High Court of Ireland Decisions

1. This decision arises out of an application made on behalf of the first named Respondent, following the judgment of this Court delivered on the 21st day of March, 2001, whereby the Court has been asked to certify that its determination of that date involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

2. In this context, the Court was referred to the Judgment of McKechnie J in Kenny -v- An Bord Pleanala (unreported Judgment delivered the 2nd day of March, 2001) which contains a most helpful resume and review of the criteria applicable when considering this section. His review of the case law indicates a considerable degree of uncertainty and subjectivity in decisions whether or not to grant a certificate. In accepting fully the statement of considerations enumerated at pp. 3 - 4 of the Judgment of McKechnie J, I would simply add the observation that the terminology of the section seems to clearly convey that the point of law must arise out of the decision of the High Court itself, and not merely from discussion or consideration of a point of law during the hearing, be it of major or minor import, which did not go to the actual determination or decision itself. In other words, there is no place for a moot on some interesting point which may have arisen in the case. The point of law must be ‘of’ or in some way contained ‘in’ the decision or determination in the first instance, and must at the same time transcend the case itself to meet the requirements of exceptional public importance and public interest. On this point, both parties have stressed, and I entirely agree, that “public interest” is not to be confused with considerations of ‘newsworthiness’ or heightened public controversy surrounding the particular case.

3. The judgment delivered on the 21st day of March, 2001 related to certain conditions attaching to a retention permission granted by the Respondents in relation to the golf clubhouse which is part of the golf course development at the Old Head of Kinsale in Cork. The judgment essentially decided or determined three matters.

4. The first related to the condition imposed upon the Applicant to maintain and preserve the ruins of de Courcey Castle which is located immediately beside the entrance to the Golf development and which said condition was upheld by the Court.

5. The second element in the judgment related to a condition requiring the developer to provided access at all times during daylight hours for the public to the lighthouse at the southern tip of the headland and for access to the cliff paths and cliff edges for interest groups. This access was not by means of any dedicated paths or routes. The Court found such a condition, which effectively permitted members of the public to wander at will over playing areas of the golf course, to be manifestly unreasonable to such a degree as to render potentially inoperable the user of the headland as a golf course. This condition was not upheld.

6. The third element of the judgment related to a more specific form of public access whereby members of the public were to be provided with access via a gravel path between de Courcey Castle and a picnic area near the Old Lighthouse Compound, all on the northern rim of the headland.

7. While no public rights of way were asserted or established during the course of hearing before this Court, the Court held that this third condition was not per se either irrational or manifestly unreasonable, for reasons which included (a) that it had been offered by the developer and (b) that it was a limited form of public access via a dedicated path at a location on the headland which did not impinge or interfere grossly with the Applicant’s ability to operate the golf course.

8. However, although the form of public access imposed by this particular condition had the characteristics of a newly created public right of way, it was common case that the second named Respondent had not followed the statutory procedures appropriate to the creation of a right of way. It had been open to the planning authority under Section 47 of the Local Government (Planning and Development) Act, 1963 to enter into an agreement with the developer to create a right of way on such terms as to payment or otherwise as might be agreed and subject to such limitations or conditions as might be agreed affecting such public right of way. Alternatively, it was open to the second named Respondent, under Section 48 of the same Act, if it considered there was need for a public right of way over the land, to make an order creating a public right of way over the land, which would have had certain implications for the payment of compensation to the developer.

9. Neither of these options was pursued. Instead the second named Respondent by imposing the condition in the manner in which it did shifted responsibility onto the developer both to provide a designated form of public access in the nature of a right of way, maintain it and charge for it, subject to the requirement contained in the condition that any charge should not exceed the cost of insurance and the administration of entrance control and should not be increased in any event save with the consent of the planning authority.

10. The Court accepted the Applicants submissions that the imposition of such a condition operated to circumvent the existing statutory provisions, whilst at the same time depriving the Applicant both of compensation and of the right to derive a profit from his ownership in the property. The Court further found that the charging provisions attached to the said condition were void for uncertainty.

11. Following delivery of the judgment, Counsel on behalf of the first named Respondent advanced a number of points for consideration by the Court as being suitable for certification by way of appeal to the Supreme Court under the statutory provision already cited.

12. These submission were received by the Court immediately in the aftermath of delivering its judgment and further oral submissions were received by the Court on the 13th day of June, 2001. On that occasion, Mr. Collins on behalf of the first named Respondent effectively confined his submissions to the third condition outlined above, namely, that which imposed a right of public access via a dedicated route between de Courcey Castle and the Old Lighthouse Compound on the northern rim of the headland.

13. I will first state the suggested point of law in its essential short form and then in the more detailed form in which it was formulated to the Court by Mr. Collins, together with one amendment of my own which I have added to and underlined in his original text, and as further enlarged following submissions made by Mr. Gleeson on behalf of the Applicant.

14. In short, the point upon which the opinion of the Supreme Court is sought is whether or not a planning authority, where specific statutory measures exist and are available to it for the creation of a public right of way, may nonetheless chose to impose a condition which for all practical purposes creates a right of way but which not only avoids the usual consequences which attend the exercise of the specific statutory powers but which also imposes further attendant obligations on a developer.

15. The more detailed form of the question formulated by Mr. Collins for consideration is as follows:-

16. On behalf of the Applicant, Mr. Gleeson argued firstly, that no point of law arises from these questions which meets the criteria of S. 82 (3B)(b)(i) and, secondly, that the access provision could not be viewed in isolation from the charging provision which was annexed to it and which the Court had found to be void for uncertainty. He submits that this finding by the Court in its judgment effectively subverts the meaningful consideration of any such point of law as suggested by Mr. Collins.

17. It seems to me that a point of law of exceptional public importance and public interest does arise where uncertainty as to the powers of a planning authority in such a vital area may be shown to exist and that I should refer to the Supreme Court for its opinion and decision, the question just detailed. As the short form statement of the point of law indicates, I have decided to add to the list supplied by Mr. Collins the two following matters as being appropriate to the issues the Supreme Court may require to consider:-