Ashbourne Holdings Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 21 March 2001
• Neutral Citation: [2001] IEHC 43
• Court: High Court
• Docket Number: 456 JR/1997
• Date: 21 March 2001

[2001] IEHC 43

THE HIGH COURT

456 JR/1997

ASHBOURNE HOLDINGS LTD v. BORD PLEANALA & CORK CO COUNCIL

JUDICIAL REVIEW

BETWEEN

ASHBOURNE HOLDINGS LIMITED

APPLICANT

AND

AN BORD PLEANALA

FIRST NAMED RESPONDENT

AND

THE COUNTY COUNCIL OF THE COUNTY OF CORK

SECOND NAMED RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S15

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S15(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S15(2)

GALLIGAN IRISH PLANNING LAW & PROCEDURE (1997) 242–243

MCD MANAGEMENT V KILDARE CO COUNCIL 1995 2 ILRM

PYX GRANITE COMPANY LIMITED V MINISTER OF HOUSING 1958 1 QB 554

NEWBURY DISTRICT COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 1981 AC 578

DUNNE V DUBLIN CO COUNCIL 1974 IR 45

KILLINEY & BALLYBRACK RESIDENTS ASSOCIATION V MINISTER FOR LOCAL GOVT (NO 2) 1978 ILRM 78

HALL V SHOREHAM BY SEA 1964 AER 1

MCDONAGH V GALWAY CORPORATION 1995 1 IR 191

SCANNELL ENVIRONMENTAL & PLANNING LAW IN IRELAND (1995) 198

R V WESTMINISTER CITY COUNCIL 1990 1 QB 87

CITY OF BRADFORD METROPOLITAN COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 1986 JPL 598

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(a)

FPH PROPERTIES, STATE V BORD PLEANALA 1987 IR 698

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KENNY, STATE V BORD PLEANALA UNREP MCCARTHY 20.12.1994 (EX TEMPORE)

THRASYVOLOU V SECRETARY FOR THE ENVIRONMENT 1991 AER 65

SCANNELL ENVIRONMENTAL & PLANNING LAW IN IRELAND (1995) 165

KEANE V BORD PLEANALA 1998 2 ILRM 241

FRASCATI ESTATES LTD V WALKER 1975 IR 177

BOLAND V BORD PLEANALA 1996 3 IR 435

KINGSTON-UPON-THAMES ROYAL LONDON BOROUGH COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 1973 1 WLR 154

BEARSDEN TOWN COUNCIL V GLASGOW CORPORATION 1971 SC 274

KENT COUNTY COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 1977 EGD 842

TESCO STORES LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1995 2 AER 636

O'REILLY V O'SULLIVAN UNREP LAFFOY 25.7.1996 1996/14/4427

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S47

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S48

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S22

GRANGE DEVELOPMENTS V DUBLIN CO COUNCIL 1989 ILRM 145

EIGHTY FIVE DEVELOPMENTS LTD V DUBLIN CO COUNCIL 1993 2 IR 243

HOBURN HOMES V BORD PLEANALA 1993 ILRM 368

MCDONAGH V GALWAY CORPORATION 1995 1 IR 202

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Public right of access

Planning decision - Whether conditions imposed relating to public access unreasonable - Local Government (Planning and Development) Act, 1976 section 26 - Local Government (Planning and Development) Act, 1990 section 22 (1997/456JR - Kearns J - 21/3/01) - [2002] 1 ILRM 321

Ashbourne Holdings Ltd v An Bord Pleanála

The applicant had been granted planning permission in respect of a golf development. The first named respondent had granted permission subject to a number of conditions, some of which related to rights of public access. The applicant initiated judicial review proceedings challenging the conditions imposed relating to public access. Kearns J was satisfied that the conditions imposed were ultra vires and the access provisions were thereby void.

Mr. Justice Kearns

1 The Old Head of Kinsale is perhaps the most conspicuous headland along its particular section of coastline in County Cork. It incorporates a functioning lighthouse at its southern tip and a walled roadway thereto, the property of the Commissioners of Irish Lights. There are also the remains of an old lighthouse at a site further northeast on the headland. There remains on the neck of the northern isthmus the ruins of Downmacpatrick Castle (also known as de Courcey castle) which was a stronghold during the Anglo-Norman settlement of Ireland. It lies just outside the entrance gates to the Applicants property.

