There is no right of public access to the scenic Old Head of Kinsale which has been developed as a golf course, the Supreme Court has decided.
The court yesterday held that a condition imposed by An Bord Pleanála granting public access to the Old Head was in excess of the powers of the board, and thus void.
In March 2001 the High Court quashed conditions imposed by the board on the developer of the golf course, Ashbourne Holdings Ltd, of South Mall, Cork. These required the company to provide access to the public during daylight hours to a lighthouse at the southern tip of the headland and for access to cliff paths and cliff edges for interest groups.
In the High Court Mr Justice Kearns said such conditions would effectively allow the public to wander over the playing area of the golf course and were so "manifestly unreasonable" as to render "potentially inoperable" the use of the headland as a golf course.
An Bord Pleanála appealed the decision to the Supreme Court on points of law. One of these related to the validity in principle of planning conditions laid down by the board which were directed at ensuring or regulating public access at the Old Head of Kinsale lands.
Such lands were adjacent to the golf course and also owned by the golf-course developer.
Mr Justice Hardiman, giving the Supreme Court's decision dismissing the appeal, said the power to impose conditions on a planning permission arose under Section 26 of the Local Government (Planning and Development) Act, 1963. The terms related to the proper planning and development of the area.
The development of land adjacent to the land to be developed, where both were owned by the same developer, had to be "for the purposes or in connection with" the development which was the subject of the permission. Mr Justice Hardiman said these restrictions required to be strictly construed.
He said Ashbourne had contended that the public access condition was a contrivance to avoid the expense, responsibilities and possible liabilities which would or might follow the creation of a statutory right of way.
Mr Justice Hardiman said the condition to provide public access appeared to be an onerous one, especially having regard to the fact that among the areas to which access was required to be given was a cliff-face.
Maintenance by the county council of a right of way above the cliff-face would be regarded as onerous and expensive and, perhaps, impossible to insure.
The judge held there was substance in Ashbourne's submission that the question of public access to the Old Head of Kinsale had nothing to do with the clubhouse, the access road or the equipment shed which were the developments requiring permission or retention.