The High Court has dismissed challenges to planning permission and a compulsory purchase order for the South Kerry Greenway, except for claims seeking declaratory relief on publication requirements and the transposition of an EU environmental directive. Those claims were adjourned to a second module of the proceedings.
In a judgment delivered on 12 July 2021, Mr Justice Humphreys ruled on applications brought by James Clifford and Peter Sweetman, and by Denis O’Connor, Christy McDonnell, Mary O’Neill McDonnell and the Greenway Information Group. An Bord Pleanála, Ireland and the Attorney General were respondents, with Kerry County Council as notice party.
The council had sought permission for a proposed 31.93km route between Reenard and Faha West, and confirmation of a compulsory purchase order. The board approved the project and CPO in November 2020, omitting two sections pending further investigation of environmental impacts. The permission was also subject to conditions, including ecological surveys before construction.
The judge rejected the challenges to the CPO, finding, among other things, that the board could acquire ownership rather than a lesser right of way, and that the project qualified as a cycleway under the Roads Act. He also found that the board had separately considered the CPO and development consent, and that the pleaded challenges to the acquisition and assessment did not establish grounds for relief.
The court also rejected arguments concerning fair procedures at the oral hearing, the handling of four errata documents, inadequate reasons, and the assessment of environmental impacts. The judgment said the errata documents had been read into the hearing record and a long adjournment gave applicants time to consider them. The judge found no basis to quash the decision over the alleged failure to publish certain materials: the applicants had not said they were unable to make submissions, and the court considered declaratory relief, rather than certiorari, the appropriate route for the publication issues.
A separate motion seeking to cross-examine a deponent about amendments to the inspector’s report was dismissed. The judge said the board had clarified how the report was amended and the applicants had not shown a material issue that remained unanswered.
The court left for a later module claims concerning alleged non-transposition of the EIA directive and alleged breaches of public information requirements under the Roads Act. That module was set to begin on 16 November 2021. The judgment said the judge was provisionally minded to discharge the stay on development once the order was perfected, unless submissions were made against doing so. The judgment does not record the outcome of that later module or whether the stay was discharged.