2 The entire headland is subject to a preservation order. The total area of the headland south of de Courcey castle is 90 hectares. The golf course development as now constructed comprises 60 hectares. At all times material hereto, the headland was in private ownership and while hundreds of visitors, particularly at weekends and bank holidays, used walk the headland, mostly via the walled roadway to the lighthouse, they did so as trespassers, undoubtedly encouraged by the minimal measures taken by previous owners to exclude walkers and ramblers.

3 Not the least part of Ireland's economic and tourist development in recent times has been the expansion of golfing facilities in Ireland with the construction of new courses of the highest quality and design.

4 In 1992 the Applicants acquired the lands comprised in the Old Head of Kinsale with a view to the construction and development of a golf course on the site. The lands are comprised in Folio 5759 County Cork which said folio refers in its wording to the de Courcey castle as follows:-

"There is excepted out of the said lands the property in the ancient monument known as Downmacpatrick Castle."

5 While the maps accompanying the planning permission application showed the castle as being within the limits of the lands owned by the Applicants, the wording of the Folio clearly suggests otherwise.

6 No planning permission for the golf course as such was required in 1992, it being an exempted development under the 1977 Local Government (Planning and Development) Regulations. Permission was, of course, required for the development of the clubhouse and ancillary facilities.

7 It is clear that, in approaching the project, the Applicants were very conscious of thede facto access enjoyed by the public to the Old Head of Kinsale and of the need to secure local support, or at least to neutralise local opposition, if the golf development was to be successful.

8 The Applicants commissioned an Environmental Report from RPS, an environmental consultancy in Cork, in July 1992. This Report noted the least opposition to the project from the immediately adjoining farmers. The population of Kinsale itself was more or less evenly divided, whereas visitors from further afield were strongly against the development, the latter group perhaps believing that the public could access the headland as of right.

9 The development proposal was presented to invited interest groups and the Report purported to address concerns about public access to the headland. Section 2.15 of the Report provided:-

"The public would be provided with access to the entire existing roadway to the lighthouse and the area marginal to the neck and the northern rim of the headland to the old lighthouse. A gravel path and picnic areas would also be provided in the neck area between de Courcey castle and the old lighthouse compound. Access to the cliff paths and cliff edges for interest groups would be made available. Access to the restaurant and bar facilities would also be provided to the public".

10 This Report was submitted with the planning application which was granted on the 30th of September 1992, subject to eight conditions, including a condition providing for public access in accordance with paragraph 2.15 from page 8 of the Environmental Report.

11 This decision was appealed by An Taisce to the first named Respondent. In the course of this appeal procedure, it was accepted on all sides that no public rights of way of any sort existed over the Old Head of Kinsale. On the 6th of May 1993, the first named Respondent granted permission for the golf clubhouse development and ancillary equipment building together with necessary site works, carpark, roadways and drainage on a portion of the said lands in accordance with plans lodged with the second named Respondent. There were a number of conditions attaching to the said permission including, inter alia:-

"2(a)Provision shall be made for access by the public in accordance with paragraph 2.15 on page 8 of the environmental report."

12 9. A survey shall be carried out of the ruins of de Courcey castle by a structural engineer and a qualified archaeologist. The results of this survey, together with proposals to:-

(a) Safeguard public safety and

13 (b)Safeguard the ruins of the castle shall be submitted to the Planning Authority.

14 A scheme of works in relation to (a) and (b) shall be carried out by the developer, subject to the agreement of the Planning Authority."

15 Because the clubhouse and a shed were constructed other than in accordance with the permission granted, warning notices under section 26 of the Local Government (Planning and Development) Act,1976were served on the Applicant in February 1997. In March 1997 the Applicant's Solicitors wrote to the second named Respondent admitting that a maintenance shed had been erected at a slightly different location than indicated in the plans and that some changes had taken place to the layout of the clubhouse, as a result of which an application for retention was made on the 7th of April 1997 in respect of the golf clubhouse, carpark and access road, retention of the machinery (maintenance) shed and the retention and modification of the entrance gates at the Old Head.

16 In the context of this retention application, the Applicants Architect, Mr Austin Dunphy, wrote on the 27th day of May 1997 to the second named Respondent in the following terms:-

"The development of the golf course has been extremely expensive but it is, at long last, nearing completion. It is important that all persons playing golf on the course, and indeed those visiting the Old Head, be permitted to do so in peace and tranquility, and without the risks of causing or suffering injury. Orderly access by the public to the Old Head will be permitted to continue, indeed in the fullness...