The controversy over proposals for public access to the Old Head of Kinsale is to go to the Supreme Court. A High Court judge yesterday certified a point of law of exceptional public importance arising from legal proceedings taken by the owners of an £8 million golf course on the Old Head.
Mr Justice Kearns has asked the Supreme Court to decide whether Cork County Council, without exercising the specific statutory powers for the creation of a public right of way, could impose a condition on Ashbourne Holdings Limited, owner of the golf course, which effectively created a public right of way.
When AHL, of South Mall, Cork, applied in 1997 for the retention of planning permission for the course club house and ancillary facilities, certain conditions were imposed by the planning authorities. Ashbourne challenged the conditions.
Last March, Mr Justice Kearns overturned a condition stipulating that AHL should provide access at all times during daylight hours for the public to a lighthouse at the southern tip of the headland and access to cliff paths and cliff edges for interest groups.
The judge noted this access was not by means of dedicated paths or routes and found it would effectively allow the public to wander over the playing areas of the golf course. This was so "manifestly unreasonable" as to render "potentially inoperable" the use of the headland as a golf course.
The judge upheld another condition requiring AHL to maintain and preserve the ruins of de Courcey Castle which is located immediately beside the entrance to the development. He also upheld a third condition where the public was to be provided with access via a gravel path between the ruins of de Courcey Castle and a picnic area near the old lighthouse compound on the northern rim of the headland.
The judge held that condition was neither irrational nor manifestly unreasonable for reasons which included the fact that it had been offered by AHL and was a limited form of access via a dedicated path at a location on the headland which did not impinge or interfere grossly with the ability to operate the golf course.
In his decision yesterday, the judge noted the form of public access imposed by this third condition had the characteristic of a newly-created public right of way and that Cork County Council had not followed the statutory procedures appropriate to the creation of a right of way.
The council had decided not to follow statutory procedures and had entered into an agreement with the developer to create a right of way on terms.
In the way they imposed the condition, the council had shifted responsibility onto the developer to provide a designated form of public access in the nature of a right of way, maintain it and charge the public to use it. This was subject to a requirement that the charge should not exceed insurance and administration costs and could not be increased without the council's consent.
He said the court accepted AHL's argument that the imposition of such a condition operated to circumvent the existing statutory provisions while at the same time depriving AHL both of compensation and the right to derive a profit from its ownership of the property. He had found the charging provisions attached to the condition were void.
Mr Justice Kearns said he was seeking the Supreme Court's view on this course of action by the council.
He was asking the Supreme Court to decide "whether or not a planning authority, where specific statutory measures exist and are available for the creation of a public right of way, may nonetheless choose to impose a condition which for all practical purposes creates a right of way but which not only avoids the usual consequences which attend the exercise of the specific statutory powers, but which also imposes further attendant obligations on a developer".
It seemed to him a point of law of exceptional public importance and public interest did arise where uncertainty as to the powers of a planning authority in such a vital area may be shown to exist, the judge said.