Wednesday 28 June 2017

Supreme Court ends costly Old Head saga

SOME elements of golf are impossible to defend, even by those of us who make a living out of the game. Stubborn elitism and discrimination against women immediately spring to mind.

But another side of the coin has been highlighted over the last two days. For the first time since the official opening on June 1 1997, the Old Head of Kinsale staged their annual Members' Championship free from the threat of litigation.

It stemmed from a unanimous decision by the Supreme Court to dismiss in its entirety, an appeal by An Bord Pleanála against a High Court decision affirming that no public right of access existed on the promontory. And it has left the club president, John O'Connor, with contrasting emotions of relief and anger.

"I am angry that a Government-appointed body could act in such a cavalier fashion with taxpayers' money," said O'Connor. "They deserved to have their knuckles rapped. The fact that in appealing to the Supreme Court the board could ignore the recommendation of their own inspector, proves the need for far greater transparency in the planning process."

The Old Head's solicitor, Basil Hegarty, has estimated that legal costs awarded against An Bord Pleanála and earlier against Cork Co Council at the High Court stage, will land the taxpayer with a bill in excess of ?1 million. O'Connor claims that the final figure could be considerably higher.

In their 54-page judgement, the Supreme Court described the case against the Old Head as the story of an administrative authority over-reaching itself so as to achieve goals foreign to its statutory purpose.

Hegarty explained: "The judges found that the Co Council and the board were guilty of an attempt at social engineering in endeavouring, through the planning process, to create public rights of access where they knew none existed. Such acts were 'ultra vires' their powers and breached the fundamental rights of private ownership guaranteed by the constitution."

In their unanimous decision, the five Supreme Court judges further ruled that Cork Co Council and An Bord Pleanála had acted in a "manifestly unreasonable" manner in attempting to impose such conditions.

A more sinister aspect of what has become a landmark case for golf-course development is that the outcome wouldn't have been possible without the club's considerable financial resources. "Since this business started six years ago, our legal costs have run to about ?3 million," said O'Connor. "That fact, of itself, should have serious implications for the planning process."

During the period leading up to its official opening, it seemed that every environmental crank was making the Old Head a target for ill-informed comment. How was it that the public had been suddenly denied free access to this national treasure? Why weren't those with an appreciation of the environmental value of the site, allowed to take it over?

When the O'Connor brothers, John and Patrick, decided to buy the Old Head, which had been on the market for more than four years, one of the first questions they asked their Cork City-based solicitor was whether there were any public rights of way on the property. Hegarty, an acknowledged expert in conveyancing, investigated the matter thoroughly and concluded there were none.

He was aware that for generations, people had used the Old Head, climbing over gates and walls. But however vehement the views of certain individuals, they had not established any rights there, from a legal standpoint. They were, in effect, trespassers. And that was the advice he gave to his client.

Still, when it became known that a golf course was planned for what many people viewed as a public place, the response was fairly predictable. "We started with Cork County Council, the initial planners, who expressed the view that there were public rights to the Old Head," recalled Hegarty. "I told them there weren't. They then consulted their lawyers and in the fullness of time, conceded that I was right and they were wrong.

"When the planning process started and the public began to have their say, County Hall in Cork was their first port of call. An Taisce were among those with the firm opinion that there were public rights of access to the Old Head and they, too, had to be convinced that this was not so.

"The same rigmarole had to be gone through with each interested group, including the townspeople of Kinsale, An Bord Pleanála and Bord Fáilte. Inevitably, with all of this going on, things became decidedly messy but eventually, every single protesting body, having consulted their own laywers, conceded that there were no rights of way."

During the construction stage, prior to 1994, no planning permission was necessary to build a golf course in this country. And it is thought that experiences at the Old Head were responsible for a change in the law, which has since affected Doonbeg, The Heritage and Carton House, among others.

WHEN planning permission for a clubhouse was sought from Cork Co Council, they imposed a condition of public access from dawn to dusk, 365 days a year. This was later upheld on appeal by An Bord Pleanála. However, when the matter came before the High Court in two separate hearings, it ruled: "The imposition of such a condition (by the Co Council) is manifestly unreasonable and unenforceable."

After the Council had dropped out of the process, An Bord Pleanála appealed to the Supreme Court so as to create what were effectively rambling rights for the public, all over the golf course. Which, from a safety standpoint, would have made the playing of the game impossible.

The upshot of all the legal and public arguing is that today, access to the Old Head is strictly by permission of the owners. And apart from the golfing public, this has been readily forthcoming for special interest groups.

The legal costs will land the taxpayer with a bill in excess of ?1m

By arrangement, bird watchers, whale watchers, rockclimbers, a Kinsale outdoor pursuit club along with a fisherman's club are given access to the 216-acre promontory. "They know us and we know them and there's never any problem," said Jim O'Brien, the club's general manager. "They're always welcome."

But protests continue. Only two weeks ago, the so-called 'Free the Old Head' campaigners were outside the main gates. Though they numbered only 21 adults and seven children, there were 43 Gardaí present to prevent trespass, which became a criminal offence last year.

Further protests are threatened, but they will be only minor irritants compared with the seemingly endless twists and turns of the legal process. As John O'Connor put it: "When people suggested that developing the Old Head must have been a labour of love, I would laugh at the notion. Torment rather than love is the word that springs to mind."

Still, the pain would appear to be at an end. And whatever the views of a small group of protesters, a highly contentious chapter in the recent history of Irish golf-course development, has finally been closed.

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