A couple want the High Court to quash a decision by An Bord Pleanála over use of a laneway beside their home which has been at the centre of a long running row over access to a lake.
Cornelius and Suzanne Dennehy, who live and farm near Fossa village in Co Kerry, want the court to quash an August 2018 decision of the board declaring that a gate erected by them at the entrance to lands they own requires planning permission.
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 Dr Donal Coffey.
The Dennehys’ judicial review case, being heard by Mr Justice Charles Meenan, is against the board, the Minister for Housing Planning and Local Government and the State over the decision. Dr Coffey is a notice party.
The court heard 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 he claimed some members of the club exceeded their permission and insisted they had a right to use it.
Trespass
The Dennehys erected a gate to prevent trespass in 2010 and no trespassing signs were also erected.
But by 2012 there were increasing incursions which became confrontational and gardaí had to be called.
Among the incidents were an assault and the shooting of his dog, the court heard. Local boat groups were now asserting a public right of way even though it was private land.
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.
Dr Coffey gave evidence in that case on his own behalf and that of the club.
Dr Coffey then made an application to Kerry County Council under the Planning and Development Act for a decision on whether the erection of the gate was exempted development.
The council referred it to the board which decided it was development. Among the board’s reasons was 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.
In their High Court challenge, the Dennehys claim the board’s decision was irrational.
It is claimed the board misconstrued the regulations, its decision was not in accordance with law and it could not make what amounts to a finding of a right of way. The board and the Minister deny the claims. The case continues.