Dennehy v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 19 May 2020
• Neutral Citation: [2020] IEHC 239
• Docket Number: [2018 No. 849 JR]
• Court: High Court
• Date: 19 May 2020

IN THE MATTER OF SECTIONS 5 AND 10 OF THE PLANNING AND DEVELOPMENT ACT, 2000 AS SUBSTITUTED BY THE PLANNING AND DEVELOPMENT (AMENDMENT) ACT, 2002 AND THE PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT, 2006

BETWEEN

CORNELIUS A. DENNEHY

AND

SUZANNE DENNEHY

APPLICANTS

AND

AN BORD PLEANÁLA, MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

DONAL COFFEY

NOTICE PARTY

[2020] IEHC 239

Meenan J.

[2018 No. 849 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Exempted development – Rationality – Applicants seeking judicial review – Whether the respondent’s decision was unreasonable and irrational

Facts: The applicants, Mr and Ms Dennehy, placed a gate on their land. The purpose of the gate was to prevent members of the public having access to a lakeshore where a local boat club had its premises. The placing of the gate in question led to two Circuit Court actions and two decisions of the first respondent, An Bord Pleanála (the Board), which were the subject of judicial review proceedings. It was the second decision of the Board that was the subject of these judicial review proceedings. The placing of the gate led to the applicants and their family being subjected to violence and intimidation, and to their property being wantonly damaged. In reaching its decision, the Board decided that the laneway had been habitually open or used by the public during the preceding ten years as a means of access to the lakeshore of Lough Leane; thus, the gate was not an “exempted development” for the purposes of planning legislation so the applicants were required to obtain planning permission (or retention) for it. The applicants identified the issues to be determined by the High Court as follows: (1) whether the Board’s decision of 30 August 2018 was unreasonable and irrational; and (2) whether the Board had correctly interpreted Article 9(1)(a)(x) of the Planning and Development Regulations 2001.

Held by Meenan J that the Board did not correctly consider the legal import of the decision of the Circuit Court. Meenan J believed this error arose out of the view taken by the Board that, whereas the Circuit Court was concerned with the issue of a right of way, the Board was not. Meenan J noted that, on its findings of fact, the Circuit Court was satisfied that there was no right of way over the laneway; in so finding, this led to the conclusion that the laneway was not “habitually open to or used by the pubic... as a means of access to any... lakeshore”. Meenan J held that the Board could only make its findings as to the user of the laneway by the public by ignoring the facts, as found by the Circuit Court, that such persons who were doing so without the consent of the applicants were trespassers. Meenan J could not see that such a finding by the Board would be legally permissible. Meenan J held that it could not be the case that the Board was permitted to take a decision to the effect that the gate was not an exempted development on the basis of a public user which was unlawful. Meenan J was satisfied that the Board erred in law in failing to correctly consider the Circuit Court decision and thereby made its resultant decision “unreasonable or irrational”.

Meenan J held that the applicants were entitled to an order of certiorari quashing the decision of the Board of 30 August 2018.

Order granted.

JUDGMENT of Mr. Justice Meenan delivered on the 19th day of May, 2020

Introduction

1 The central issue in these judicial review proceedings is whether a gate placed by the applicants on their land is or is not an “exempted development” for the purposes of planning legislation. This may seem an easy issue to resolve but when the purpose of the gate is to prevent members of the public having access to a lakeshore where a local boat club has its premises, it quickly becomes clear that matters are somewhat more complex. The placing of the gate in question has led to two Circuit Court actions and two decisions of the first named respondent (the Board), both of which have been the subject of judicial review proceedings. It is the second decision of the Board that is the subject of these proceedings. More importantly, the placing of the gate has led to the applicants and their family being subjected to violence and intimidation, and to their property being wantonly damaged.

2 Before considering the issues that arise, it is necessary to firstly consider the locus of the gate in question and, secondly, the various legal proceedings that have ensued.

The Gate

3 The following paragraphs should be read in conjunction with the map appended to this judgment. (Appendix 1)

4 The applicants reside at Fossa, Killarney, County Kerry with three of their children. The applicants are the owners of lands comprised in folios 4433F, 34792F and 15202F of the Register of Ownership of Freehold Land of Kerry. The applicants’ land and properties are clearly marked on the map.

