13th October, 2015
To:

An Cathaoirleach and Each Member of Kilkenny County Council

Re:

Kilkenny Central Access Scheme
Update for Elected Members, October 2015

A Chara,
Works are progressing on the Kilkenny Central Access Scheme Bridge contract. The in-river
works associated with the bridge were completed on the 11th September, 2015. In the period
since, 4 no. cross-beams and 70 no. longitudinal beams have been installed.
In the coming weeks, works will progress on the installation of services and service ducts
across the bridge together with the construction of the bridge deck support beams and the
bridge deck itself. These works will continue until the end of 2015. Thereafter the footpath
platform, balustrades together with the various finishes to the bridge will be undertaken. The
expected date of completion for the Bridge is August 2016.
Set out below, for the information of Elected Members, please find summary points
pertaining to particular aspects of the Scheme;
1.

Phase 2 Contract (Castlecomer Rd. to Bridge and Bridge to St. Canices Place)
An e-tender notice, seeking tenders for the Phase 2 contract, will be published in
October, 2015. It is expected that a contractor will be appointed by the end of 2015
with works to commence in early 2016 and completed by Q4, 2016.
Allowing for a revised, anticipated completion date for the Bridge Contract in August
2016 it is intended to open the Scheme to traffic in the latter part of 2016. Further
updates will issue to Elected Members as matters progress.

2.

Compulsory Purchase Order
In the period since November 2014 Kilkenny County Council has concluded
negotiations in respect of the acquisition of lands from City Cinemas Ltd. (Old Mart
Site) required for the delivery of the KCAS.
An arbitration hearing is ongoing in respect of the acquisition of lands on Wolfe Tone
Street and this hearing is not expected to reconvene until Q3 2016. In the meantime, as
provided under CPO Legislation, Kilkenny County Council reserves the right to enter
onto the lands for the purpose of completing the Scheme.

 3.

No.’s 20-22 Vicar St.
Following the deconstruction of Nos. 21 and 22 Vicar St. underground archaeological
investigations were undertaken earlier this year in accordance with Ministerial Licence
provisions. Various amendments and additional investigative works were required
following on from third party submissions. The additional investigations yielded no
evidence of the Manse House (Prebendary of Tascofin).
Additional costs incurred on the Scheme associated with archaeological investigations
at Vicar St. are €343,000. The final Archaeological Report pertaining to the Vicar
Street properties is currently being drafted and will be submitted to the Department in
the coming weeks.

4.

Phase 1 Contract (KCAS Bridge)
Kilkenny County Council entered into a contract for the KCAS Bridge, on the 10th June
2014, in the sum of €4.14 million (ex VAT). The programme attached to the contract
provided for the completion of all in-river works in the period June 2014 – October
2014 inclusive. The contract programme date for completion of the Bridge was
September 2015. Completion of the in-river works, in the 22 week period June 2014 to
October 2014, was a critical path item of that programme.
Disruptive protests at the site prevented the completion of the in-river works. The
protests had a detrimental impact on the contract to the point where a Conciliator was
agreed by the contracting parties to adjudicate on the revised value of the works and the
programme required to deliver the contract. In his first determination report to the
contracting parties the Conciliator noted the following;
It is my opinion that the protestor actions, Court interventions etc. events to date have
had an impact on the project far beyond the contemplation of either party at the time of
tendering. In particular the time for completion and pricing documents are severely
impacted on. This now means that the Works should be addressed as three separate
Sections, with distinct times of completion and a revised Contract Sum being distributed
across the three Phases. The Parties have accepted that treating the three phases as
three ‘Sections’ under the Contract with separate ‘contract sums’ for each phase is a
rational approach that facilitates overall resolution of the current impasse. In essence
each Phase will have a ‘contract sum’ only subject to change in accordance with the
Contract. Both Parties have acknowledged that it may be beneficial the sub divide Phase
3 into two separate sub phases 1st May to 30th September and Oct. 1st to Completion.

As set out above, through the Conciliation process, the contract was divided into four
Phases as follows;
 Phase 1
In-River Works 2014
 Phase 2
November 2014 – May 2015
 Phase 3A In-River Works 2015
 Phase 3B November 2015 to

 The following works valuations have been agreed at this point in time
 Phase 1
€1,065,000
 Phase 2
€1,508,000
 Phase 3A to be determined (payment on account of €330,000 per month for
June/July/August 2015 with final value to be determined)
 Phase 3B to be determined
As the Conciliation Process has yet to determine the values of Phases 3A and 3B, I
cannot advise Members in respect of the outturn costs on the bridge contract but I note
that the costs will be considerably in excess of the original contract value of €4.14
million. I wish to stress that intensive discussions/negotiations are ongoing between the
contracting parties and the Conciliator with a view to resolving differences in value but,
at this point in time, there is no final determination on the contract cost.
The in-river works concluded on the 11th September, 2015. All works remaining on the
project from that date forward relate to Phase 3B.
The anticipated completion date for the Bridge is August 2016.

5.

