High Court of Ireland Decisions

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:-

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 the de 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:-

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 :-

12. 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, 1976 were 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.

13. 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:-

14. On the 5th day of June 1997, a permission for the retention of the clubhouse and ancillary facilities was granted by the second named Respondent, subject to eleven conditions. Those conditions which related to public access, charges for access and proposals in respect of de Courcey castle (conditions 1,2,3,4 and 8) were the subject matter of an appeal brought by the Applicant under section 15 of the 1992 Local Government (Planning and Development) Act. The letter of appeal was sent to the first named Respondent on the 3rd day of July 1997 by Mr Kiaran O’Malley, the well known planning consultant.

15. While stressing in his letter that the Applicant was not averse to public access to certain areas of the Old Head, he stressed that his clients were agreeable to do so as a matter of choice and on payment of a reasonable fee to cover insurance or incidental expenses. It was not, he said, an acknowledgement of a public right of way as none existed. He contended that that the condition providing for general public access “southwards to the coast” was “inadmissible”. Access to the cliff paths and cliff edges for interest groups amounted to an “expropriation of private rights in land” and was thus ultra vires the Planning Authority’s powers as well as being unconstitutional and bad for reasons of remoteness and inadmissibility. He further pointed out there was no objective in the 1996 Cork Development Plan to provide public access to the Old Head of Kinsale.

16. Thereafter, Mr. Ben Cranwell, Senior Planning Inspector, conducted a site inspection on the 1st of October, 1997 for the purpose of preparing a report for the first named Respondent. His conclusion and recommendation following site inspection was that condition 1 (providing for general public access) and condition 3 (providing for charges) be omitted and that conditions 2 (providing for provision of a gravel path and picnic area) and 8 (providing for proposals in relation to the Castle) be retained. “Special interest groups” could, he felt, be given access by agreement with the operations of the club.

17. At page six of his report Mr. Cranwell stated:-

18. Shortly afterwards he continued:-

19. In relation to the charging provisions in conditions 3 and 4, he stated at page 7:-

20. Mr. Cranwell felt it was reasonable to retain the condition in relation to the provision of a gravel path and picnic area between the castle and the old lighthouse, although this pathway would need to come back on to the road alignment in order to avoid the seventh hole of the golf course which had been placed outside the line of the road. He also felt that the provision of a picnic area at the neck was a desirable public amenity and from this area it would also be possible to overlook the bird sanctuary to the west.

21. He also felt it was reasonable to retain the condition in relation to the preservation of de Courcey castle, although he cautioned :-

22. It is perhaps worth noting that the golf course had opened in June, 1997, so that on the occasion of Mr Cranwell’s site inspection in October, 1997, he was ideally placed to assess the matters upon which he made his findings and report.

23. On the 31st of October, 1997 the first named Respondent, despite the Inspector's recommendations, determined the appeal by directing Cork County Council to:-

24. It seems clear that the word “rim” was intended where the word “ruin”appears at Condition 1 (1).

25. The present Judicial Review proceedings seek an Order of Certiorari quashing and setting aside the decision of the first named Respondent given on the 31st day of October, 1997, whereby and in as much as it imposed conditions 1, 2, 3 and 8 above.

26. The Applicants further seek an Order of Mandamus directing the first named Respondent to remove (or to direct the second named Respondent to remove) the said conditions numbers 1, 2, 3 and 8 in their entirety and to grant the said permission with the said conditions removed.

27. The grounds upon which the Applicant relies in his seeking relief include assertions that the first named Respondent in imposing the said conditions

28. On the 23rd day of March, 2000, McCracken J. found that the Applicant had made out “substantial grounds” as required by section 82 of the Local Government (Planning and Development) Act, 1963 as amended to enable him to grant leave to the Applicant to issue Judicial Review proceedings in accordance with the Statement of Case which had been filed.

