The Supreme Court has dismissed an appeal by Kerry farmer Jeremiah Brick over his attempt to challenge a compulsory purchase order affecting part of his land beside the main Tralee-Killarney road.
Mr Brick farms at Carbaragh, outside Tralee. Kerry County Council’s N21 Road Improvement Scheme Ratas to Ballycarty compulsory purchase order included 0.735 hectares of his land.
The council made the order on January 31, 2001. Mr Brick objected and later sought an adjournment of an oral hearing, but that request was refused. The hearing proceeded on June 6, 2001, with Mr Brick represented by counsel.
An Bord Pleanála confirmed the compulsory purchase order on July 4. By then, Mr Brick had begun judicial review proceedings challenging aspects of the oral hearing. He later sought to extend those existing proceedings to include an order quashing the Board’s confirmation of the CPO.
That application was struck out by the High Court on October 22, 2001. Mr Brick appealed, arguing among other things that the motion had only been listed “for mention” and that his counsel was not given a proper opportunity to prepare and argue the application.
Ms Justice Denham accepted that there had been an absence of opportunity for counsel to fully present the case and said there was, prima facie, a breach of the right to be heard.
However, the Supreme Court held that this did not change the legal outcome. Section 50 of the Planning and Development Act 2000 required a specific statutory procedure for challenging the Board’s decision. Extending an existing ordinary judicial review did not satisfy those requirements.
The court therefore found that the High Court’s order striking out the application was legally correct and that sending the matter back could not produce a different result. The appeal was dismissed, although Denham J noted that the manner in which the High Court hearing had proceeded could have consequences for costs.