Legal Challenges to the Scheme
My report to Elected Members dated November 2014 summarised High Court and
Supreme Court Orders seeking to restrain Kilkenny County Council from continuing
in-river works pending a High Court plenary hearing in respect of the in-river
construction methodologies. These Orders were sought on the assertion that the in-river
construction methodologies were non-compliant with the planning approval. All of the
Orders sought were refused by the respective Courts.
Notwithstanding the refusal of the above Orders, a High Court Plenary Hearing on the
in-river construction methodologies was pursued and this case was scheduled for the
14th April, 2015.
In defending this case Kilkenny County Council was seeking the following Orders from
any High Court Plenary Hearing;
 The Central Access Scheme for the City of Kilkenny, which is the subject of these
proceedings, has been carried out in compliance with the decision of An Bord
Pleanala made on the 12th day of December, 2011 under their reference 10.HA0014
and the requirements of the Planning and Development Acts 2000-2014.
 The Ossory Pedestrian Bridge, which is the subject of these proceedings, has been
carried out in compliance with the Resolution of Kilkenny County Council made
on the 22nd day of April, 2014 pursuant to Part 8 of the Planning and Development
Regulations 2001 and the requirements of the Planning and Development Acts,
2000-2014.

In the weeks and days leading to the High Court Plenary Hearing Kilkenny County
Council was contacted by the plaintiff’s legal team seeking a settlement of the case. On
the 14th April 2015 the case was settled, to include High Court Orders as set out above,

 as sought by Kilkenny County Council, including a contribution of €61,500 (incl.
VAT) towards the costs of the plaintiff’s legal team.
The contribution to the legal costs of the plaintiff was paid on foot of a
recommendation from the Council’s legal team. To pursue the precise Orders sought by
Kilkenny County Council via a High Court plenary hearing had the potential to cost
Kilkenny County Council up to €250,000 with no possibility of recovering these costs
taking account of the provisions of the Aarhus Convention.
My previous report dated October 2014 outlined legal costs to the Council of
€99,951.00. By the time the case was settled, legal costs incurred by Kilkenny County
Council amounted to €176,508.02 (excluding the €61,500 settlement contribution).

6.

In-River Works and Ecology
The ‘stone before steel’ in-river construction methodology used in 2014 is compliant
the An Bord Pleanala consent for the Kilkenny Central Access Scheme. This has been
confirmed by way of High Court Orders. Similarly the ‘steel before stone’ in-river
construction methodology used in 2015 is compliant with the An Bord Pleanala
consent.
Furthermore, in addition to the High Court Orders, An Bord Pleanala, following a
Section 146 submission by Kilkenny County Council in November 2014, confirmed
that no amendment was necessary to the existing consent in order to facilitate the
operation of the decision given that the mitigation measures, to include in-river
construction methodologies (both ‘stone before steel’ and ‘steel before stone’), are
expressly stated.
While both construction methodologies are compliant with the provisions of the An
Bord Pleanala approval the ‘steel before stone’ option was chosen in 2015 so as to
minimise the risk of a repeat of the events of Summer 2014.
In terms of the ecological status of the River Nore as a result of the works I can confirm
that, further to an ecological report commissioned by Kilkenny County Council in
November 2014, Q4 Ecological Status (Good Ecological Status) prevails upstream and
downstream of the works site. An area at the immediate site of the works had been
denuded of natural substratum but, by November 2014, was being recolonised by
insects and other macroivertebrates. Furthermore the November 2014 Ecological
Report outlines that any silt generated by the works had only a temporary impact on
this section of the River Nore, a section of the River that had already been heavily
modified and which does not support any protected habitats or species.

 7.

Overall Scheme Financials and Value for Money
In the period to the end of 2011 (An Bord Pleanala Approval) a total of €2.1 million
had been expended on the Kilkenny Central Access Scheme (land acquisition at Dean
Street etc., preliminary design, EIS preparation, preliminary site investigations).
Completion of Phase 1 (Castlecomer Road to St. Canice’s Place) from 2012 onwards
was estimated at €10.7 million.
Additional costs, as set out earlier in this report, have been and are being incurred in
respect of the Scheme. Final determinations are awaited in respect of some of these
costs. At this point in time, based on all the information to hand, the overall cost, since
inception, of the Kilkenny Central Access Scheme may be in the order of €16.7 million.
Section 5.2 of the EIS identifies a Benefit to Cost Ration of 7.16 for the Scheme. This
represented a very strong economic rate of return on investment. By way of comparison
the EIS prepared for the Northern Ring Road Extension outlined a Benefit to Cost ratio
of 3.6 for that Scheme, which, while also a strong rate of return on investment, is less
than the rate of return for the KCAS. Clearly additional costs associated with the
Kilkenny Central Access Scheme have the impact of reducing the Cost to Benefit
Ratio. Nonetheless at a current Benefit to Cost Ratio of about 5.0 there still exists a
very strong economic rate of return on investment.
In terms of funding, the Scheme recorded a credit balance of €3.2 million at the end of
2014 having allocated development contributions (€7.6 million), Government Grants
(€0.8 million) and a revenue contribution of €0.2 million. The costs to complete the
Scheme will be funded by way of additional development contributions (€2.5 million),
future revenue contributions (€2.8 million) with a loan facility funding the balance
which is currently estimated at €2.7 million.

--------------------------Simon Walton,
A/Director of Services