29. In his Affidavit sworn in support of the Statement of Case, Mr John O’Connor, Director of the Applicant Company, deposed that the golf complex had been developed by his company as a private commercial exercise and had involved an investment in the region of £8,000,000. He deposed that the imposition of conditions as to public access would interfere with the use of the land as a golf course and would impede the company in its efforts to obtain a return from its investment. Further, he stated, the access condition required that access be provided over a roadway which is not owned by the Applicant, but by the Commissioners for Irish Lights. The Applicant merely enjoyed a right of way over the said roadway. He further deposed that the Applicants did not in fact own de Courcey castle, which said castle was expressly excluded from the lands purchased by the wording contained in Folio number 5759 of the Register of Freeholds, County of Cork. He reiterated his intention to provide limited access to the public and to special interest groups on the footing that such access was provided as of choice and without obligation. His objection was to the imposition of conditions which would impose obligations when none were justified.

30. In his replying affidavit sworn on behalf of the second named Respondent, Mr. Brian Archer contended that the decision to grant retention permission subject to conditions was at all material times a valid and inter vires decision made by the second named Respondent. In making the decision the second named Respondent had had regard to the proper planning and development of the area. The conditions imposed reflected the undertakings given by the Applicants at the time of their application for planning permission as set out at par. 2.15 of the Environmental Report. In short, the Applicant’s application was predicated upon providing the public with access while the Applicants were well aware at all times of the importance of public access in the context of the making of the application. He pointed out that the drawing of the site map includes references to a number of picnic areas, possible archaeological sites, bird sanctuaries and new gravel pathways. Accordingly, the conditions complained of in the proceedings are merely a reflection of the assurances given to the Respondents. The condition imposing a charge for access was based on the Applicant’s own letter of 27th May, 1997. Condition number 8 was a direct response to the information submitted by the Applicant. In particular, he referred to diagrams submitted with the proposal dated 29th July, 1992, showing the castle within the property of the Applicant.

31. In a further Affidavit, Mr O’Connor deposed that while it remained the Applicant’s intention to provide public access, it was always the Applicant’s intention that such access would be at their discretion and under the Applicant’s absolute control. At no stage did the Applicant apply for or seek planning permission for public access, nor was it now reasonable to allow the public to ramble at will towards the cliff edges and to cross the golf course with obvious danger to themselves and aggravation to golfers.

32. A detailed Affidavit on behalf of the first named Respondent was sworn by Elizabeth Dolan on the 30th day of June, 2000. She addressed the entire planning history, confirming that the Environmental Report prepared by RPS addressed the issue of visitor access to the headland at par. 2.15.

33. She further deposed that at no stage prior to the Applicant’s letter of appeal to the first named Respondent in July, 1997 did the Applicant ever indicate that they did not have sufficient interest in de Courcey castle. If, as a matter of fact, the Applicant now contended that it did not own de Courcey castle, this did not invalidate the decision of the second named Respondent.

34. She further deposed that the Applicant at all times acknowledged that the terms of the 1993 permission were relevant to the application made in 1997. In exercising the powers conferred on the Board by section 15 of the Local Government (Planning and Development) Act 1992, the first named Respondent was entitled to have regard to “ the terms of any previous permission ”. In directing condition 3 to be attached, the Board considered it desirable that the Planning Authority should have a mechanism to ensure that access charges for the public should not exceed the reasonable cost of insurance and administration of entrance control.

35. In providing for public access, the Board had struck a balance between the property rights of the Applicant and the desirability for orderly access by the public to the amenities of the Old Head of Kinsale in the interests of the public good. It was her belief that the conditions attached were reasonable, proper and rational and were imposed with the objective of securing the proper planning and development of the area.

36. She further deposed that the Board did not any time contend that public rights existed over the Applicant’s property. Conditions relating to access to the land, namely, conditions numbers 1 and 3 were imposed in the context of the Applicants own proposals that orderly access would be permitted and that a reasonable charge be provided. Furthermore, the Applicant did not challenge by way of Judicial Review any of the conditions attaching to the 1993 permission. There were no material changes in circumstances between 1993 and 1997. The area of the proposed development was one and the same and the conditions sought to be impugned were not materially different from those imposed in the 1993 permission.

37. She further deposed that it was evident from the file that the Board did have adequate regard to the contents of the inspectors report and was not bound to adopt the recommendations of the inspector in their entirety.

38. A general power to attach conditions to a grant of planning permission exists by virtue of section 26(1) of the Local Government (Planning and Development) Act, 1963. Section 26(2) also enables Planning Authorities to impose a number of specific conditions which are without prejudice to the generality of the conditions referred to in Section 26(1).

