High Court ruling on South Kerry Greenway signals shift in perceptions of sustainable travel
Part of the route for the proposed South Kerry Greenway. The High Court decision allowing for the project to go ahead may have far-reaching effects for future greenway and active travel infrastructure projects in Ireland. File picture
The decision of the High Court last week to dismiss judicial reviews against the South Kerry Greenway will come as good news for Kerry County Council, which is developing the project, and for those who have worked over many years to have a greenway installed, primarily on the route of the former southern and western railway line between Glenbeigh and Caherciveen.
The proposed greenway runs parallel to the Ring of Kerry, a tourist route of international renown. The High Court decision may also have far-reaching effects for future greenway and active travel infrastructure projects in Ireland.
In November 2020, An Bord Pleanála granted permission for a 27km greenway on the route, consisting of a 3m-wide paved surface, which would be shared between pedestrians and cyclists, and 122 different types of intersection with other routes. The permission by the planning board was subject to several conditions, including an ecological pre-construction survey to check for the presence of protected species, including the Kerry slug and lesser horseshoe bat, and for those to be relocated to a similar habitat, subject to a derogation licence where required.
The grounds of one of the challenges included claims that the permission contravened EU Directives on Environmental Impact Assessment and Habitats.
The second challenge was from landowners whose lands would be compulsorily purchased by the council and the landowners raised issues about the process surrounding the confirmation of compulsory purchase orders (CPOs).
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On the CPOs, in his ruling, the judge rejected arguments of incorrect use of the Roads Act by the council in acquiring the lands for the project or that the processes of CPO and development consent were improperly combined and the judgment affirmed that a separate order was made in relation to the CPO and that the CPO was made for its own specific reasons.
The judge rejected arguments that the CPO was disproportionate and found the interference with the landowners' property rights was taken in a lawful manner in the public interest and that there was no error in the council looking at economic and population decline in the region in determining whether there was a public need for the CPO.
CPOs allow certain statutory bodies, such as a city or council, to acquire land or property through a legal process without the consent of the owner. Compulsory purchase usually takes place to allow public infrastructure projects considered to serve a public need and to be for the common good.
CPOs have traditionally been used for ‘heavy’ public infrastructure projects such as road, railway, and water and wastewater projects. However, CPOs have not generally been used for acquiring lands for greenway projects, as this was often done by agreement with landowners along the route.
In fact, one of the first and best-known greenways in the country, the Great Western Greenway in Mayo, completed in 2011, was established largely through access agreements with the impacted landowners. CPOs are an important tool available to statutory bodies and are intended to allow strategic, public infrastructure projects to proceed without undue delay.
Kerry County Council's planning application to An Bord Pleanála in August 2018 for the greenway development included a CPO order to acquire lands and referred to the greenway as being a public road. It cited in the order section 68 of the Roads Act 1993, which defines a “cycleway” as a public road or proposed public road reserved for the exclusive use of pedal cyclists or pedal cyclists and pedestrians.
The CPO was subsequently confirmed by An Bord Pleanála in their decision in late 2020.
The High Court decision affirms the confirmation of the CPO, which means the council can now proceed to acquire the lands to develop the South Kerry Greenway. The decision also affirms that the council was entitled to use social and economic factors, such as economic and population decline in the area, in making the case for the CPO, which is also significant.
This decision will be closely studied by other councils and statutory bodies planning to develop greenways or other forms of active travel infrastructure, where lands may need to be acquired.
The decision, one imagines, will also be examined by landowners whose grounds may be impacted by future greenways.
In broad terms, it is generally better to acquire lands by agreement with landowners, but that is not always possible or can result in significant delays, and that is why CPOs are an option for certain public infrastructure projects.
The apparent reluctance to use the CPO process for greenways, in the past, may also stem from a perception of greenways as largely being about leisure and tourism, and not necessarily about meeting the more functional transport needs of local people.
Thankfully, this perception is changing and there is a growing understanding in society of the potential of well-designed greenways — connected to village and town centres — to support the transport needs of local people to go to school, to get to work, to visit shops, and so on, as well as the role greenways can play in supporting tourism and the local economy.
Good-quality greenways and active travel infrastructure in both our rural and urban areas can play a major part in supporting a shift to the use of more sustainable travel modes, like walking and cycling, which will have wider benefits for our health, environment, climate, and economy.
- Robert Burns is director of service infrastructure and climate change, Dún Laoghaire-Rathdown County Council
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