There is just one matter, Mr. Tiernan, before you leave the8 witness box.910 THE WITNESS WAS FURTHER QUESTIONED BY MR. O'NEILL AS FOLLOWS:1112 Q. 467 You have entered into certain consents to the Tribunal obtaining information13 from certain banks which you've named; isn't that so?14 A. I have, yes.15 Q. 468 In the course of information that has come to the Tribunal there are references16 to Patrick J Tiernan. Can you confirm that you are Patrick J Tiernan?17 A. I am, yes.18 Q. 469 And you have bank accounts in that name in addition to the name Joe or J19 Tiernan and J and M Tiernan; is that right?20 A. They are one in the same, accounts21 Q. 470 You say the accounts are one and in the same.22 A. I do, yes. My correct name is Patrick Joseph Tiernan but I'm always known as23 Joe.24 Q. 471 Sure. But the bank documentation that we have would appear to refer to25 accounts both in the name of J and M Tiernan. J Tiernan, also Patrick J26 and --27 A. My passport of some years ago would be Patrick Joseph.28 Q. 472 I see.29 A. My current passport is not that way.30 Q. 473 Fine.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1081 A. And I think that would explain that.2 Q. 474 Sure. I take it you'd signed the consents in both names then.3 A. Well if I didn't I will. There's no problem.4 Q. 475 That's fine. Thank you, Mr. Tiernan.5 A. Thank you.67 CHAIRMAN: Thank you, Mr. Tiernan, for attending. Subject to the need to8 recall you if it does arise, your evidence is concluded.9 A. I am available with the appropriate notice, Chairman, Your Honour.1011 CHAIRMAN: Thank you very much.1213 MR. O'NEILL: The next witness is Mr. David Galbraith. Mr. Galbraith, could14 you come forward to the witness box, please?1516 MR. DAVID GALBRAITH, HAVING BEEN SWORN, WAS QUESTIONED17 BY MS. COGHLAN AS FOLLOWS:1819 CHAIRMAN: Good afternoon, Mr. Galbraith.20 A. Good afternoon.2122 MS. COGHLAN: I believe you have a degree in Engineering and Mathematics and a23 diploma in Town and Country planning and traffic engineering.24 A. That's correct.25 Q. 476 And since the' 70s you've conducted a practice with various companies and in26 the middle east and I believe now you are working for the council. For all of27 the years since the late' 70s you have been practising as an engineer?28 A. Yes.29 Q. 477 As I say, you started your life with John Paul and Co. in the late' 70s. You30 then went to the middle east. You returned to Ireland and you were employed byPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1091 Stenclas Kenny and Partners and in January of 1986 you set up as a sole2 practitioner.3 A. Yes.4 Q. 478 In relation to the lands that the Tribunal is concerned with, which are known5 as Coolamber. The first contact we have with you is in May of 1988. Can you6 just outline for the Tribunal how you were contacted in relation to the7 Coolamber lands, please?8 A. I was working for Jim Kennedy on a number of projects. And they were looking9 at the draining of the Coolamber lands for a shopping centre at the time.10 They were also looking I think at the Cruck House, the adjoining development11 for a shopping centre. That's where it started.12 Q. 479 Perhaps if I might explain. One of the first maps that we have, which is at13 page 510, has a job number on it and it's 199, and if that map can be turned to14 the left, please? Just down in the legend on the right hand corner you'll see15 199.16 A. Yes.17 Q. 480 And that is a sequential list of job numbers that you have. Each time you get18 a new job I believe you attribute a new job number to it?19 A. Yes, and on a number of ones which the client name changes, which has happened20 on jobs out there, I also give it a new job number.21 Q. 481 In relation to the Coolamber lands maybe before we go into the few documents22 that we have. I think it's necessary to say that your recollection is you23 handed back the originals of your files and the copies of your files to24 Mr. John Caldwell and/or Mr. James Kennedy?25 A. Some, in this case, yes, there was some documents and some original negatives.26 It's the only job that I know of where the negatives are no longer in my27 possession.28 Q. 482 Can you recall why it was that either of these parties asked you for the29 originals and the copies of the files back?30 A. They were done urgently and they were needed for a meeting and I was told thatPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1101 they would be returned the following day, as we didn't have time to take the2 prints of them. But or they were needed to overlay on the drawings but I3 never got them back.4 Q. 483 Did you ever seek the files back?5 A. Yes, I did.6 Q. 484 And why do you believe they weren't furnished to you?7 A. I don't know.8 Q. 485 In any event, this is May of 1988. And you record this as job No. 199. In9 your client list which you furnished to the Tribunal and it ranges from 110 through to 5 or 600 jobs. 199 is described as "Shopping centre Lucan and the11 client is Financial Indemnity Company Ireland Limited and Binchy and Partners".12 You say it was Mr. Kennedy that approached in relation to the drainage of13 Coolamber. Can you recall why it was you described your client as Binchy and14 Partners and/or FICOL?15 A. Well I was working on the adjoining Cruck House development and the client at16 that time was actually Financial Indemnity Company. It was Jim Kennedy who17 contacted me. Contact was initially made by Jim Kennedy on most jobs. But it18 could have been John Caldwell. John Caldwell would have been involved as well19 and I wasn't probably initially told who the client was. I was just looking20 at drainage proposals for two developments, I was already working on one.21 Q. 486 Yes, you were also out in Cruck House and we know that has a job number of 14222 which is a lot earlier, probably 1986 in your client list. In relation to23 Cruck House and also you had dealings with the same or similar clients in a job24 number 84, which is described as Baldoyle, in those dealings you were dealing25 with Mr. Kennedy. And who else were you dealing with?26 A. In all of those I would have been dealing with Mr. Kennedy, Mr. Caldwell and on27 certain other cases with, what was his name, I can't think --28 Q. 487 Was it Mr. Riordan?29 A. Bill Riordan. Rowanne Builders.30 Q. 488 Did you have any contact with Mr. Lawlor in the context of those dealings?