Two men have taken High Court proceedings against Kerry County Council aimed at overturning a decision limiting housing development on a road with panoramic views over Dingle harbour.
John Moore, a businessman, and Brendan O'Connell, a vet, own lands adjoining High Road, also known as Goat Street, in Dingle.
They are seeking to overturn the council’s rejection of a proposed material alteration to the local area plan which would have reduced from 30 to 15 metres a landscape protection area (LPA) adjoining High Road.
Their case is advanced on grounds including a claim that a Fianna Fail councillor, Breandán Fitzgerald, allegedly had a potential conflict of interest when he voted against that proposal.
High Road contains several B&Bs and other tourist accommodation and the intention of the LPA is to preserve the views of the harbour from High Road.
Mr Moore, currently living in the UK, and Mr O'Connell, of Barr na Coille, Dingle, say Cllr Fitzgerald lives in a B&B premises owned by his mother across the road from the lands subject of the proposed material alteration, which they say would potentially have permitted more housing development in the area.
It was among some 50 material alteration proposals to the local area plan.
The material alteration proposal at issue, No 49, was rejected by four votes to three at a meeting of the Corca Dhuihne-Castleisland Municipal District held in December 2020 to consider the draft Corca Dhuibhne Local Area Plan (LAP). Cllr Fitzgerald was among the four councillors who voted against it.
On April 29th last, the final LAP, which did not contain No 49, was adopted by councillors.
When the application for leave to bring the judicial review proceedings first came before Mr Justice Charles Meenan, he directed it be made on notice to the council.
Last week, after the judge was told the council opposes leave, the matter was adjourned to December on consent of the parties. Cllr Fitzgerald is a notice party to the proceedings.
‘Collateral attack’
In opposing leave, the council contends the applicants’ case is an “impermissible collateral attack” on the 2020-2026 LAP as actually adopted by elected members on April 29th last.
It says the applicants have not sought to challenge the adoption decision but instead seek to impugn the prior decision of members of the municipal district not to proceed with material alteration No 49 of the draft LAP.
The challenge is essentially concerned with amendments to what was then the draft plan without any challenge having been made to the actual plan as adopted subsequently, it says.
In an affidavit, Mr Moore, a businessman with an address at Queen’s Terrace, King’s Road, Windsor, said he, through a firm of engineering and planning consultants, made submissions during the consultation period for the plan. His submission concerned his interest in a site at “The Wood”, Dingle, which he inherited in 2017 from his late father.
The 30 metre LPA encroaches onto about half of his site and his concern was it would seriously curtail the prospect of constructing houses of “any reasonable footprint” on the site. They would have to be set back from High Road which would limit the amount of private amenity space that could be provided, he said.
While he currently lives in the UK, he intends to return to Dingle, where he grew up, and build a family home on his site and he believed the 30 metre LPA is “excessive”.
Under the council’s code of governance, and code of conduct for councillors, Cllr Fitzgerald was obliged, where there was a potential conflict of interest, to recuse himself from the vote on Material Alteration No 49, he claims.