5 Lough Leane lies to the south and is marked on the map. On the north is the N72 national secondary road (Killarney to Killorglin), also marked on the map. As one goes from west to east on the map, at “Murphy house” there is a turn to the right where the laneway commences. The laneway goes south past a number of houses and a hotel. The laneway then turns west past two houses and reaches the boundary of the applicants’ property. At this point, the laneway proceeds in a south-westerly direction. At a point marked X on the map, the laneway turns south to the lakeshore and ends at a point Y.

6 The gate, the subject of these proceedings, was erected by the applicants on their property at point A on the map. Another gate was erected at point B. It is now necessary to set out the events that led to the erection of the gate at point A.

Background to the erection of the gate

7 To the west of the applicants’ land lies those of Sir Maurice O'Connell (O'Connell). O'Connell enjoys an undisputed right of way between the points X and Y marked on the map. For many years, O'Connell and his predecessors in title had a private boathouse on his lands on the shore of Lough Leane, which hosted a boat/rowing club of which the first named applicant was a member (the Fossa Rowing Club). The Fossa Rowing Club trained out of the O'Connell boathouse. Members of the club entered O'Connell's lands directly from the N72 to the north. During this time, the first named applicant and his late father actively assisted the activities of the Fossa Rowing Club.

8 From time to time during those years, members of the Fossa Rowing Club would request access to the boathouse over the applicants’ lands. Permission was generally granted. Further, the applicants would also allow people to park their cars on their property during the summer when the Fossa Rowing Club was operating.

9 In 1989, O'Connell's late father, Sir Morgan O'Connell, died and O'Connell no longer wished to facilitate the activities of the Fossa Rowing Club as he had done. Three members of the Fossa Rowing Club approached the first named applicant and asked for permission to walk over his land from points A to Y on the map. This was agreed. Unfortunately, this was the start of the trouble.

10 The first named applicant has deposed in his grounding affidavit that it was not long before members of the Fossa Rowing Club exceeded the permission that had been granted and began to trespass on the applicants’ lands. From about 1993, a small number of members became more aggressive, even bringing machinery onto the applicants’ lands and causing damage. Some members of the Fossa Rowing Cub also asserted that they had a right of access to the lakeshore via the laneway from the applicants’ lands. Such a right was resisted by the applicants, but to little avail.

11 Matters escalated to such an extent that, in or about May, 2010, the applicants installed closed circuit television and two gates with signage to the effect that this was private land. The gate (at point A on the map), which is the subject of these proceedings, was placed to prevent vehicular access and to restrict pedestrian access to those who would acknowledge that access was with the permission of the applicants. This gate was upgraded in September, 2015. The other gate was placed at point B on the map. Whilst both gates were kept locked, the applicants did allow members of the Fossa Rowing Club to enter their lands by a side access so that they could continue to access the lake in order to train for local competitions.

12 From about 2012, matters took a more sinister turn. According to the applicants, the number of incursions onto their property became not only more blatant but also more confrontational. On a number of occasions An Garda Síochána had to be called to deal with persons who insisted on trespassing on the applicants’ lands and who refused to desist from doing so. In April, 2012, the first named applicant, having been personally assaulted, closed all pedestrian access.

13 Public events were organised seeking to establish the existence of a public right of way over the laneway, not only by the Fossa Rowing Club but also by other organisations such as the “Fossa Way Committee” and the “Men's Shed”. These events were reported in the local newspaper, “The Kerryman”, and the first named applicant has exhibited these articles in his grounding affidavit. Accompanying these articles are photographs which clearly show numerous people on the applicants’ side of the gate. Fixed to the gate is a sign stating clearly: “Private Property”.

14 These organised public events cannot have been anything other than frightening and intimidating for the applicants and their family. However, worse events occurred in that the applicants received an anonymous written threat warning them to leave Fossa. Shots were fired over their dwelling house and their dog was shot. This was all in addition...