High Court of Ireland Decisions

1. This is an application by the Applicant for leave to seek Judicial Review. The reliefs sought are:-

2. The background to the case is that the Applicant is the owner of the lands comprised in Folio 5759 of The Register of Freeholders County Cork being the lands commonly known as the Old Head of Kinsale. The Applicant has developed the said lands by building a golf course thereon, which development is accepted by all parties is an exempted development and did not require planning permission.

3. By a decision of the First named Respondent dated 6th May 1993 the Applicant was granted planning permission for a development comprising the erection of a golf clubhouse and ancillary equipment building together with necessary site works, carpark, road ways and drainage on a portion of the said lands in accordance with plans lodged with the Second named Respondent (hereinafter called "the County Council"). There were a number of conditions attached to the said permission including, inter alia: -

4. The Applicant erected a clubhouse and carried out other works on the lands, but these were not carried out in accordance with the said planning permission and the said conditions were not complied with. In due course the Applicant applied to the County Council for retention and completion of the golf clubhouse, carpark and access road, retention of machinery shed, retention and modification of entrance. Permission was granted by the County Council, again subject to a number of conditions, and the Applicant appealed against certain of these conditions to An Bord Pleanala. The result of the appeal was that the application for retention was granted subject, inter alia, to the following conditions:-

5. I must emphasise that this is not an application for Judicial Review, it is an application for leave to apply for Judicial Review. Section 19 (3) of the Local Government (Planning and Development) Act, 1992 amended the Local Government (Planning and Development) Act, 1963 by inserting a provision in section 82 thereof, the relevant portions of which are as follows:-

6. The meaning of the words "substantial grounds" has been considered in several cases. There is no doubt that the Applicant must do more than merely show that it has an arguable case, but it is equally clear that the Applicant does not have to prove his case even on a balance of probability at this preliminary stage. In particular, the Court does not determine any question of fact, nor does it make any final determination on questions of law. In McNamara -v- An Bord Pleanala (1995) 2 I.L.R.M. 125, Carroll J. said at page 130:-

7. This passage has been cited with approval and followed in a number of subsequent cases, and I believe accurately represents the legal position. For this reason, I propose to limit myself in this judgment to considering whether the grounds put forward by the Applicant are reasonable in this sense. In doing so, I propose to consider the grounds put forward by the Applicant in respect of its challenge to the conditions individually, although of course those grounds do overlap to a considerable degree.

8. Conditions 1 and 2 may conveniently be considered together. These conditions purport to require the Applicant to provide access for the public to the lands and to provide certain amenities such as a picnic area in relation to such public access. This goes far beyond the development sought in the planning application, which merely related to retention of certain developments which had already been carried out. In fact it required further development of the lands. Section 26 of the Local Government (Planning and Development) Act, 1963 provides, inter alia :-

9. Subsection (2) is expressly stated to be without prejudice to the generality of subsection (1) and provides that the Planning Authority may impose conditions of certain types which include:-

10. It is, therefore, quite clear that a Planning Authority may require further development work to be carried out as a condition to a planning permission, and if one solely considers the provision of a picnic area, that would seem to me quite clearly to come within the powers of the Planning Authority. However, what the conditions seek to impose in this case are not only the carrying out of works, but the provision of access by the public, at a charge. It is conceded by the Respondents that there is no public right of way over these lands, and that insofar as the public has in fact used the lands as an amenity, they have been trespassing when doing so. These conditions do not merely affect the physical development of the lands, but also entirely alter the use of the lands. The lands are used as a privately owned golf course and in my view there are substantial grounds for arguing that imposing such a condition is ultra vires the powers of the Respondents as granted by section 26. The only argument which the Respondents can make is that such conditions are within the general powers conferred by section 26(1), and it seems to me there are substantial grounds for arguing that, while the 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 does not empower them to impose a condition on a land owner obliging it to allow such access.

11. I think there is also a substantial argument that such a condition is totally unreasonable and irrational. Imposing this condition in the way in which it has been done, without any detailed consideration as to how such access is to be overseen, could in effect put members of the public exercising this right of access in serious danger, both from being struck by golf balls and by reason of the sheer cliffs on part of the lands.

12. Apart from seeking to justify the conditions on planning grounds, the Respondents also question the Applicant's right to raise these issues at all, for two reasons. Firstly, very similar conditions were imposed in the original planning permission, which was not in fact followed, but the conditions were not objected to at that time. Furthermore, they point to the undoubted fact that the Applicant submitted to the Planning Authority that they intended to allow some form of access to the public, in particular in the Applicant's letter of 27th May 1997. These are undoubtedly matters which may be canvassed by the Respondents ultimately, but in my view they are not sufficiently persuasive to take away from the substantial nature of the Applicant's grounds.

13. In relation to condition 3, I am of the view that the Applicant's grounds are very substantial indeed. I know of no provision whereby a Planning Authority is entitled to regulate charges made for access to property, particularly when that access is imposed by the Planning Authority themselves. I think there are very substantial grounds for saying that this is not a planning condition at all, and further that the regulation of charges to the public is in itself a matter which would be ultra vires a Planning Authority. This is also a totally impractical condition in that there is no reference to what is to happen if the entrance fee cannot be agreed, and it would seem to envisage a continuing consultation process between the Applicant and the Planning Authority, as presumably the Applicant's expenditure will vary from year to year, and therefore it would be entitled to vary its entrance fees.

14. Finally, with regard to condition 8, the justification for imposing such a condition would seem to be contained in section 26(2)(a), which permits:-

15. If there is a question of access by the public to the lands, the Planning Authority is certainly well within their rights in trying to ensure the safety of the public in relation to the Castle which is at the entrance to the lands. However, if there is to be no access to the public, I think there is a substantial argument that the condition of the Castle is quite irrelevant to the development authorised by the permission. Furthermore, there appears to be a doubt over the ownership of the Castle, and the Planning Authority is only entitled to impose the condition if the Castle is under the control of the Applicant. I certainly did not have sufficient material before me to determine whether that is so, nor in my view is it a question which should be determined at this stage in the proceedings. The Castle is apparently a National Monument, and enjoys certain protection in that regard, and there is a considerable doubt on the title document as to whether this is or is not within the folio owned by the Applicant. It is expressly provided in the folio:- "There is excepted out of the said lands the property in the ancient monument known as Down MacPatrick Castle", which is accepted to be what is commonly known as deCourcey Castle. On the other hand, the Land Registry map would appear to include the Castle. However, there is certainly a substantial argument that the wording of the folio itself takes precedence over the Land Registry map, and indeed that the words "excepted out of the said lands" could be construed as meaning excepted out of the lands which are delineated on the Land Registry map. I am certainly not determining the ownership of the Castle, but if it is not in the ownership or under the control of the Applicant, then there are certainly substantial grounds for saying that such a condition cannot be imposed. In saying this, I recognise that conditions may be imposed validly which relate to lands which are not under the Applicant's control, as was argued by the Respondents before me under the general power contained in S26(1) of the 1963 Act, but certainly if the Applicant should succeed in relation to the other conditions, then there is a substantial argument to be made that the condition in relation to the Castle is not one which should properly be imposed.

16. On these grounds I would grant leave to the Applicant to issue Judicial Review proceedings in accordance with the Statement of Case which has been filed. I should add that in granting such leave I am not ignoring the substantial legal arguments which were put before me on behalf of the Respondents, but once substantial grounds have been established those legal arguments become a matter for the substantive hearing and not for the preliminary hearing.