39. Amongst the specific conditions are:-

40. Other specific provisions contained in Section 26 permit a Planning Authority to impose conditions requiring contribution towards any expenditure incurred by any local authority in respect of works which have facilitated the proposed development or in respect of expenditure that is proposed to be incurred in respect of such works.

41. There was some debate in these proceedings as to whether the first named Respondent was obliged to consider this appeal as though it were an application de novo and also as to the scope of the materials which the first named Respondent could consider in the context of the appeal . The matter is considered in Galligans’s “Irish Planning Law and Procedure” (1997 Ed) at p.p. 242 - 243:-

42. This passage confirms that the Board have a discretion as to how to treat the appeal and that in the instant case the first named Respondent was quite entitled, as it did, to determine the appeal as if an application to it in the first instance would not be warranted.

43. The author continues (at p. 243):-

44. Mr. Gleeson for the Applicant submitted that for these particular conditions to be valid, they must “fairly and reasonably” relate to the development permitted. He relied on statements of legal principle to that effect in Pyx Granite Company Limited -v- Minister of Housing and Local Government (1958) 1 QB 554; Newbury District Council -v- Secretary of State for the Environment (1981) AC 578.

45. Further, conditions can only be imposed in accordance with their statutory purpose and not for any ulterior purpose however well intentioned. If the matter could have been more appropriately dealt with by other means, then such conditions should not attach to an unrelated development, which in this instance was a golf clubhouse and ancillary buildings (Dunne Ltd -v- Dublin County Council (1974) IR 45). Other statutory provisions could be invoked for the creation of public rights of way, and thus it was no function of the Court to go behind or beyond such statutory provisions to uphold otherwise void conditions simply because they appear to achieve a fairer solution to the problem being considered.

46. Conditions are also invalid if the reasons advanced for them do not in fact support them. (Killiney & Ballybrack Resident Association -v- Minister for Local Government (No 2) (1978) ILRM 78). In the instant case the reason offered of “orderly development” could not be invoked where two conflicting users over the same land were authorised and the secondary or peripheral user, i.e. public access, had the capacity to frustrate and render inoperable the authorised primary user. References to “amenity” and “the planning history of the site” were similarly misconceived. While the headland was undoubtedly “an amenity”, the public had never enjoyed access there as of right, although the Respondents, it was submitted, had proceeded as though that were the position. It was “an imagined amenity” only.

47. The access and charging provisions were also void for uncertainty. The access provision was unstructured and uncertain as to times, numbers and mode of access. It was incapable of being policed or supervised. In the absence of dedicated or protected routes, the public were at large to wander across playing areas of the golf course. The charging provisions had no statutory basis in planning law, were a mere agreement to agree and void also for uncertainty.

48. It was further submitted that while admission of the public to the Old Head of Kinsale may be a matter relating to the development of the area of the planning authority, and therefore a matter to be considered by them, nevertheless this did not empower the imposition of a condition on a landowner obliging it to allow such access. What the Respondents had done amounted to a usurpation of the Applicant’s property rights which were constitutionally guaranteed. Mr Gleeson cited Hall and Company -v- Shoreham-by-Sea and Ors (1964) AER p. 1 as clear authority for the proposition that the Courts should intervene where a planning authority imposes a condition which has an ulterior motive and which unreasonably usurps, property rights.

49. In that case permission for a development had been granted subject to conditions which obliged the Applicant to construct an ancillary road over the entire frontage of the site at their own expense. The Court of Appeal found that such a condition was ultra vires and void for unreasonableness because it required the Applicants to construct a road on their own land and virtually dedicate it to the public without the Defendants being obliged to pay compensation. Willmer, L.J. stated (at p. 10):-

50. Mr. Gleeson further cited a passage from the judgment of Finlay C.J. in McDonagh & Sons -v- Galway Corporation (1995) 1 IR where he stated at p. 202:-

51. He also submitted that, even if the Environmental Report, Mr. Dunphy’s letter and various representations unambiguously conveyed to the Respondents that the Applicant was willing to submit to conditions providing for public access and for the raising of charges in respect thereof, that such behaviour could not create vires where none existed, nor could vires arise by estoppel.

