Couple win challenge over gate to access Co Kerry lake

A couple have won a High Court challenge to a Bord Pleánala decision over use of a laneway beside their home which has been at the centre of a long running row over access to a lake.

Cornelius and Suzanne Dennehy, who live and farm near Fossa village in Co Kerry, were entitled to an order quashing the August 2018 decision of the board declaring that a gate they erected at the entrance to lands they own requires planning permission.

The lane leads down to the shore of scenic Lough Leane and links to the N72 Killarney-Killorglin Road. It also provides access to a number of houses and to the Loch Lein Country House Hotel, owned by Dr Donal Coffey.

The Dennehys’ judicial review proceedings were against the board, the Minister for Housing Planning and Local Government and the State over the decision. Dr Coffey was a notice party.

Mr Justice Charles Meenan, in a judgment delivered on Tuesday, was satisfied the board erred in law in failing to correctly consider a Circuit Court decision which found there was no right of way of the Dennehy land.

The failure to consider the Circuit Court decision made the planning board’s decision unreasonable or irrational, he said.

The court heard that land on one side of a lane had been a traditional boaters’ access to the lake and is owed by the Dennehys and on the other side by Sir Maurice O’Connell.

In 1989, Mr O’Connell no longer wished to facilitate the activities of the local Fossa Rowing Club as he had done in providing access for the club.

Three members of the club approached Mr Dennhey and got permission to walk over the Dennehy land to get to the lake. “Unfortunately, this was the start of the trouble”, Mr Justice Meenan said.

Mr Dennehy claimed some members of the club exceeded their permission and insisted they had a right to use it. The Dennehys erected a gate to prevent trespass in 2010 and no trespassing signs were also erected.

But by 2012 there were increasing incursions which became confrontational and gardai had to be called.

Public events were organised seeking to establish the existence of a public right of way over the laneway, not only by the Fossa Rowing Club but also by other organisations such as the “Fossa Way Committee” and the “Men’s Shed”.

“These organised public events cannot have been anything other than frightening and intimidating for the applicants (Dennehys) and their family,” the judge said.

However, worse events occurred with the Dennehys getting an anonymous written threat warning them to leave Fossa. Shots were fired over their home, property damaged and their dog was shot.

The judge said some club members told the Dennehys they disagree with and apologised for what was happening.

Two Circuit Court cases were being brought by that stage, one by Maurice O’Connell, and the other by nominated members of the rowing club. Ultimately, they were both dismissed.

One of the other neighbours, the hotel owner Dr Coffey, then sought a declaration that the gate erected by the Dennehys was not exempt and required planning permission. When An Bord Pleala fnáound it did require permission, the Dennehys brought High Court proceedings which were settled.

The board reconsidered its decision but came up with the same answer and the Dennehys brought a second High Court challenge.

In quashing that second decision, Mr Justice Meenan said the board did not correctly consider the legal import of the decision of the Circuit Court.

Ths error arose from the view taken by the board that, whereas the Circuit Court was concerned with a right of way, the board was not.

The Circuit Court found no right of way and therefore the laneway was not “habitually open or used by the public” as the board had found.

It was not legally permissible for the board to make findings as to the use of the laneway by the public “by ignoring the facts”, as found by the Circuit Court, that people travelling over it without the Dennehys’ consent were trespassers.