The High Court has dismissed a judicial review brought by 27 Killarney jaunting-car operators over a requirement that their vehicles carry approved dung-catching devices to enter Killarney National Park on their routes from the town.
In a judgment delivered on 13 May 2010, Mr Justice William M. McKechnie held that the condition was within the powers conferred by the Bourn Vincent Memorial Park Act 1932. He also ruled that the operators could be refused entry if they did not meet the permit condition. The court dismissed the action.
The National Parks and Wildlife Service introduced the condition in 2009 after a consultation process that included seven meetings, trials of road sweeping and dung-catching devices, and consideration of objections about animal welfare, safety and suitability. The judgment says the Service obtained ministerial approval in February 2009 and notified the operators that the requirement would take effect on 8 June. The Service offered to cover the devices’ initial cost and made further advice and training available.
The operators refused to adopt the devices and continued to use the Park. On 14 July 2009, the Service placed removable bollards at access points. An interim injunction briefly restrained the Service from barring access, but that order was discharged on 29 July. The judgment said that, apart from one operator, the jarveys had refused to sign up and remained outside the Park when the substantive case was decided.
The operators argued that neither the 1932 Act nor the Park’s 1971 bye-laws authorised the condition or exclusion from the Park. They also raised delegation, fairness, discrimination and the right to earn a livelihood. The judge found that the Act gave the responsible authorities broad powers to manage and maintain the Park for public recreation and enjoyment, including setting conditions for permit holders. He said the bye-laws’ permit system made compliance a precondition to entry, and that access restriction was lawful in the circumstances.
The court rejected the comparison with operators on the Gap of Dunloe routes and with people riding or trekking horses in the Park, finding their use differed in scale, frequency or location. It also rejected the livelihood claim, stating that the operators had no right of access to State-owned land for business without permission.
The judgment did not decide whether the devices were suitable or whether the operators’ animal-welfare and safety objections were factually justified. It said those merits were not raised in the judicial review. The court also found the claim that the 1971 bye-laws had not been laid before the Oireachtas factually incorrect on the evidence presented.