52. He quoted from Scannell’s “Environmental and Planning Law in Ireland” (1995 Ed.) (at p. 198) where the author stated:-

53. In relation to de Courcey castle, it had now emerged that the Applicant’s company was not the owner of the castle or the lands upon which it stood, nor was it under the control of the Applicant. Accordingly, it did not come within the terms of Section 26(2)(a). Even if the castle was under control of the Applicant, the condition was unrelated to the Applicant’s development. Reliance was placed on The State (FPH Properties SA) -v- An Bord Pleanála (1987) IR 698, in which it was held by the Supreme Court that a condition to restore a house situated on land which was not within the application site could not be imposed in the absence of an express statutory power to do so. McCarthy J. accepted the argument of the developer’s counsel that Section 26(2)(a) represented an encroachment on property rights and consequently had to be strictly imposed.

54. Finally, it was argued that all conditions complained of were ones which “no reasonable authority would have attached” and all were “manifestly unreasonable.”

55. Firstly, there was no material before the first named Respondent which would justify overthrowing the report of Mr. Cranwell in relation to general public access and the imposition of charges. Accordingly, the Applicant had satisfied that basic requirement of O’Keeffe -v- An Bord Pleanála (1993) 1 IR.

56. No reasonable planning authority could stand over a decision whereby access for the public would be available “at all times” during “daylight hours” to certain portions of the headland. It was a recipe for chaos. Under condition 1, the public could enroach upon and traverse playing areas at times when golfers might reasonably be expected to be playing the course. This created serious risk of accidental injury from mis-hit golf shots. It further gave rise to the possibility of conflict and confrontation between groups of golfers and members of the public, each asserting their right to be there. “Daylight hours” were not defined. “Interest groups” were equally not defined. There were no restrictions on access by children or others unable to exercise due caution for their own safety. There were no dedicated routes, no provision to protect the golf course from potential damage, no provision for warnings or other measures whereby the public might be prevented from wandering into areas of danger, not only from golf balls and golf players but also from fog and high winds which were a feature of weather conditions on the Old Head.

57. Further proof of irrationality lay in the fact of the condition requiring public access whether the course was open or not. Irrespective of weather conditions, the developer would have to keep the facility open. These obligations would endure even if the golf development ceased.

58. At the end of the day, Mr. Gleeson submitted, any condition for access which would frustrate and render inoperable the primary use for which the headland had been authorised, namely, a golf course development, was by defintion”manifestly unreasonable”.

59. Mr. Collins on behalf of the first named Respondent and Mr. Bradley for the second named Respondent submitted, firstly, that any issue in relation to the conditions under appeal was now res judicata and could not therefore be revisited by the Applicant in the context of a retention application. The Applicant had not challenged by way of Judicial Review any of the conditions attached to the 1993 permission, which were essentially the same. Since that time, there had been no change in ownership, the site was one and the same and the development as carried out did not differ materially from that previously granted by the board.

60. Mr. Collins referred to the State (Kenny and Hussey)-v-An Bord Pleanala (decision of the Supreme Court, 20th December, 1994) in which McCarthy J. stated:

61. A similar conclusion could only follow from Thrasyvolou-v-Secretary of State for the Environment and Another (1991) AER 65, when Lord Bridge stated (at p.72):-

62. In relation to de Courcey castle, the Applicants had, in submitting original plans and diagrams, in stating ownership and in showing the castle within its boundaries, demonstrated a sufficiency of interest so as to permit the imposition of the condition complained of. As Scannell recognised in “ Environmental and Planning Law ” (1995) at p.165:-

63. The fact that further permissions or consents might be required before the development could lawfully commence did not preclude the planning authority from granting the permission ( Keane and Others-v-An Bord Pleanala and Others (1998) 2 ILRM 241; Frascati Estates Limited-v-Walker (1975) IR 177).

64. Turning to the access conditions, it was submitted that under Section 15(2), in considering an appeal under Section 15(1) the Board was entitled to treat as material supporting its decision the terms of any previous permission or approval considered by the Board to be relevant. Accordingly, the planning register reference S/92/2352 and condition 2(e) of same which provided for public access whether by formal right of way or other alternative was “material” which the Board was certainly entitled to consider. Also, the Board could have regard to the fact that the Applicant had not, at any time prior to 1997, sought to impugn these conditions. On the contrary, further undertakings and assurances were being offered as of May 1997 in that regard by the Applicant’s architect.

