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Saturday 17 November 2018

Farmers given permission to challenge ruling on use of laneway beside their home

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Tim Healy

A farming couple have been given permission by the High Court to challenge a Bord Pleánala decision over the use of a laneway beside their home which has been at the centre of a long running row over access by a rowing club to a lake.

Cornelius and Suzanne Dennehy, who live and farm near Fossa village in Co Kerry, want the court to quash an August 30 last decision of the board declaring that a gate they erected at the entrance to lands they own is not exempted development. 

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 Donal Coffey.

On Monday, Mr Justice Seamus Noonan granted the Dennehy's lawyers permission to bring judicial review proceedings against the board, the Minister for Housing Planning and Local Government and the State over the board's decision. Mr Coffey is a notice party.

Mark de Blacam SC, for the couple, said the land in question is owed by the Dennehys and their neighbour Maurice O'Connell who, up until 1989, was supportive of the Fossa Rowing Club using the lane to access the lake

Mr Dennehy also allowed them to use it up until 1993 until some members of the club exceeded their permission and insisted they had a right to use it.

No trespassing signs were erected but by 2012 there were increasing incursions which became confrontational and gardai had to be called, counsel said. Mr Dennehy was on one occasion assaulted, he said. 

Local boat groups were now asserting a public right of way even though it was private land, he said.

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In 2011, Circuit Court proceedings brought by the rowing club and by Mr O'Connell seeking the removal of the gate and declaration of a right of way were dismissed. 

An appeal by the boat club against that decision was discontinued. Mr Coffey, the hotelier, gave evidence in that case on his own behalf and that of the club.

Mr Coffey then made an application to Kerry Co Council under the Planning and Development Act for a decision on whether the erection of the gate was exempted development and did not require planning permission.  

The council referred it to the board who, following a second referral after the board agreed to a quashing of the first decision, made the decision that it was development.   Among the board's reasons was that the gate was "habitually open to or used by the public" during the preceding ten years when it was a means of access to the lake.

It was their case that it was irrational and that the board misconstrued the regulations and the decision was not in accordance with law, he said.

In making its decision, the board purported to make a finding of the existence of public rights which can only be made by the courts, the Dennehys say.

They also say the Minister for Housing, in attempting to introduce into Irish law a concept of habitual use and access to private lands by the public, at the expense of private landowners, has unlawfully entered into the judicial sphere and has attacked the Dennehys' constitutional rights.  

Mr Justice Noonan also placed a stay on the decision of the board and said the matter could come back in December.

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