Right of way order agreed 'behind closed doors'

Fianna Fáil councillors who voted to extinguish a public right of way on a road in Co Donegal did so on the basis of a party whip agreed on "behind closed doors" and contrary to legal advice that a whip could not be imposed, a local woman has claimed before the High Court.

Niall Hill, for Kathleen Coll, said the Fianna Fáil whip was imposed concerning the Donegal County Council vote of May 29th, 2006, on the road issue where there had been no examination of the merits of the case, no notes of a private meeting of Fianna Fáil councillors beforehand and in circumstances where the developer, Liam Gillespie, was a brother-in-law of a Fianna Fáil junior minister in Co Donegal. The evidence indicated prejudgment, Mr Hill argued.

Ms Coll also claims the councillors who voted in favour of extinguishment did so out of fear of legal action by Mr Gillespie against the council and out of concern that, if legal action was taken, they could face being personally surcharged.

The council denied the claims and contends the vote to extinguish the public right of way over part of the Strand Road, Bunbeg, was made in a lawful, proper and fair manner and in accordance with the relevant statutory powers.

It claims there is no evidence that those councillors who voted in favour did so solely or mainly because of the party whip and contends the evidence indicates they voted that way because they supported extinguishing the right of way. It cannot be inferred that the imposition of a party whip deprives councillors of their freedom of action, it claims.

In proceedings which opened yesterday before Mr Justice Liam McKechnie, Ms Coll, Strand Road, Bunbeg, is seeking to overturn the council's decision, by a 14-10 majority, to extinguish the public right of way over part of the Strand Road and transfer it to Mr Gillespie.

The judge was told all 14 councillors who voted in favour of the proposal were Fianna Fáil members, while the 10 who voted against were from various parties. One Fianna Fáil councillor who opposed the motion left the meeting when the matter came up.

The case arises from a decision of An Bord Pleanála in 1999 to grant permission to Mr Gillespie for development of a filling station and supermarket at the junction of the Strand Road and Bunbeg Road on condition he carry out realignment works on the Strand Road.

The council had earlier refused permission. However, after the board granted conditional permission, the council and Mr Gillespie agreed on works to be carried out. Ms Coll and other members of the Strand Road Residents Association objected to the proposed works on road safety and other grounds during a public consultation process.

In a later report to the councillors, the council recommended that the proposed extinguishment of a public right of way be approved, subject to conditions. On October 20th, 2003, the councillors rejected that motion by 13 votes to eight. However on legal advice, that vote was later deemed invalid and the council decided to recommence the extinguishment procedure. The High Court in July 2005 rejected a challenge by Ms Coll to that decision.

It is claimed that before the second vote on the proposal to extinguish the right of way, the councillors were advised by the county solicitor, in light of advice from senior counsel, that they had to act judicially and that it was not a matter suitable for determination by a party whip.

However, at a private meeting before the vote, the Fianna Fáil councillors decided the whip should apply and all Fianna Fáil members who attended the debate on the matter on May 29th, 2006, voted to extinguish the right of way.