The High Court has ordered Michael McElligott to open a laneway from Church Street and remove gates blocking access to it, after finding that the gates were unauthorised development and prevented vehicles from reaching parking required by planning permission for four houses in Tarbert.
In a judgment delivered on 30 July 2021, Ms Justice Niamh Hyland allowed Kerry County Council’s appeal against the Circuit Court’s failure to grant those two remedies under section 160 of the Planning and Development Act 2000. The appeal concerned only the request to open the laneway and remove the gateway. The Council’s separate challenge to the Circuit Court’s costs decision was refused.
The houses at Ross Court were covered by a 2008 planning permission. Condition 12 required vehicle access to be from Church Street and parking to be provided in designated spaces. The court found the gates across the defendant’s laneway prevented vehicle access to those spaces. It also found that the gates had no planning permission and were incompatible with condition 12.
The Council relied on planning and enforcement records, site reports and photographs, as well as evidence from a planning enforcement officer. The judge said the defendant had not contested the evidence that the gates blocked access to the designated parking. He identified no exemption from planning permission and provided no evidence of a practical obstacle to removing the gates.
The judgment recounts complaints from Tarbert GAA users and a parent about parking on Chapel Lane, which was intended for pedestrian access. The judge found that the gates contributed to residents parking on that lane, impeding traffic and adversely affecting people using it to reach the GAA grounds. She rejected the defendant’s claims that the Council was improperly motivated by the club’s interests, finding no evidence of personal animosity or improper conduct.
The Circuit Court had already ordered works to bring the development into compliance with condition 12, with a separate order allowing six months for compliance. The High Court did not reconsider the parking works or decide whether the defendant had complied with that order. The judge noted the parties disagreed about compliance and said she did not need to decide whether the Circuit Court order itself required removal of the gates.
The High Court made an order in the terms of the two requested remedies: open the laneway from Church Street for vehicle access and remove the gateway. It did not disturb the Circuit Court’s costs decision, finding no sufficient basis to conclude that the trial judge had wrongly exercised discretion.