65. Furthermore there could be no doubt but that a planning authority could impose a condition on the grant of planning permission to provide for a contribution and to provide that such contribution be agreed at a later stage between the planning authority and the person to whom permission or approval was granted. This was clear from Boland-v-ABP and The Minister for Marine (1996) 3 IR 435, and from McNamara-v-ABP (Judgment of Barr J. on the 10th May, 1996).

66. In general terms, Mr. Collins submitted that public access may be a legitimately imposed condition of a permission to do things with private land. It could not be “manifestly unreasonable” to re- impose conditions which attached to an original permission and which had never being challenged. When Mr. Dunphy had written in May 1997, there was no suggestion in his letter that any variation of conditions would be sought. Everything which the Respondents had done had in a sense being at the invitation of the Applicants, including the condition providing for the picnic area and gravel path which had being provided for in the Applicant’s map. Mr. Collins submitted it would be quite inappropriate to avail of a retention application to vary or delete original conditions which had never being challenged.

67. Mr. Collins submitted that the wide power under the planning code to impose conditions on the grant of planning permission was subject to two restrictions only, i.e. that the condition had to be reasonably related to the development for which permission had being granted and that a condition which was so clearly unreasonable that no reasonable planning authority could have imposed it was ultra vires . ( Kingston-upon-Thames Royal London Borough Council-v-Secretary of State for the Environment (1973) 1 WLR 154).

68. Mr. Collins submitted that undertakings given by an Applicant are a material consideration to be taken into account by a planning authority and constitute a powerful basis for asserting that a condition imposed on foot of such an undertaking cannot, except in exceptional circumstances, be regarded as “manifestly unreasonable”. In Bearsden Town Council-v-Glasgow Corporation (1971) SC 274, the local planning authority was empowered by the Town and Country Planning (Scotland) Act 1947 not only to have regard to the provisions of the development plan, but also to any other material considerations. In that case the operators of an airport had sought permission to extend a runway and had undertaken, in the event of planning permission being granted, to take measures to control noise, but the undertakings were not so expressed as to be enforceable in law. In granting permission the Secretary of State intimated that he proposed to accept the undertakings. In an appeal by the objectors it was argued that by accepting them, the Secretary of State had in effect treated the undertakings as conditions of the grant of planning permission, although they were unenforceable, and had thus acted ultra vires . However, the Court found that the decision was valid, the undertakings being simply a material consideration to which the Secretary of State was entitled to have regard. In its opinion the Court stated (at p.134):-

69. Further, unless the condition imposed rendered the development unworkable, the condition was not invalid ( Kent County Council-v-Secretary of State for the Environment and Another (1977) EGD 842.)

70. In essence, therefore, Mr. Collins posed the question: Are the access and charging provision so unrelated to planning considerations that they should not have featured as conditions in the permission at all?

71. The planning obligations offered by the Applicant in the instant case did have more than a de minimis connection with the development and could be taken into account on the appeal because:

72. On the test of irrationality, the fact that there were certain dangers inherent in having a golf course over which rights of access existed did not thereby render the development inoperable. Many activities or users with an element of danger were permissible, and this was not excessively dangerous. The “golf design test” was not an appropriate criterion, because obviously any golf course owner would prefer not to have imposed on him rights of this nature. The appropriate test was the proper development of the area from a planning point of view. The Respondents had endeavoured to strike a fair balance between the interests of the public and those of the Applicant.

73. In reply, Mr. Gleeson submitted that the question of any right of public access was already a determined issue. There was no such right, and it was not a legitimate approach to arrive at a decision as though it was.

74. There could be no res judicata , because the issues were not the same nor were the conditions the same. Between 1993 and 1997 a golf course had been constructed, together with a clubhouse and ancillary facilities. The 7th hole of the course had been relocated north of the connecting road. A new Cork Development Plan had come into being in 1996. The Respondents had never taken the point that any question of res judicata existed. On the contrary they had sent an inspector to Kinsale to investigate the matter. At no point in the decision of the first named Respondent had any such position been adopted or even referred to and indeed the whole appeal process would have been pointless if a res judicata plea had been tenable.

75. The fact that the conditions had not been challenged at an earlier stage did not now convert the “irrational” into something reasonable.

