The High Court has dismissed a judicial review brought by Goodwill Housing Co-operative Society Limited against Kildare County Council’s decision to extinguish a public right of way between Moore Avenue and Millfield in Newbridge.
The judgment, delivered by Mr Justice Noonan on 30 April 2015, concerns a pedestrian walkway of about 40 metres linking the Millfield housing development with Moore Avenue. The council began the statutory process to extinguish the public right of way after residents raised concerns about anti-social activity around the walkway.
The council received written objections, including submissions from the housing co-operative and the National Transport Agency, and held an oral hearing in May 2013. The hearing officer recommended extinguishment, describing the walkway as substandard, unlit and unsuitable for its location. In September 2013, the council approved the proposal, subject to a condition that a link road through an industrial estate be completed to the council’s satisfaction before extinguishment took effect.
The co-operative asked the court to quash the council’s resolution, arguing, among other things, that it infringed private property rights, conflicted with local and county development plans, and was based on information that omitted relevant material. It also challenged the notification of the decision, the condition tying its effect to completion of the link road, and the absence of a published notice of extinguishment.
The judge said the co-operative had not produced evidence establishing a proprietary interest in the walkway. He added that any private interest it could establish would not, by itself, invalidate the council’s decision to extinguish the public right of way. If the council later closed the walkway in a way that excluded the co-operative or its licensees, the co-operative could seek appropriate injunctive relief if it established title.
The court rejected the argument that the decision breached the Newbridge Local Area Plan’s commitment to preserve existing pedestrian routes, finding that the walkway did not exist when the plan was adopted in 2003. It also found no established material contravention of the local area plan or county development plan.
The judge said the hearing officer was not required to list every submission in his report. The National Transport Agency’s objection had been referred to in the executive summary of objections provided to council members, and the members were not misled. A wrong decision date in the council’s notification letter caused no prejudice, the court found.
The condition on the link road did not make the decision vague or uncertain because the road had to be completed to the council’s satisfaction. The council had not breached the statutory publication requirement: that notice was required after the right of way was extinguished, and it had not yet been extinguished.
The court dismissed the application, concluding that the co-operative had not established any of the grounds on which it had been granted leave to seek judicial review. The judgment did not determine ownership of the walkway or whether the co-operative could establish a private right over it.