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1111 A. I would have had dealings with Mr. Lawlor on most of those developments as well2 because he was acting as a public representative.3 Q. 489 So in May 1988, when Mr. Kennedy approached you for Coolamber, who did you4 perceive to be your client, in general, in relation to your dealings with5 Mr. Kennedy? Did you perceive it to be all of the people that you mentioned a6 few minutes ago or just any one individual or any company?7 A. No. As I say, I was working for numerous companies for those people and I8 wasn't aware, initially it was probably I was just doing a survey and it was a9 project which, which might come down the road. And it was actually, I think,10 after May there was nothing done until December then. So it wasn't on hold11 for six months.12 Q. 490 Yes.13 A. And then it came back again, and then eventually when they decided to move it14 then they would have told me who the client was who I had to invoice.15 Q. 491 The reason I asked you the question is because on perusing your diary, which16 you have provided to us, because obviously you kept your diaries. When you17 look at the job number for Coolamber you often put in your diary as related to18 that the other job numbers like the one for Baldoyle and the one for Cruck19 House and you put them together as one because obviously you are meeting20 Mr. Kennedy, so I just wanted to know if you perceived them really to be one21 and the same, the clients, because you put the job numbers as being the same22 very often?23 A. Mr. Kennedy acted as if he was the agent acting for all of these companies and24 that he was able to give instructions on behalf of all of these companies.25 Q. 492 Did you believe him to be more than the agent of these companies?26 A. Initially not, but as I say, I was also looking, I was trying at at that stage27 to get the big development which I knew he was working on, which was Westin28 Park in Lucan, which did follow on from all of those. And I knew that he was29 the client on those jobs as well. As I say, it was down the road when I got30 other information initially, he was acting as agent.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1121 Q. 493 I see. This map that's on screen, in fact we received from the discovery of2 Mr. Caldwell, not from your own file, is a May of 1988 map described as3 "shopping centre, Finnstown, Lucan, County Dublin." You can see the lands4 there, the Coolamber lands' line to the right of the Newcastle Road, which is5 the road most left on the map.6 A. Yeah.7 Q. 494 And you can see you have the foul sewer coming from the top eastern corner of8 the lands.9 A. Yeah.10 Q. 495 What were you doing -- how much work had you put in in relation to this map by11 May of '88?12 A. In effect, according to my diaries I think I was actually, Jim Kennedy actually13 produced that drawing and for a meeting which he was to have with the County14 Council. He wanted that drawing with my headed notepaper on it. So that15 drawing, it's only just a very quick proposal, he told me, I think, was done by16 one of his other consultants who was working for him before on that project.17 Q. 496 You say that this map in May of '88 is one that James Kennedy produced to you18 and that the foul sewer was already drawn on it?19 A. That foul sewer, I think, was already drawn on it.20 Q. 497 There is certainly in the diary, we will come to a matter in '89 where21 Mr. Kennedy certainly brings you maps and they are for the council. I'm just22 wondering is this the same map. Are you confusing it with maybe a May 198923 map?24 A. It could be, I'm not sure. Because there is other ones as well because that25 pipeline was not actually used. It was only an initial -- but it was run26 northerly direction, the outfall from that development, to connect up with the27 Pentagon pipeline.28 Q. 498 Yes. But I suppose, do you recall that it was you that hatched out this foul29 sewer line that's going through the public playing pitches or was it something30 Mr. Kennedy gave you from another engineer?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1131 A. That I'm not a hundred percent sure of, it could have been either. I had2 other technicians working for me as well, so it could have been drawn by one of3 them.4 Q. 499 Essentially at this time, I take, it Mr. Kennedy wanted to understand what was5 the drainage possibilities for Coolamber?6 A. Yeah.7 Q. 500 So you essentially were out there taking levels to see what way the outfall8 would happen?9 A. At May 1988 this was only an initial proposal. The levels weren't taken until10 I think later that year, December '88 or January '89.11 Q. 501 Well maybe if we put page 511 on screen just to refresh your recollection.12 You may or may not have done this, but it's essentially setting out all the13 gradients, I believe, between the Coolamber site and the Grifeen River. Is14 this a document you would have prepared? It's dated May of 1988 as well.15 A. Well this is where, I can't remember where that information came from. As I16 say, because that's why I think that this was a drawing which was possibly done17 by another consultant and handed over to me at that stage.18 Q. 502 So essentially you were happy to take a drawing of another engineer and put19 your own block title or legend on it and say that you were the author of same20 for the council purposes?21 A. Well just as I say, I was happy -- I did checkout the levels at both ends and I22 did, I would have checked the information on it and checked the design, that23 the design of it was adequate to take the area of the lands concerned.24 Q. 503 Was that something Mr. Kennedy did with you, that he would present you with25 maps or documents that you would put your name on and that you would present as26 being the author of in your dealings with Mr. Kennedy?27 A. Yes, sometimes. It happened. It didn't happen much, but it did happen.28 Q. 504 And in relation to that, when Mr. Kennedy presented you with various maps from29 other engineers, would their legend have been on it or would they have been30 deleted or blanked out before you would get copies of same?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1141 A. It could have been either, I don't remember.2 Q. 505 Do you recall the other engineers he was using at the time?3 A. Well Mark O'Reilly was one of the engineers, and I used to check with Mark4 O'Reilly normally when things like that happened. I don't remember in that5 case.6 Q. 506 You probably would have been dealing with Mark O'Reilly in relation to the7 Cruck House lands?8 A. Yeah, and there was other consultants as well, I don't remember the names of9 them offhand.10 Q. 507 As you say, the next thing on file doesn't seem to happen until late 1988.11 That, I think, is largely due to either we don't have your file or the file is12 missing. But in your statement just in that period you state at page 2928, at13 subparagraph two "I recollect that an alternative proposal was examined in late14 1988 to discharge the foul from Coolamber lands into an existing pipeline which15 I now know to be the Pentagon pipeline."1617 So you have a recollection of late '88, you had carried out or you had put your18 name on documents showing maybe the potential of the foul sewer to drain to the19 east of Coolamber. What do you recollect in relation to the alternative20 proposal for the lands to drain effectively west -- northwesterly?21 A. In a northwesterly direction there was a proposal drawn up. That's one I22 don't have any information on it.23 Q. 508 But you recollect Mr. Kennedy or somebody saying to you that they were now24 looking at the possibilities of draining up to the Pentagon pipe?25 A. Because I was getting information that it wasn't possible to bring it down26 through on an easterly direction. And I actually did a proposal for 32527 houses, a pub and filling station on that development which would have included28 bringing the outfall in a northerly direction into the Pentagon, what I now29 know to be the Pentagon pipeline.30 Q. 509 So around this time as well Mr. Kennedy instructed you to do the layout for aPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1151 filling station, shops, medical centre and 325 houses.2 A. Yeah, that was done for a meeting with Dublin County Council, which I think was3 the 24th of January '89.4 Q. 510 Just before January of '89, at subparagraph three of your statement you state5 "An agreement was