76. To this comprehensive statement of principle I would merely add that Judicial Review is a discretionary remedy. The fact that the disputed conditions largely consist of facilities on offer from the Applicant from 1992 until 1997 and the failure of the Applicant to challenge the imposition of conditions first imposed in 1993 are matters which strongly suggest the Court should not intervene unless a very high threshold is crossed in this case.

77. The Court is not a third tier of appeal, nor is it concerned with the merits of the Board’s decision, nor with any concepts of “golf course design.” It is concerned exclusively with the legality or otherwise of the decision making process which resulted in the imposition of the conditions now complained of.

78. Firstly, I do not believe any question of res judicata exists in this case. While, as indicated by McCarthy J. in The State (Kenny & Hussey) -v- An Bord Pleanála , the absence of a change of circumstance would point in that direction, I am satisfied there have been changes in circumstances between 1993 and 1997. The golf clubhouse development has taken place other than in conformity with the original planning permission. At least one golf hole has been moved to a new location north of the access road. A new Cork Development Plan was introduced in 1996. At no time did the Board raise this point for the purpose of shutting out the appeal, but on the contrary, the Board proceeded to determine matters without taking any such consideration into account. At the end of the day, the existence unchallenged of these conditions for over four years is a matter which goes more to the issue of reasonableness of the conditions themselves and the exercise of judicial discretion.

79. I propose to deal firstly with the issue of de Courcey castle. I believe the Applicant’s case on “ownership and control” to be misconceived. At all material times the Applicant exhibited a sufficiency of interest on the materials submitted by it to the second named Respondent so as to permit of the attachment of a condition for the preservation of the castle. I refer in particular to the fact that the Applicant submitted plans and diagrams which placed the castle within the curtilage of the Applicant’s property. Mr. O’Malley’s letter of appeal in July 1997 was the first occasion when the Applicant raised any question about ownership of the castle. I have already decided that I can have regard to this letter but I am firmly of the view that the Board’s decision, having received Mr. Cranwell’s recommendation to the effect that, in the absence of definitive information (as to ownership), a condition requiring preservation should be left in situ, could not be viewed as “manifestly unreasonable”. It was not at all beyond the realms of possibility, assuming the contents of the letter to be accurate, that the Applicant would take in the castle as part of its property, as indeed it indicated it would do for the purpose of transferring ownership thereof to the OPW. Having arrived at that conclusion, and even if the “public safety” consideration referred to in the condition is either inappropriate or unlawful, (which, having regard to the location of the castle in the immediate vicinity of the entrance gates, I do not believe it to be) the Applicant has not challenged the entitlement of the Respondent to impose such a condition. Indeed such conditions are specifically provided for as non compensatable conditions in Section 12 of the Local Government (Planning and Development) Act 1990 (4th schedule, classes 15/17).

80. As Mr. Collins has pointed out, any prosecution for failure to comply with the requirements of this particular condition can be met if needs be by establishing the exact facts in relation to ownership and control. However, even if I am wrong, or if there is some doubt about the matter, the failure of the Applicant to challenge this condition over a four year period suggests to me that the Court should not grant relief by way of Judicial Review on this ground alone.

81. I now propose to turn to the conditions requiring public access to the headland which are at the heart of this controversy.

82. Firstly, it is interesting to see how the public access conditions have been recast in the Board’s decision when compared with the format contained in the 1993 permission and later in the 1997 retention permission. The 1993 condition, embracing as it did par 2.15 of the Environmental Report, was replicated in the 1997 permission. It is clear that three access elements were involved. The first of these was public access along the existing walled roadway to the new lighthouse. This is or was the route traversed by most pedestrian visitors to the headland. Secondly, access was to be provided to the area marginal to the neck and northern rim of the headland to the old lighthouse. It was in this context that a gravel path and picnic area was to be provided in the vicinity of the old lighthouse compound. Thirdly, and presumably to address the interests of bird watchers and climbers, access was to be provided to the cliff paths and cliff edges for interest groups.

83. In drafting its direction, as is apparent from the working document and appeal decision, the Board, firstly, removed the words “to the existing roadway to the lighthouse” and bunched together two access considerations in condition 1(1). In so doing, the obviously erroneous reference to the “ruin of the headland” was imported into the appeal decision.

