Kerry council very concerned over impact of court challenges to greenway

Kerry County Council is very concerned about potential tourism, health and funding implications of two separate legal challenges to planning approval for a proposed 32km cycle and pedestrian greenway in south Kerry, the High Court has been told.

Arising from those concerns, Esmonde Keane SC, for the council, applied on Thursday for the earliest possible hearing of the challenges over An Bord Pleanala’s approval of November last.

Despite objections from lawyers for the applicants in both actions, Mr Justice Richard Humphreys provisionally fixed March 9th for the hearing of both cases.

The judge had earlier on Thursday fixed a date in late June for the hearing but, after Mr Keane’s intervention, he agreed to fix March 9th.

Due to pressures on the court’s strategic infrastructure list, no other hearing dates were available up to the end of June, he said. A March hearing required moving at “breakneck speed”, he added, fixing the cases for further case management next week.

The judge fixed the March provisional hearing after formally granting permission to a local farmer, James Clifford, and environmental activist Peter Sweetman to bring judicial review proceedings with a view to quashing the board’s grant of permission to the council for the greenway development.

The applicants, represented by James Devlin SC, with Margaret Heavey BL, instructed by solicitor Brian Harrington, also obtained a stay on works concerning the greenway subject to the respondent having liberty to apply at 72 hours notice to lift or vary that.

The judge also on Thursday granted leave to bring the second challenge, taken by a number of local landowners whose lands have been compulsorily acquired for the greenway. Permission to bring that second challenge was granted without prejudice to the council’s entitlement to raise certain issues.

Michael O’Donnell BL, for the landowners, argued their action is complex and he was very concerned there would be insufficient time to have it ready for hearing by March 9th. Given the Covid-19 emergency, he could not see how the council could be prejudiced by having the matter heard in June, he said.

Mr Devlin, for Mr Clifford and Mr Sweetman, also expressed concern about the logistics of being ready for a March hearing and said he was “at a loss” to understand how the challenges could have health or funding implications, as Mr Kean had argued.

Mr Devlin said the original proposal for the greenway was for a continuous 32km stretch but “chunks” had “somewhat surprisingly” been taken by the board out of that, resulting in a “different” project. That in turn lead to some of the grounds of his clients’ challenge, he said.

While the council had said the cases were significant for it, the greenway was also significant for Mr Clifford, who lives locally, counsel said. While Mr Sweetman did not live in the area, his concern is about the significant environmental issues raised, counsel added.

Both actions concern the proposed greenway between Glenbeigh and Caherciveen, to run mainly along the disused route of the Great Southern and Western Railway which operated from 1892 to 1960. It will include a 3m wide paved surface.

In their case, Mr Clifford and Mr Sweetman claim the board’s decision contravenes EU directives on Environmental Impact Assessment (EIA) and Habitats on grounds including it failed to ensure a system of strict protection for the Kerry slug and the Lesser Horseshoe bat in their natural range.

The core claim against the State parties is of failure to transpose into Irish law an obligation to determine if a road should be made subject of an EIA.

In their challenge, the local landowners raise issues about the process resulting in the confirmation of compulsory purchase orders for part of their lands.

Both actions are against the Board and State with Kerry County Council as a notice party.