reached in late 1988 with Dublin County Council Sanitary6 Services to discharge the foul and surface water outfall from the Coolamber7 lands into the Pentagon pipeline."89 What is your recollection in relation to the agreement with sanitary services10 in late '88?11 A. As I say, I know there was discussions held with sanitary services and with12 Gerry Kinley and there was a meeting with John McDaid. And there was13 proposals submitted, to basically show that it was acceptable to connect into14 the Pentagon pipeline and that the system worked.15 Q. 511 Would you and Mr. Kennedy have attended these meetings or was it you alone or16 was it Mr. Kennedy alone, do you recall?17 A. It could have been. Mr. Kennedy did come to some of the meetings, but I think18 generally the meetings with sanitary services would have been only with me19 present.20 Q. 512 Yes.21 A. They were in O'Connell street at the time.22 Q. 513 You go on at subparagraph four to say "At the same time either James Kennedy of23 John Caldwell instructed me to do a proposed layout for 325 houses on the24 Coolamber lands to include a pub and a filling station."25 A. Yeah.26 Q. 514 "I do not have either the original layout or a copy of it and it is my27 recollection that I gave the original layout documents to either James Kennedy28 or John Caldwell."29 A. I think it was for a meeting, and as I explained already, I was to get those30 back but they were never returned.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1161 Q. 515 In relation to this. You state that it was either James Kennedy or John2 Caldwell. You are unclear as to who instructed you or were you dealing with3 both and it was much of a muchness?4 A. I was dealing with both of them so I'm not a hundred percent sure. I think it5 was more likely to have been Jim Kennedy than John Caldwell but I could be6 wrong.7 Q. 516 Did you associate John Caldwell from these lands from the outset?8 A. John Caldwell was acting as solicitor in Binchys on all of this work which I9 was doing.10 Q. 517 Yes. The first document from your diary that we have is at page 644, and you11 have various job numbers running down the left of your diary and a brief12 description of what you did in relation to same, just to the right of the13 number. The one I'm interested in No. 261, which is almost near the end of the14 page.15 A. Yeah, "261 meeting with Peter Byrne."16 Q. 518 This is the meeting you've mentioned where you were in with the council. Now,17 that says "meeting with Peter Byrne."18 A. "Jim will pick up you up." In other words Jim Kennedy.19 Q. 519 "3:30 p.m."20 A. We arranged to meet before then.21 Q. 520 And just in relation to the job No. 261. From your description of clients22 that you furnished to the Tribunal. That file was opened in January of 1991.23 And you'd called it "Housing at Finnstown, James Kennedy Finnstown Homes" as24 the description in your list. If that file was opened in January of '91 and25 the other job description which was 199 and it was described as FICOL Binchy26 and Partners. I'm just wondering, maybe the meetings in late '88 with the27 sanitary services, you believe you might have attended with them, I'm just28 wondering would it have been James Kennedy on his own given that you opened a29 new file here in January '89?30 A. It could have been. It looks like that I was actually, that a proposal beingPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1171 drawn up for Finnstown Homes which was Jim and Antoinette Kennedy, on that2 development as well. They were also doing, I was doing work for them on the3 Cruck House developments. But eventually, as I say, that was only initially4 nothing happened on that. And it then passed on to, I think, Southfield's.5 Q. 521 That was the company name that you eventually invoiced for work done?6 A. Yes, so I changed it from 199 to 261, because I had a feeling that there was7 going to be a new client and I wasn't sure who it was at the time so I just8 gave it a new job number.9 Q. 522 At page 642, we have your typed attendance of the meeting with Dublin County10 Council. We can see present at the meeting was Mr. James Kennedy, Mr. David11 Galbraith and Mr. Peter Byrne.12 A. Yeah.13 Q. 523 This is recorded as being the 24th of January 1989 and it states "the proposed14 site layout showing 325 houses, a pub and a filling station was shown to Peter15 Byrne."16 A. Yeah.17 Q. 524 And do you believe you did the site layout? If you only opened the client job18 No. 261 in January of 1989, is it possible that Mr. Kennedy actually gave you19 the layout for the 325 houses?20 A. No, I can remember I did that myself because I know there was a big negative21 which wasn't returned.22 Q. 525 Right.23 A. So I did do that layout.24 Q. 526 At No. 2 you say "The following points were noted by Peter Byrne.25 A. The proposed layout was unacceptable.26 B. Open spaces and non existing roads should be removed as they are suitable27 for travellers.28 C. Cul-de-sac can run inside Newcastle Road with preservation as further back29 on road towards Lucan.30 D. Road to north and west of site can be improved and houses fronting out toPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1181 them.2 E. Tidy up open spaces.3 F. Divide estate into three subareas with public open spaces each with roads4 on two or three sides. Public open spaces around centre in each subarea.5 Houses to face on to open space. Open space not to run along back of houses.6 G. Pub/Filling station would be better at southern corner of site.7 H. Service area to pub to be screened and backing onto filling station site.8 I. Access on to Newcastle Road should be reduced as much as possible as roads9 will probably not improve layout at present. Main access from Lucan from west10 road would be ideal. Access from north road to central area of site would be11 ideal and access to east section from Newcastle Road should be acceptable to12 roads.13 3. Sewage outlay already agreed with sanitary services. John McDaid was14 given to Peter Byrne.15 4. Peter Byrne noted that application would involve material contravention."1617 So essentially this reflects what happened at the meeting with yourself18 Mr. Kennedy and Mr. Byrne.19 A. Yeah.20 Q. 527 And it's apparent from No. 3 that the sewage outlay was already agreed with the21 sanitary services?22 A. Yeah, because that wasn't minuted at the meeting.23 Q. 528 So, effectively in relation to your proposed development for 325 houses.24 Could it be said that from your meeting with the council, at a minimum in25 relation to the sanitary, it was looking favourable?26 A. Yes.27 Q. 529 And it's noted there that the council official mentioned that a material28 contravention would need to happen, because as we know the lands were zoned29 agriculture at this point in time.30 A. Yeah, correct.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

