The High Court refused Thomas Harding leave to challenge Cork County Council’s decision to grant permission for a large tourism resort at Preghane, Ballymacus, near Kinsale, finding that he had not established the substantial interest required under planning law to bring the case.
Mr Justice Clarke delivered judgment on 12 October 2006. The application was at the leave stage of a proposed judicial review of the council’s 17 October 2005 decision concerning a development by Xces Projects Limited, then known as Kinsale Harbour Resort Developments Limited. The scheme included a hotel, golf course, equestrian facilities and 192 resort lodges or apartments. The decision was subject to planning reference 04/9262.
Harding, a professional sailor and retired merchant seaman, said he had grown up in Ballymacus, lived in Kinsale and regularly visited the headland by land and sea. He also cited family connections to the area, including relatives who owned nearby houses and land. The judge said Harding could not rely on his relatives’ own interests to establish standing. His personal connection, the court concluded, was more than that of a bystander, but did not meet the stricter “substantial interest” test under the Planning and Development Act 2000.
The judge acknowledged the scale of the proposed development and its likely material alteration of the headland. He said that scale could widen the group of people capable of establishing a substantial interest, but did not bring Harding within that group on the evidence in his affidavits.
The council and the developer had also argued that an appeal to An Bord Pleanála was an adequate alternative remedy. The judge was not satisfied that this had been established at that stage. Harding alleged, among other things, that revised plans substantially changed the application, that public consultation on those changes was inadequate, and that the council’s handling of further information and revised plans breached planning rules and fair procedures. Those were allegations, not findings on their merits.
Clarke said that if the cumulative effect of the alleged process failures were later established, it might show that Harding had been substantially denied a proper opportunity to participate before the council. He therefore left open whether an appeal would be adequate, explaining that he would have revisited that question after assessing the individual grounds if Harding had standing.
Because he found that Harding lacked standing, the judge did not assess whether any of the proposed grounds met the substantial-grounds threshold for judicial review. He refused leave. The judgment did not determine the lawfulness of the council’s planning process or the merits of the proposed resort.