An Bord Pleanála can't appeal Kerry laneway case, high court rules

An Bord Pleanála can't appeal Kerry laneway case, high court rules

A high court judge has refused An Bord Pleanála leave to appeal a court decision over the use of a Kerry laneway. File Picture.

A High Court judge has refused An Bord Pleanála leave to appeal a court decision which saw a Kerry couple win a legal challenge over the use of a laneway beside their Kerry home.

The laneway had been at the centre of a long running row over access to a scenic lake and, last May, the High Court had ruled against An Bord Pleanala.

Cornelius and Suzanne Dennehy, who live and farm near Fossa village in Co Kerry, the court ruled in May were entitled to an order quashing the August 2018 decision of An Bord Pleanála declaring that a gate they erected at the entrance to lands they own requires planning permission.

The lane leads down to the shore of scenic Lough Leane and links to the N72 Killarney-Killorglin Road. 

It also provides access to a number of houses and to the Loch Lein Country House Hotel, owned by Dr Donal Coffey.

The Dennehys' legal challenge was against the board, the Minister for Housing Planning and Local Government, and the State over the decision. Dr Coffey was a notice party.

Mr Justice Charles Meenan, in May, said he was satisfied An Bord Pleanála erred in law in failing to correctly consider a circuit court decision which found there was no right of way of the Dennehy land.

The failure to consider the circuit court decision made the planning board's decision unreasonable or irrational, he said.

An Bord Pleanála had sought leave to appeal the high court decision to the court of appeal on various legal grounds. 

It sought to have certain points of law certified for appeal.

Mr Justice Charles Meenan said he was satisfied there was no basis for certifying one of the questions and the other had not identified any uncertainty in the law nor any point of law of exceptional importance. 

He denied An Bord Pleanála leave to appeal.

Previously, the court heard that land on one side of a lane had been a traditional boaters' access to the lake and is owed by the Dennehys and on the other side by Sir Maurice O'Connell.

In 1989, Mr O’Connell no longer wished to facilitate the activities of the local Fossa Rowing Club as he had done in providing access for the club.

Three members of the club approached Mr Dennhey and got permission to walk over the Dennehy land to get to the lake. 

Mr Dennehy claimed some members of the club exceeded their permission and insisted they had a right to use it. The Dennehys erected a gate to prevent trespass in 2010 and no trespassing signs were also erected. 

But by 2012 there were increasing incursions which became confrontational and gardaí had to be called.

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”.

There were also two circuit court cases and high court cases around the matter.

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