11912 MR. O'NEILL: I know that Mr. Galbraith is unavailable to the Tribunal3 tomorrow and Miss Coughlan believes that we might be able to conclude his4 evidence within twenty minutes or so. I'm not sure whether the Tribunal5 considers sitting to achieve that end today.67 MS. COGHLAN: I appreciate it. I will just put a map on screen which is at8 page 643.910 After that meeting there's a couple of documents which suggest you went out11 again on-site and took spot levels for the various radiations on the lands.12 And this map here down in the right hand corner it's handwritten on it "levels13 to be taken for James Kennedy."14 A. Yeah.15 Q. 530 This document came from your own files. And also on the map you can see16 running left to right are various numbers written in as to, I take it, the spot17 levels. Can you recall was this something you did maybe back in May of '88 or18 is it something after the meeting with the council in January of '89?19 A. I think that was done before the council meeting in, I think, around December20 '88. That drawing, as from recollection actually was handed to me by Jim21 Kennedy and I think that's his writing on it.22 Q. 531 Yes.23 A. He actually indicated where he wanted the levels taken because we were agreeing24 fees and before we would agree fees I wanted to get him to give me exactly what25 information, he didn't want a full survey of the site done, he just want the26 initial spot levels.27 Q. 532 It would have been helpful for your meeting with the council to show your28 proposed drainage thoughts.29 A. But there was, I think, in March after the meeting in March '89, I think there30 was additional levels taken.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1201 Q. 533 And we'll come to that map. At page 645 there is another diary entry. On2 the 25th of January 1989. Again, if we come down to No. 261. It's a little3 X through it. You can see "Simon Clear, planning officer. Jim Kennedy.4 Grainne Mallon cancelled until tomorrow same time."56 So I take it you were to have a meeting on the 25th of January with another7 planning officer, Mr. Kennedy and Grainne Mallon?8 A. Yes, I think so, yeah.9 Q. 534 And can you recall Grainne Mallon's role in relation to the Coolamber lands?10 A. To be honest with you I don't recollect what the position any of the planners11 were on those.12 Q. 535 At the next page in your diary, which is 646. You can see that that meeting13 with Simon Clear and Grainne Mallon and James Kennedy's name is crossed out14 this but this time it's described as job 184 in your diary. You say to take15 minutes for James Kennedy. 184, your job description for that is Baldoyle.16 So I was mentioning that you interchange your job description numbers, albeit17 it seems from page one day earlier, that meeting was to do with Coolamber?18 A. Yeah, in effect this is where I might have mixed it up and for Jim Kennedy to19 say we're just having a meeting with the planners and it turned out I was20 working on the Baldoyle and Lucan and on a number of projects at the same time21 so things did get mixed up. I think from recollection Simon Clear was one of22 the planners in Baldoyle and he wasn't in Lucan.23 Q. 536 Yes.24 A. So Grainne Mallon must have been Baldoyle as well and not Lucan. So the25 previous page was a total mistake.26 Q. 537 And obviously it was your practice, if Mr. Kennedy wasn't there, to do a note27 or minute of whatever meeting you would have with the various officials?28 A. Yeah.29 Q. 538 At page 647 we have that map that you mentioned. This is dated February 1989.30 And you have your spot levels typed or well written into it.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1211 A. Yeah.2 Q. 539 And again, they're at the same parts in the map that were referred to in the3 earlier map, where it was handwritten by Mr. Kennedy, you say, where you wanted4 to take the spot levels?5 A. They were the low spots and high spot on the site.6 Q. 540 From your investigations at this point did it look like the foul sewer could be7 drained to the east or to the west or --8 A. I think it was to the north, which was actually on the left hand, the bottom9 left-hand side of that drawing, which would be the Newcastle Road would be the10 bottom of the drawing. The north was to the left-hand side of the drawing and11 that's where the outfall was into the Pentagon pipeline.12 Q. 541 You were familiar with the Pentagon pipeline having been involved in the Cruck13 House and the capacity that it had?14 A. Yeah.15 Q. 542 So did you form an opinion that it was a pipe that was capable of draining16 these lands?17 A. Yes.18 Q. 543 In and around this period?19 A. Yeah.20 Q. 544 I believe the map wasn't turned on the screen when I was looking at it but the21 document reference is there for the Tribunal, which is more than adequate.22 A. Yeah.23 Q. 545 So on page 648 it's the 7th of February. Again, your diary records as the24 last entry at 261 "site visit." So I take it you were finalising some of the25 levels maybe for this map that we just saw on screen.26 A. That was with my technician, Willie. He actually did the survey for me and27 did the drawings.28 Q. 546 Yes. And on the 21st of February of 1989 you issued an invoice for the29 attention of John Caldwell to Southfield Limited. That's at page 649. So30 who was it informed you to bill Southfield?Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1221 A. That came from I think John Caldwell because I had already issued an invoice I2 know to Southfield, and when they hadn't paid it in a few months I invoiced3 Finnstown Homes and then those were credited as well and then I eventually4 invoiced, that was actually the first of a number of invoices that was issued5 in that project.6 Q. 547 Yes, we'll open some of those invoices. This, as you say, is the first. I'm7 just curious how you knew about the name, company name, Southfield. Up until8 this point you had described your client as Mr. Kennedy or Mr. Caldwell or --9 A. Well they would have been acting as agents. Now it was the time when I wanted10 to issue an invoice so I would have needed the name of a company, and John11 Caldwell would have provided that probably.12 Q. 548 Would you have spoken to Mr. Caldwell on the phone or was it at any one of the13 meetings with Mr. Kennedy or can you recall or --14 A. No, I used to have nearly daily discussions with both John Caldwell and Jim15 Kennedy for a number of years. And I also had a lot of meetings in John16 Caldwell's office.17 Q. 549 So you could have asked him at any one of these meetings?18 A. It could have come at any location, yes.19 Q. 550 In relation to this invoice, which is "re housing at Finnstown." You describe20 the work done as "meeting with planners. Taking levels on-site and meeting21 with client." When you say "meeting with client," which client are you22 referring to there?23 A. Well it must have been either Jim Kennedy or John Caldwell because they would24 have been the only two people who I would have been meeting in connection that25 as far as I know.26 Q. 551 Yes.27 A. And that was actually housing at St. Helens and not at Finnstown.28 Q. 552 You describe it as housing at Finnstown and in your job number underneath your29 signature you have 261 which we attribute to Coolamber?30 A. It's Coolamber which, I think, I invoiced as St. Helens, I didn't refer to itPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1231 as Coolamber.2 Q. 553 When you were having your daily contact with Mr. Caldwell, what was the content3 of those meetings, was it purely legal matters or did he convey views in4 relation to the planning or in relation to drainage, did your discussions with5 him, were they confined to legal advice or legal matters involving the lands?6 A. They wouldn't have been only just legal matters because they would have been to7 do with clients and invoices and how payments were received. They would have8 involved drawings. He would have been instructing me