The Supreme Court held that An Bord Pleanála acted outside its statutory powers when it imposed public access conditions on planning permission for buildings and works at the Old Head of Kinsale. The court rejected the Board’s appeal and left in place the High Court’s decision to quash the challenged conditions.
Ashbourne Holdings Limited owned the Cork lands, where it had developed a golf course. The judgment records that the golf course was an exempt development and did not require planning permission. In 1993, the Board granted permission for a clubhouse, an ancillary equipment building and associated works. After some works departed from that permission, Ashbourne sought retention and completion permission from Cork County Council. The Board’s 1997 decision included conditions requiring public access to parts of the headland and setting terms for access and charges.
Ashbourne obtained leave to seek judicial review in 2000. In March 2001, the High Court quashed the conditions. The Board appealed to the Supreme Court on certified points of law, including whether it had power to impose them and whether Ashbourne was precluded from challenging them because of the earlier planning history.
Delivering judgment on 10 March 2003, Mr Justice Hardiman said the relevant statutory power required a condition concerning adjoining land to be expedient for the purposes of or in connection with the permitted development. The clubhouse and related works were facilities for golfers, while the access conditions created a new public use of the golf course lands. The Board had not shown how public access advantaged or was connected with the clubhouse development. The court held that the conditions were ultra vires and void; the conditions that depended on the main access condition were also invalid.
The court also rejected the Board’s argument that the 1993 decision had settled the issue. The 1997 application arose after the County Council treated the works as a material breach and required a retention application. The Board reconsidered the conditions on their merits, and the question of its power to require public access had not been argued in 1993. The judgment concluded that Ashbourne was not estopped from challenging the conditions.
Because the conditions were outside the Board’s powers, the court also declined to refuse relief on discretionary grounds such as Ashbourne’s earlier willingness to facilitate access or its failure to challenge the 1993 conditions. It did not need to decide whether the conditions were also vague or unreasonable. The judgment’s observations about safety risks near cliffs were expressly unnecessary to the decision.