Amid allegations that there is a "golden circle" in Co Donegal planning, Frank McDonald, Environment Editor, investigates a case at Malin Head
A Donegal builder and member of the Fianna Fáil national executive managed to get planning permission for four holiday homes near Malin Head on a site where plans for a single house had previously been refused.
The case was cited by a senior Donegal County Council planner, Ms Gaye Moynihan, as an example of the "very strong perception" among people living in the area that "outsiders can get permission more readily than locals".
In a letter to another senior council official in April 1999, she wrote: "This case has been raised so often and appears so extreme that I believe that an objective, neutral examination of what happened and why must be carried out."
Mr James Doherty, the original owner of the five-acre site at Port Ronan, had been told by the area planner that he "wouldn't even be allowed to till it".
Believing it had no development potential, he sold it to the builder, Mr Michael Kelly, for £30,000 in 1996.
Mr Doherty had earlier agreed to sell part of it, a site of half an acre, to a Northern Ireland resident, Mr Stephen McCartney, subject to planning permission. However this deal fell through when the council refused to approve his plans for a bungalow in December 1992.
While this application was under consideration, the council asked Mr Doherty if he would enter into a section 38 agreement under the 1963 Planning Act to "sterilise" the remainder of the field, so that it would not be the subject of further plans.
He was prepared to agree.
Even so, a refusal was issued. The reason given by the council was the site's location in a prominent position adjacent to a scenic route on the shores of White Strand Bay in an area which has been designated as one of especially high amenity.
"The proposed development would be out of harmony with the open rural character of the area and would create an unduly obtrusive feature on the landscape, thereby seriously injuring the scenic quality and visual amenity of the area," the planners said.
After Mr Kelly bought the site, however, he got planning permission in March 1997 to build four holiday homes there, despite objections from an environmental health officer on public health grounds and Dúchas, the Heritage Service, on amenity grounds.
Mr Kelly, who is based in Donegal Town, had sought permission for nine holiday homes on the site but was advised by the area planner, Mr Denis Kelly, that it was "unlikely that planning would be granted on amenity grounds" for such a development.
Before the scheme for four houses was approved, for reasons which are unclear from the planning file, Mr Liam Kelly, assistant county manager, queried "how could we grant four on the same site" where one house had previously been refused.
Solicitors acting for the original owner, Mr Doherty, subsequently wrote to the county council saying their client was "somewhat bemused" by the decision, given the planning history. The council replied that the four houses were in a different part of the field.
Less than a week later, in May 1999, Mr Jim Harley, acting senior executive planner, wrote to the assistant county manager pointing out that he owned a house at Port Ronan and had obtained a right of way from Mr Michael Kelly to gain access to it.
He denied local allegations that he had "influenced the decision on the four houses", saying he had "no input whatsoever".
Given his arrangement with Mr Kelly, he also asked if it would be prudent for him not to involve himself in the latter's planning applications.
He was told by an acting county engineer that "in view of present prevailing circumstances, it is considered that you should not deal with any planning applications from Mr \ Kelly in any location in the county during the current year, 1999, and thereafter in locations in Malin adjacent \ your site".
Mr Harley and his wife Sheena, who live in Mellmount Park, Strabane, Co Tyrone, had secured planning permission from the council to build their holiday home on a coastal site in Port Ronan in November 1995 and approval to extend it by 38 sq metres in February 2001.
Though he had secured a right of way from Mr Kelly at the time of his first application in 1995, it was not declared in the council's register of interests of elected members and officials. The first official indication of this interest was made four years later, in his May 1999 letter.
The county manager, Mr Michael McLoone, said Mr Harley's application in 1995 had shown the right of way.
He also said a senior officer had carried out a review of planning cases in the Malin Head area and "did not find any evidence which would give rise to concern".
Mr McLoone said that "No action was necessary" on serious allegations about planning in the area made in an affidavit by former senior executive planner, Mr Gerard Convie, as he had withdrawn all allegations when his High Court action was settled last year.
Mr Convie, who had been suspended from his post over his involvement in a land deal in Magheroarty, claims that on his last day at work in the council, he was approached by a councillor and asked to investigate the situation in the Malin Head area.
"I said I would do so, but later that day I was told to go on leave. I don't know what happened after that, but if there was an investigation I wasn't asked what I knew about the situation," he told the Donegal Democrat.
It was Mr Harley who took over his post.
In March 1999, the council complained to Mr Kelly that considerable excavation was taking place on his Port Ronan site, with large volumes of material being removed, despite a condition specifying that "ground levels . . . shall not be raised/lowered without prior agreement".
The matter was investigated by Mr Denis Kelly, the area planner, who noted that he had been requested by Mr Harley to deal with "minor" amendments to the developer's original plan "as he [Mr Harley] has advised that he owns a house in the vicinity".
He found that the excavation had created a "very strident . . . cliff-face scar" in the landscape of this "sensitive coastal location". However, he concluded that the amended layout of the four houses then being proposed should minimise its environmental impact.
Mr Harley personally dealt with another planning application in the area adjoining his own site in Port Ronan. Seeking approval for three dormer bungalows, it was submitted by Mr Philip Doherty, a local man, and granted in June 2001, subject to seven conditions.
Mr Michael Kelly says he bought the site from Mr Doherty as a "ready-to go package" and then built the three houses, which are selling for €190,000 each. He also told The Irish Times that he had no plans "at the moment" to build more holiday homes in the Malin Head area.
Mr Kelly first got involved in holiday homes in Port Ronan a number of years ago, when he built two houses on a site adjoining Mr Harley's, one of them for his own use. Dr Michael Woods TD, a former Fianna Fáil minister, who is a friend, regularly stays there.
Mr James Doherty still feels "hard done by", saying he "got a very raw deal from the planners." When he raised this with Mr Kelly, who has been a member of the Fianna Fáil national executive for more than 10 years, "he told me I hadn't gone about it in the right way".
Mr Michael Kelly said the piece of land in the failed 1992 planning application on Mr Doherty's land was "sticking out like a sore thumb".
Asked if there was a "golden circle" in Donegal planning, he said: "I don't see any golden circle. You don't get anything you're not entitled to."