probably as much as Jim9 Kennedy on drawings which were required on any one project.10 Q. 554 So in relation to any of Baldoyle or Cruck House or any of them, Mr. Caldwell11 as much as Mr. Kennedy could have been asking you to take levels, or to check12 drainage or whatever it is?13 A. Yeah.14 Q. 555 The next matter in your diary is at page 651 and it's dated the 4th of March15 1989. And at No. 261 again, which we call the Coolamber job number. You16 state "checking and plotting extra levels for Jim. Taken by --"17 A. "Willie."18 Q. 556 "Willie yesterday", was that somebody you worked with in your office?19 A. Yes.20 Q. 557 So you were obviously out on-site again in March. And I see that day you had21 No. 163, which was Westin Park in your job description and 184 which is22 Baldoyle, so you essentially had a full day of matters dealing with Mr. Kennedy23 and/or Mr. Caldwell.24 A. I'd say probably over half the work I was doing at that stage was for them.25 Q. 558 So you obviously regarded them as major client and depended on them obviously26 for 50% of your income?27 A. Yes.28 Q. 559 The next invoice is at page 653. Again, it's to "Southfield Limited.29 Attention Mr. John Caldwell. Taking additional levels and it's for 31030 pounds." So this is the second invoice, in relation to the first invoice, itPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1241 dealt with meeting with planners and the meeting with client. It didn't2 invoice for any work done in December of 1988. Do you think there might have3 been another invoice and we just don't have it because of the file being sent4 back?5 A. It could have been. Or an invoice could have been issued for -- they could6 have said to invoice it for the Cruck House development or for the Pentagon7 pipeline so things did get mixed up. And they would say that they didn't want8 anything invoiced to that project because it was only at an initial stage and9 to invoice it towards another project.10 Q. 560 When you say they didn't want anything invoiced to that project, it seems from11 what you've just stated that really once you invoiced a company in Binchys or12 that Binchys gave you the name of, that it really didn't matter what the job13 was that you would paid just once, you know, you say you could have billed14 Cruck House for work done in relation to Coolamber. Is that because you15 understood them to be the same and that that was how it was treated at the16 other end?17 A. Yes, I did. They were acting as the agent and they would have instructed me18 to do that. A lot of invoices, as I say, I also invoiced Finnstown Homes on19 that project and they didn't pay either.20 Q. 561 But if these companies were different people, different clients, they couldn't21 discharge your fees in relation to work done on other lands unless they were22 one and the same?23 A. That's true.24 Q. 562 So, for example, and we'll see later Southfield does discharge bills of your's25 for work done and it seems on various matters, not just Coolamber.26 A. Yeah.27 Q. 563 And do you think that is because you were just dealing with a variety of28 company names but that the principals behind the companies were one and the29 same?30 A. When you think of it now I think yes, that probably was the case.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1251 Q. 564 Would it have been your belief at the time?2 A. I don't think so. I think at the time, the work was done and it was being3 done under instructions from Jim Kennedy and John Caldwell. And I would have4 just wanted to invoice it. I wasn't -- I was the technical person and I just5 wanted to get paid and how the procedure for invoicing. If I invoice one6 company and they paid me then I just followed their --7 Q. 565 You were happy?8 A. I just followed their instructions.9 Q. 566 The next diary entry is on page 655. And it's on the 21st of March of 1989.10 Again, it's the last entry on that page. And it says "Jim brought in foul and11 surface water layouts and outfalls. Company title blocked. Put on both and12 two prints of each per John McDaid's meeting taken." I think this might be13 what you were referring to earlier when Mr. Kennedy, it seems from this note,14 brought in maps to you. That the legend or the company title was blocked out.15 I take it you were to put your own legend on these maps and they were to be16 sent to John McDaid in the council?17 A. Yeah.18 Q. 567 Is that a fair understanding?19 A. That is fair understanding, yeah.20 Q. 568 So again we have Mr. Kennedy bringing someone else's maps to you. Do you know21 where he got these maps from?22 A. No.23 Q. 569 For the foul and surface water?24 A. I think that was the Pentagon pipeline and for a connection to that. That25 would have been done by other consultants.26 Q. 570 Was it is Mr. Kennedy and Mr. Caldwell's belief at this time that Coolamber27 could drain northwesterly to the pentagon pipeline in March of 1989?28 A. Yes.29 Q. 571 Were they instructions they were giving you that that was the case?30 A. I think the instructions probably would have been to make it work, that theyPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1261 wanted it to go that way and for me to come up with the design which was2 acceptable to be able to drain the Coolamber site and by taking the levels and3 by doing calculations I was able to show that it was possible to drain the4 Coolamber site into the Pentagon pipeline.5 Q. 572 At page 658, you're next diary entry is "25th of April." It's the first job on6 the page "No. 261. Phone John McDaid. Meeting with Jim, Westmoreland7 Street". I take it you were meeting Mr. Kennedy in his premises at8 Westmoreland Street during this period of time as well?9 A. Yes.10 Q. 573 Would you meet him often in Westmoreland Street?11 A. Quite a lot. I did work on Westmoreland Street as well.12 Q. 574 Yes, you did some surveying work in relation to it.13 A. Yeah, and he did refurbishments to the basement which I was involved in and14 also adjoining buildings.15 Q. 575 When he refurbished the basement was that a refurbishment in relation to16 putting in a residential?17 A. Yes.18 Q. 576 And did you do that refurbishment for him? The layout or the plans.19 A. No, I don't think I did the layout or the plans, I think I only did the survey20 of what was there.21 Q. 577 After the refurbishment had been carried out or --22 A. I don't -- I think it was probably before and possibly after as well. I can't23 remember the exact details.24 Q. 578 On page 662 on the 2nd of May of 1989, you have at the first entry there two25 numbers; 142 and 261. So here you have tied in the Cruck House job26 description with the Coolamber job description.27 A. And also 315, which is the Pentagon pipeline.28 Q. 579 Yes. And you say "Letter to planners to cover conditions in relation to29 planning ZA1330 is requested to Jim by John McDaid." So ZA1330 we know is a30 planning to do with Cruck House.