High Court orders Kerry builder to remove gates in planning row
Ms Justice Niamh Hyland upheld an appeal taken by Kerry County Council against a decision of Tralee Circuit Court in November 2020.
A builder in north Kerry has been ordered by the High Court to remove gates that prevented access to several properties he owned in the village of Tarbert in a planning row that involved a local GAA club.
Ms Justice Niamh Hyland upheld an appeal taken by Kerry County Council against a decision of Tralee Circuit Court in November 2020 not to grant the local authority its application for an order requiring gates to be removed from a small development of four houses at Ross Court, Tarbert, Co Kerry, after it took enforcement proceedings against the developer, Michael McElligott.
The judge ruled that Mr McElligott did not have planning permission for padlocked timber gates which were erected at the access point to Ross Court on Church Street.
A grant of planning permission in 2008 contained a condition which stipulated that vehicular access to the properties could only be via Church Street and that access via Chapel Lane which is the entrance to Tarbert GAA club be limited to pedestrians.
Complaints were made to the council by the GAA club in 2015 that the occupants of Ross Court were parking their vehicles on Chapel Lane.
An application for retention permission by the builder for the gates was subsequently refused.
Tralee Circuit Court last year directed Mr McElligott to comply with the 2008 condition on access to Ross Court but did not order him to remove the gates.
However, the High Court said none of several arguments raised by Mr McElligott were meritorious including “unwarranted complaints” about the motivation of Kerry County Council in taking the proceedings.
Ms Justice Hyland said he had also failed to provide any reasons why an exemption should apply to the gates and he had not provided any explanation why the gates were erected or why he believed they were an authorised development.
She said most significantly the gates erected by Mr McElligott posed a traffic hazard over a considerable time period which had impacted on the users of a local GAA club including young children.
The judge said an argument by the builder that the issue was not a planning matter was “difficult to understand.”
Ms Justice Hyland noted that Mr McElligott accused the council of not acting in good faith by allowing itself to become an actor on behalf of Tarbert GAA club and its agenda.
She said such allegations were “quite unfounded”, adding that the actions taken by the council were “entirely appropriate” given its statutory functions to investigate allegations of breaches of planning laws.
The judge said correspondence between the council and the GAA club, which had been criticised by Mr McElligott, had correctly not been placed on a public file as it related to enforcement matters.
She said the builder had also failed to state how requiring the removal of the gates would be “impracticable, unreasonable and irrational” as he had claimed.
The High Court also noted that Mr McElligott had reached a settlement in civil proceedings between himself and Tarbert GAA club.