84. The gravel path and picnic area are matters contiguous to the issue of access along the area “marginal to the neck and the northern rim of the headland to the old lighthouse”, but are confusingly separated in the format of the appeal decision. So, while the general public access to the lighthouse and the access provision for interest groups can conveniently be considered together, the second part of condition 1(1) of the appeal decision requires separate consideration because quite different considerations and consequences attach to that particular form of access.

85. The first part of the first condition is now completely untrammeled and unrestricted. By deleting the reference to “the existing roadway” access is no longer via a designated route so that “at all times during daylight hours” members of the public can access the lighthouse at the southern tip by whatever route or direction they choose. The small map of the golf course as constructed which was made available to the Court shows all too clearly how such a condition has the capacity to completely frustrate and/or render inoperable the use of the headland as a golf course. The two users are clearly inimical to each other and, if allowed to co-exist, could result in either injury or conflict between members of the public and golfers using the facilities of the course. It can hardly be said that a peripheral condition which has such damaging implications for the development as a whole can be “fairly or reasonably related” to the development. The reason offered for the imposition of the conditions is certainly not supported. While it may be “in the interests of amenity” in the wider sense of the development plan, I frankly cannot see how it could contribute to the “orderly development” aspired to in the decision of the Board. It would be quite impossible for the golf course operators to manage or supervise such a facility, short of constructing metal cages along which pedestrian traffic could move between the various holes of the golf course. One does not need to be a golfer or have golfing experience to know that extremely serious injuries can flow from mis-hit golf balls. Non golfers are usually the people least likely to appreciate this hazard. Furthermore, the terms of the condition as imposed obliges the golf course operator to keep this facility open, regardless of weather conditions, regardless of whether the course is open or closed and regardless of whether or not the golf development continues. I do not believe that any reasonable authority would have attached such a condition to a development of this nature.

86. Exactly the same considerations apply in relation to the “access to the cliff paths and cliff edges for interest groups”, except that I would also hold this particular proviso void for uncertainty. “Interest groups” are not defined, there is no dedicated route or routes for them, the areas they are to approach are contiguous to many of the greens on the golf course and, of course, the condition contains no restriction as to numbers. Again, it is not difficult to envisage unpleasant altercations arising on the headland where interest groups and golfing groups each assert a claim to be present in priority to each other. Further, no details have been agreed as to the composition of such groups or the time or times when they may go on to the headland, so that in default of agreement, the Board would determine who should access the Applicant’s property. It is also pertinent to note that Mr. Cranwell highlighted many of these problems and effectively recommended the abolition of the general public access conditions, other than in relation to the area between de Courcey castle and the old lighthouse, to which I will presently refer. Although he was hopeful that access by “special interest groups” could be maintained by agreement with the operators of the golf course, he was compelled to record:-

87. He went on to say:-

88. It is true to say that the Supreme Court in O’Keeffe -v- An Bord Pleanála (1993 I.I.R. 39) upheld a Board decision which was contrary not only the inspector’s report but also to the report of an expert seconded to him. However, even in that case there was some material to be placed in the balance when considering the recommendations of the inspector.

89. As stated by Finlay CJ. at p. 72:-

90. Where are the “recitals of evidence” or their equivalent in the present case to support the Board’s decision in rejecting, as hastily as it did, Mr. Cranwell’s recommendations? The simple answer is that there are none. I accordingly find that the first part of condition 1(1) and the entirety of condition 1(2) to be void as being “manifestly unreasonable”.

91. I have, of course, taken into account all of the matters submitted by Mr. Collins and Mr. Bradley. Years passed by without these conditions being challenged. These conditions were imposed largely as a result of representations and undertakings offered by the Applicant. This is strong evidence in itself to suggest that the conditions thus imposed were reasonable.

92. As was stated by Lloyd, J. in City of Bradford Metropolitan Council -v- Secretary of State for the Environment at p. 599:-

93. I entirely agree with this proposition, but, even taking the entire planning history into account, including the Applicant’s own conduct, I am still of the view that the portions of condition number 1 to which I have referred should be struck down because no reasonable planning authority would have imposed such conditions in the first place. I think Mr. Gleeson is correct in saying that the passage of time does not convert an irrational decision into something reasonable. It would be my genuine apprehension that, if allowed to remain, these conditions could render the entire golf development inoperable.