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1271 A. Yeah, the 1985 permission.2 Q. 580 Is it clear that John McDaid wanted a particular letter to be sent into the3 council and the request came through Mr. Kennedy?4 A. That appears to be the case, yes.5 Q. 581 I see just further down at 266 you have "survey drawing of basement." I take6 it that's the Westmoreland Street surveys you were carrying out?7 A. Could be.8 Q. 582 On page 663 on the 3rd of May, "job description 261" it states "Deirdre, John9 McDaid's secretary courier letter - not ready" I presume that's the letter that10 James Kennedy mentioned to you on the 2nd of May?11 A. Yeah.12 Q. 583 You were obviously to organise a letter. Would he have given you letters that13 you would just sign? Would he dictate letters for you?14 A. Sometimes we would, he would dictate a letter over the telephone and I would15 type it out while we were talking or else, I think, in some cases letter16 drafts, especially regarding planning, would in some cases I know they came17 from John Caldwell's and then they would have been checked and put and I would18 have re typed them out.19 Q. 584 I see.20 A. Where there was legal implications on them.21 Q. 585 On the 4th of May 1989, at page 664, there's again two jobs descriptions tied22 in together. 261 is very hard to read. I think on the original it's clear23 and 142 which is Cruck House it says "Jim phoned."24 A. "Re used letter."25 Q. 586 "re used letter to meet --"26 A. "Conditions and planning."27 Q. 587 Again, that must be the letter that's referred to on the 2nd of May about the28 conditions and planning. Can you recall what you were doing in relation to --29 A. I think that was mainly to do with the Pentagon pipeline, the surface water30 connection to the river which wasn't acceptable. And I actually did that workPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1281 as part of the Coolamber, as part of job 261, I think. And because the2 Pentagon pipeline, when I got involved initially, was only a pipe with two open3 ends, so it had to be connected. Work had to be done at the Cruck House4 development and work had to be done at the river as well to basically bring it5 up to the standards of the building control section and that work was carried6 out over that period.7 Q. 588 And on the 5th of May, page 665. Again, we have two job descriptions here,8 which is 142 and 315. But in the body of it refers to the Coolamber map, it9 says "Jim phoned. Letter done by phone to --"10 A. "Gerry Kinley."11 Q. 589 "And hand delivered to planning office."12 A. "And bylaws."13 Q. 590 "and bylaws. Drawing 261894 revised." The drawing 26189 is in fact the14 drawing that we had on screen earlier showing the spot levels on Coolamber.15 A. Yeah.16 Q. 591 So in relation to this "letter done by phone." Is that that Mr. Kennedy would17 dictate the letter over the phone to you. When he says to Gerry Kinley, is he18 a man that was working with you?19 A. No, he was either in sanitary services or building control in Dublin County20 Council.21 Q. 592 And what's your understanding of --22 A. He would have been working in connection with John McDaid. So my recollection23 of that was actually that we had to satisfy, it was the outfall pipe which was24 basically the Pentagon pipeline, had to be brought up to standards before the25 planning office would make a decision on planning permissions on any of those26 sites.27 Q. 593 And is it your understanding that Mr. Kennedy had done this in agreement with28 Gerry Kinley in the sanitary services, the letter was agreed between them?29 A. I think that would have been a letter that I did on the phone, talking to Jim30 on the phone. And it would have been a letter just possibly after myPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1291 discussions with Gerry Kinley. I'd say I would have met Gerry Kinley in his2 office to get agreement on details regarding the, what was needed to bring it3 up to standard.4 Q. 594 Yes.5 A. Then that went to both, to all of the offices.6 Q. 595 You had a further site visit on the 17th of August, at page 679. It's job7 description 261 and 142 and you refer here to "taking graphs --8 A. Photographs.9 Q. 596 -- of pipes laid."10 A. Photographs.11 Q. 597 "Photographs." So you obviously went out and this is again probably the12 Pentagon pipe.13 A. Yeah.14 Q. 598 At page 699 on the 11th of September 1989, you have a lot of jobs together in15 one sentence. So obviously you had a meeting with your client about all of16 them. No. 163, 142, 261, 315 it's in the middle of the page.17 A. Yeah.18 Q. 599 And so you had a meeting in relation to Baldoyle, Cruck House, Coolamber and --19 A. And Westin Park.20 Q. 600 So you would often meet with Mr. Kennedy in relation to all of the various land21 deals. Albeit as you know they were all done in separate company names.22 A. Yeah.23 Q. 601 At page 700 of the brief, on the 12th of September, again, you've a diary24 entry, "142," it's near the end of the page. And "261" and "315." "Meeting25 with Niall re work done while I was away."26 A. That was with Niall, an engineer who was working with me, and he would have27 been doing surveys and levels. I must have been on holidays at that time.28 Q. 602 Yes. You have more meetings in your diaries which I don't need to go through29 in detail. The next one I'll move to is on the 15th of September 1989 and30 it's page 703 of the brief. It's on the top of the page "reply to JohnPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1301 Caldwell re letter discussed last week". Would that letter have been a letter2 in relation to the planning, in relation to the council or sanitary services or3 do you have any recollection?4 A. I can't remember exactly about 261. I don't remember the details in that5 letter. There was, it could have been concerning the Pentagon pipeline.6 Q. 603 Yes, you have "315" underneath "261" as a job description and that you describe7 as "housing at Newcastle Road, Agrippa and Binchy partners."8 A. I'd say that was probably to do with the outfall to the river because there was9 a lot of correspondence from Dublin County Council and their requirements to10 the outfall of the river at the Pentagon pipeline.11 Q. 604 This is probably is an example of Mr. Caldwell discussing the outfall, the pipe12 and the various planning matters with you in relation to --13 A. I think the County Council were threatening enforcement proceedings or to14 remove the pipe.15 Q. 605 It was a big gaping open at that time?16 A. Yeah.17 Q. 606 On page 704 on the 18th of December, "261, spoke to Tom Mullarky, he is happy18 with pipes laid to date and with block manholes." So you've obviously reached19 a level of agreement where somebody in the council is happy.20 A. He's an inspector in the building control section and we had done a site21 inspection together and he was the person who was confirming that we had22 brought them up to standards.23 Q. 607 Yes. The next document is at page 712. And it's a further invoice of24 your's. Again, addressed to "Southfield Limited." And it says "re housing at25 St. Helens, Finnstown, Lucan" you were saying that you used St. Helens to26 describe Coolamber albeit St. Helens is, more accurately, just underneath Cruck27 House and a bit to the east of Cruck House there is a Saint Helen's House28 there. And you described it as "meeting with planners, meeting with sanitary29 services, taking levels on-site 1,400 pounds." Underneath your signature you30 have the job description of 261, which we know to be Coolamber. So is thisPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1311 invoice for land solely to do with Coolamber or would it be an amalgamation of2 some work done on the pipe?3 A. That was for the total work done on -- as far as I know that superseded all of4 the other invoices and it would have included for some work on the Pentagon5 pipeline at the river, I think, a little bit, 1400. As I say, I think that6 was late when I was coming to an agreement and it wasn't paid until August 19907 and John Caldwell --8 Q. 608 Yes, there's some handwriting at the bottom. It's dated the "21st of August9 1990, agreed pay 700 in full and final settlement of all sums due by Southfield10 and in --11 A. "Respect of site."12 Q. 609 So you can see Mr. Caldwell's signature to the left and your signature to the13 right and it's dated.14 A. Yeah.15 Q. 610 It superseded all the previous invoices, so on your bill of 1,400 you and16 Mr. Caldwell liaised in August of 1990 and you agreed a full and final figure.17 A. On three projects on that day I can remember. That was only a small one.18 There was a big one in Baldoyle. There was agreement reached on three jobs19 and they were all cut by half.20 Q. 611 In relation to this 700 was this exclusively for the Coolamber lands?21 A. That was exclusively for the Coolamber lands, yes.22 Q. 612 There are some more diary entries, but for the purpose of the record of the23 Tribunal I will just read the page numbers. 