High Court rejects legal challenges to 27km south Kerry greenway

Challenges claimed EU directives had been contravened and also queried CPO process

A High Court judge has rejected claims that a planning approval for a 27km cycle and pedestrian greenway in south Kerry is invalid.

Mr Justice Richard Humphreys, in a judgment on Monday on two separate challenges to the development, ruled the permission is valid.

He will hear a further module in the case in November to address claims Ireland has not correctly transposed the type of road projects that require environmental impact screening and assessment under EU law.

He will also consider claims An Bord Pleanála breached public information requirements of the Roads Act regarding inadequate publication, on its website and in local newspapers, of material and of its decision.


Whatever the outcome of that module, it will not impact on the validity of the permission decision, he stressed.

Because of that, he said he is “provisionally minded” to discharge the stay on the works after final orders arising from his judgment are made. He will hear submissions in that regard later this month.

Kerry County Council had sought permission for a 31.9km greenway between Glenbeigh and Renard.

Last November, the board granted permission for a 27km greenway between Glenbeigh to just outside Cahersiveen, to run mainly along the disused route of the Southern and Western Railway.

It will include a 3 metre wide paved surface and 122 different types of intersection with other routes.

Lesser horseshoe bat

The permission is subject to several conditions, including an ecological pre-construction survey to check for the presence of protected species, including the Kerry slug and lesser horseshoe bat, and for those to be relocated to a similar habitat, subject to a derogation licence where required.

That permission was subject of two challenges, one by a local farmer, James Clifford, and environmental activist Peter Sweetman.

The second was by a number of local landowners whose lands have been compulsorily acquired for the greenway.

The cases were against the board and various State parties, with the council a notice party.

The grounds of challenge in the Clifford/Sweetman case include claims the permission contravened EU directives on Environmental Impact Assessment (EIA) and Habitats and failed to ensure a system of strict protection for the Kerry slug and lesser horseshoe bat in their natural range.

The landowners raised issues about the process resulting in the confirmation of compulsory purchase orders (CPOs).

In his judgment, the judge rejected arguments of incorrect use of the Roads Act by the council in acquiring the lands for the project or that the processes of CPO and development consent were improperly combined.

A separate order was made in relation to the CPO and there are separate CPO-related reasons, he said.

He rejected arguments the CPO was disproportionate and he found the interference with the landowners property rights was taken in a lawful manner in the public interest.

There was no error in the council looking at economic and population decline in the region in determining whether there was a public need for the CPO, he held.

The judge dismissed various other grounds of challenge, including claims of a lack of reasons for the board’s approval decision.

Cattle grids

The court, he stressed, is not concerned with whether the greenway itself, or imposing 32 double sets of cattle grids on it, is “a good idea or not”.

The board, he noted, seemed not to have given any objectifiable consideration to whether the concerns of the landowners over straying cattle had any reality or not. It seemed the council did not share that concern, he said.

The board inspector had said such cattle grids are used on the Great Western Greenway but the information concerning that was not comprehensive, he said.

While it is desirable for the board to make explicit reference to relevant objective standards, failure to do so is not automatically a basis to quash a decision, he said. For reasons including the point was not adequately pleaded, he refused to quash the permission on that basis.

Various grounds of challenge based on alleged breach of EU law, including failure to establish a system of “strict protection” for the Kerry slug, were also rejected. The establishment of a strict protection system is a matter for the State and an individual planning decision cannot be condemned for failure to establish it, he said.

He rejected claims there was no proper assessment of the impact on farming or that the omission of a section of the greenway amounted to “project splitting” contrary to the EIA Directive.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times