94. Different considerations arise in relation to the third access provision, namely, that which envisages the construction of a gravel path which would permit public access between de Courcey castle and a picnic area to be located in or near the compound of the old lighthouse. While Mr. Cranwell in his report has pointed out that the construction of the 7th hole on the north eastern side of the access road (other, I assume, than in accordance with the plans originally submitted) does mean that the gravel path will have to double back to the access road at one point. However, this particular area of proposed public access is not so intimately connected with the overall golf course as is the case in relation to other access provisions. It is the stated desire of the Respondents, in having regard to the wider implications of the development plan, to provide some measure whereby the public might enjoy the amenities of the headland. As this is a dedicated route and one that is removed from all but one hole on the golf course, this condition cannot, in my view, be said to be “manifestly unreasonable”. Indeed, it is arguable whether it is at all unreasonable, having regard to the Affidavit of Mr. John O’Connor, Director of the Applicant company, sworn as recently as June 1998 for the purpose of these proceedings wherein he deposes at par 6:-

95. Having regard to the planning history, and having regard to the Respondent’s interest in the development of the area within the development plan, it seems to me that this particular offer of public access was a material and relevant consideration for the Board to take into account. It was not a “ de minimis ” consideration of the sort referred to in Tesco Stores Ltd -v- Secretary of State for the Environment & Ors (1995) 2 AER 636.

96. Having reached that conclusion, I must now consider whether or not it was lawful and permissible to impose such a condition in the manner in which occurred in this case.

97. Both sides were at pains to point out during the hearing that no public rights of way either existed or were created by the terms and conditions of the planning permission and retention. As Mr. Bradley has pointed out, had some citizen chosen to litigate the issue, some quite different result on that issue might have emerged. However, this Court is not charged with that particular investigation.

98. Alternatively, under Section 48 of the same Act, the planning authority could, if it considered there was need for a public right of way over any land, have by order created a public right of way over the land. Neither of these options was pursued.

99. A planning authority is obliged to maintain any public right of way created by agreement under the Act, or in exercise of their compulsory powers (Galligan: Irish Planning Law and Procedure, p. 45).

100. By proceeding as they have done, the Respondents have avoided the usual consequences of creating a public right of way and have effectively shifted responsibility on to the Applicants both to provide it, maintain it and charge for it, subject to the decision by the Board as to the upper limit of any charge.

101. There can be no doubt but that the condition encroaches upon the Applicant’s property rights and obviously do so in a manner not contemplated by or addressed by statute.

102. A vague right of public access may legitimately be considered as far more onerous on a property owner than a public right of way, which at least is confined to a dedicated or specified route. By acting as it has done, the second named Respondent has, arguably, reduced the value of the Applicant’s property and has certainly deprived it of compensation which it might otherwise have obtained under the Local Government (Planning and Development) Act 1990.

103. Section 22 of the 1990 Act provides:-

104. The Supreme Court in Grange Developments -v- Dublin County Council (1989) ILRM 145 unanimously held that a planning authority in dealing with an application for planning permission was not entitled under the 1963 Act to have regard to its liability to pay compensation and to the form of permission which might, whether granted or undertaken to be granted, avoid such liability. In Eighty Five Developments Ltd -v- Dublin County Council (1993) 2 IR 243, Finlay CJ, delivering the majority opinion, stated that it would be “an abuse of power and function” by planning authorities and An Bord Pleanála were they to refuse a permission, giving as a reason not the true planning consideration involved, but rather a reason which would exclude a right to compensation. This is still the position after the 1990 Act. In Hoburn Homes -v- An Bord Pleanála (1993) ILRM 368, Denham J. in the High Court held that an attempt to avoid paying compensation for refusing planning permission by giving a spurious reason for refusal was ultra vires An Bord Pleanála.

105. I would hold the third access provision void for these reasons. It follows from the foregoing, that if I am incorrect in holding the two other provisions for public access void for “manifest unreasonableness”, I would also find them void for the reasons just stated. It follows from the foregoing finding that the condition providing for access charges, which is premised on the validity of the public access provisions, is also void. Should I be found to be in error in any of these conclusions, I would also hold that the charging provision is void for uncertainty.