713 and 714 in relation to work24 done. But at page 1124 there's an amalgamated invoice which you send to James25 Kennedy in June of 1990, as you were saying, you were initially billing26 Southfield for the attention of John Caldwell and you were getting no27 satisfaction. Page 1124, please? So by June of 1990 you were obviously28 frustrated and you billed Mr. Kennedy directly?29 A. He was agents on all of those jobs. So there was a large amount outstanding30 and there probably wasn't any work being done at that stage.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1321 Q. 613 And you were obviously getting no recompense from Binchys who were receiving2 the various invoices to this point.3 A. Yeah.4 Q. 614 You bill him for a variety of matters including lands, housing at Finnstown and5 you've various job numbers in there, 261 and 315, there's work on the Arcade,6 Baldoyle and other matters.78 On the next page of the letter at page 1125. I just want to read this into9 the record, "We wish to point out that we provided you with an excellent10 service in the extremely short time you set to allow these projects to be11 completed. And you stated every week that you were very satisfied with the12 services we were providing. We note that when you refused to pay any further13 invoices in 1988 for a period, you were forced to get another architect, Scott14 and McNeill, to design another house type at Westin Park, which was basically15 the same house we designed with a different front elevation. We were still16 employed by you to carry out the structural design and Scott and McNeill.1718 Part of this outstanding amount is due on invoices which date back as far as19 February of 1988. All of these invoices must now be cleared up immediately.20 Written confirmation of most jobs you want done quickly is still never21 received.2223 We confirm that most of these invoices have been issued to two or three24 companies. Despite the fact that we were not instructed in writing in the25 first case, we still carried on substantial projects for you at absolutely26 minimum level of fees if they had been received immediately.2728 I would therefore like to take this opportunity to request payments" and so on.2930 It's just essentially the middle paragraphs there. Firstly, you state "writtenPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1331 confirmation of most jobs you want done quickly is still never received." Is2 that because Mr. Kennedy directly instructed you, you got on with the work and3 you didn't necessarily receive something officially from the company, directors4 of the company or Mr. Kennedy or Mr. Caldwell or whoever in writing?5 A. Yeah, if I didn't proceed he would just go and get somebody else to do the job.6 Q. 615 If he gave you a job today you would literally drop most matters as he was7 paying you 50% of your fees or meant to be.8 A. And then it got to the stage when I refused to do work and then he went and got9 somebody else because he didn't want to pay me at that time.10 Q. 616 And you state "we confirm that most of these invoices have been issued to two11 or three companies despite the fact that we were not instructed in writing in12 the first case." That's essentially the same thing.13 A. Yeah.14 Q. 617 That albeit you were invoicing various companies and that. You never had15 anything in writing from any of --16 A. Not knowing which of them would pay me.17 Q. 618 Yes. In relation to not being paid and that. You did actually ultimately18 contact solicitors. And you did a memorandum in relation to Mr. Kennedy,19 which is at page 654, which I just want to read into the record. "Re Mr. James20 Kennedy.2122 1. Ordered work to be done today or else got someone else to do it.2324 2. Instructed no letters to be sent except where they suited him legally.25 Everything done on verbal instructions which apparently as it can now be seen26 suited him as he will say in court that it was said in another way and he will27 get someone to agree that he said it his way, especially Mrs. Antoinette28 Kennedy (Mrs. Antoinette Casey) who was, and presumably will continue to be29 managing director of his companies.30Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

1341 3. Always asking for another original copy of everything as he claims it was2 lost. Mr. Kennedy has a safe in the basement of 4 - 5 Westmoreland Street3 with copies every letter ever sent to any of his companies. Letters can always4 be produced even when he claims they are lost unless it suits him not to keep5 them.67 4. Regarding the Isle of Man companies. He always claims he owns them but8 he is not a director of any of them. He gets himself officially appointed as9 their agent with the authority to appoint the professional staff they require10 to get work carried out in Ireland. Mr. Bullock has shown me letters of11 appointment written by Mr. James Kennedy with his solicitors and now on the12 company files in Douglas.1314 5. James Kennedy tried to get me to give him 1,000 in cash when we were all15 going to the Canaries on our holidays. He wanted my company to invoice his16 company for an extra 1,000 for a survey over the agreed verbal fee. The money17 was not given to him by me as when the tax reasons were pointed to him after18 trying to persuade me further he eventually gave up."1920 That speaks for itself. That's a document you wrote down for your solicitors.21 So I take it that that was what you felt about Mr. Kennedy at that time.2223 JUDGE FAHERTY: Sorry, Miss Coghlan, do we have a date for that?2425 MS. COGHLAN: It's subsequent to Mr. Galbraith not being paid, which is in and26 around, between 1990 and 1991. I don't have an actual accurate date for it.2728 JUDGE FAHERTY: I see.2930 MS. COGHLAN: And so essentially this is backing up what you had said even inPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1351 your letter to Mr. Kennedy, that he hadn't given you written instructions, the2 companies hadn't given you written instructions. You carried out quite an3 amount of work, you referred to a Mr. Bullock as well in this attendance. You4 knew Mr. Bullock from various of the land transactions?5 A. Yeah.6 Q. 619 And had you met Mr. Bullock in the Isle of Man?7 A. Yes, I had met him on a number of occasions.8 Q. 620 What did you understand his role to be?9 A. That he was a director of the companies in the Isle of Man.10 Q. 621 And did you believe him to be an owner of any of the lands or was he just a man11 who was carrying out instructions like yourself for Mr. Kennedy?12 A. That I wasn't sure of at the time.13 Q. 622 I see. In any event, the memo speaks for itself. It's something you14 reflected in writing and you passed it on to your solicitors at the time. And15 I have only just a few tiny matters.1617 At page 1249. The 21st of August 1990. You still haven't been paid and you18 now fax Mr. John Caldwell in Binchys and you refer to your meeting of today.19 "Please find a copy of the letter to be submitted to Dublin County Council20 Planning Department tomorrow with the documents that you handed to us today."21 I think that backs up the point that maybe Mr. Caldwell was handing documents22 to you that you were passing on to the County Council and he was dealing with23 you in relation to planning matters.2425 And you would have had a meeting with Mr. Caldwell. Would he have outlined to26 you exactly what to do or can you recall anything about the meeting in August27 of 1990?28 A. Well as I say, that was a meeting which I requested. That meeting was in his29 office and we went through all of the money on those three outstanding and he30 basically cut them all in half on the understanding that he would payPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1361 immediately and that I would hand over copies of all my file drawings.2 Q. 623 Was it around this time that he did ask you for your original files back?3 A. Yes. But the ones for Coolamber had been done way before that. This was4 basically years later when there was still a lot outstanding and he just wanted5 to get copies of all of the correspondence.6 Q. 624 Yes. He says as you say "With regard to the fees outstanding from our mutual7 clients". Who were you referring to when you said "our mutual clients?"8 A. There was a number of them. Bovale, Southfield and Agrippa were the three9 there that he sorted on that day.10 Q. 625 These are the matters you say which were cut in half.11 A. Yeah.12 Q. 626 By agreement. On page 1250 we have one letter from Mr. Caldwell to you where13 he is asking for copies of your entire file, it's dated the 22nd of August,14 "Dear David, thank you for your fax dated 21st of August 1990. I have put on15 hand the payments of the sums referred to in your memo. In relation to16 Seapark, Baldoyle, we agreed that you would hand over copies of your entire17 files and all drawings thereon. As soon as you have the whole file ready for18 collection, please contact me so that the matter can be finalised."1920 That was in relation to Baldoyle. As you say, you had already handed over the21 files in relation to Coolamber, all the originals.22 A. Yeah.23 Q. 627 And we see then in relation to page 2513. A cheque for 700 and a letter from24 Mr. Caldwell, who is a director of Southfield, to you dated 24th of August25 "Please find enclosed cheque for 700, being your agreed fees herein, in full26 and final settlement of all sums due of all works done by you in respect of the27 Tyrell lands. Please acknowledge receipt of same." And that cheque you see28 there on the 22nd of August 1990.29 A. Yeah.30 Q. 628 Yes. That essentially is the end of any of the documentations we have of youPremier Captioning & Realtime Limitedwww.pcr.ie Day 564

1371 involved in the Coolamber lands. But, as I say, it's probably largely due to2 the fact that the file is -- we don't have a complete file in relation to it?3 A. That was all the work I did on the Coolamber lands. I then moved back on to4 the other developments.5 Q. 629 Thank you very much, Mr. Galbraith?6 A. You're welcome.78 CHAIRMAN: Mr. Galbraith. Mr. Miley, do you want to ask anything?910 MR. MILEY: No, thank you very much, Judge.1112 CHAIRMAN: Mr. Galbraith, can you explain how you came to meet Mr. Bullock in13 the Isle of Man?14 A. Well I would have, when I was told by, I don't remember, either Jim Kennedy or15 either John Caldwell that the, a lot of the projects, especially Baldoyle, I16 think, was my initial one, that they would be done for an Isle of Man company.17 I think it was Jim Kennedy, he was acting for an agent for Isle of Man18 companies, and he had the right to appoint people and that Mr. Bullock in the19 Isle of Man, who was an accountant, was running the, looking after the Isle of20 Man companies, was a director. And I went over to the Isle of Man and had21 numerous meetings with Martin Bullock.2223 CHAIRMAN: The only way you would get instructions from Jim Kennedy. So there24 would have been no need in the ordinary way for you to physically go to the25 Isle of Man if you were getting -- what additional instructions or discussions26 would you have had in the Isle of Man with Mr. Bullock that couldn't have been27 dealt with in Dublin?28 A. I don't remember offhand, exact details, but I could have been just checking29 out that the companies were valid Isle of Man companies. Because I hadn't30 done work for any companies in the Isle of Man.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

13812 CHAIRMAN: Were you requested to go over or did you go over on your own?3 A. I went over on my own as far as I can recollect.45 CHAIRMAN: But was it your own decision to go over or were you requested to go6 over?7 A. I think it was my own decision to go over.89 CHAIRMAN: Was this to checkout to see whether these companies existed?10 A. Yeah, yeah, basically to meet Mr. Bullock and to, because I like to work on a11 one-to-one basis. I don't like talking to people on the telephone. Because12 I was discussing things with him over the telephone.1314 CHAIRMAN: And did you get instructions from Mr. Bullock?15 A. Yes, I did get instructions from Mr. Bullock.1617 CHAIRMAN: Even though he, this was in the Isle of Man now?18 A. Uh-huh, I had been getting instructions posted to me because when Jim Kennedy19 would give me instruction I would insist on getting confirmation in writing on20 those jobs, because they were big projects. I would insist on getting an21 instruction in writing from him.2223 CHAIRMAN: But did you get any different or additional or extra instructions24 when you'd meet Mr. Bullock?25 A. Um --2627 CHAIRMAN: Or was he just merely repeating what Mr. Kennedy was telling you?28 A. I think he was mainly repeating what Mr. Kennedy had told me.2930 CHAIRMAN: All right.Premier Captioning & Realtime Limitedwww.pcr.ie Day 564

13912 JUDGE FAHERTY: You said you knew Mr. Lawlor as a public representative; is3 that correct? Mr. Galbraith.4 A. Yes.56 JUDGE FAHERTY: You've also said on occasions that Mr. Caldwell and7 Mr. Kennedy might have dictated letters on your paper or that you would have8 sent out.9 A. Yeah, they would. Well John Caldwell probably would have faxed me letters and10 just asked me that there was legal implications in the letters from the11 planning department and they needed a reply. So he would give me a draft12 reply and ask me then to type it out, and we would go through it and check it.1314 JUDGE FAHERTY: Did Mr. Lawlor ever dictate letters for you?15 A. No, no I never did any letters for Mr. Lawlor.1617 CHAIRMAN: Thank you very much, Mr. Galbraith.18 A. You're welcome.1920 CHAIRMAN: Half ten tomorrow.2122 THE TRIBUNAL THEN ADJOURNED UNTIL THE FOLLOWING DAY,23 FRIDAY 21ST JANUARY 2005, AT 10:30 A.M.:24252627282930Premier Captioning & Realtime Limitedwww.pcr.ie Day 564