Golf club challenges duty to ensure access

The developers of an exclusive £8 million golf course at the Old Head of Kinsale, Co Cork, have taken a High Court challenge …

The developers of an exclusive £8 million golf course at the Old Head of Kinsale, Co Cork, have taken a High Court challenge to planning conditions obliging it to ensure public access to the nearby lighthouse and cliff paths.

Ashbourne Holdings Ltd, South Mall, Cork, said it was prepared to provide public access on the basis that it was provided by choice and without obligation. Ashbourne Holdings, which developed the golf course some years ago, is objecting to conditions relating to planning permission for a clubhouse car park allowing public access to the nearby lighthouse and cliff paths.

The proceedings, before the President of the High Court, Mr Justice Morris, have been taken against An Bord Pleanala and Cork County Council.

The company is seeking an order quashing a Bord Pleanala decision of October 31st, 1997, rejecting Ashbourne's appeal against certain conditions attached to the planning permission granted by the county council in June 1997.

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Ashbourne Holdings submits it had sought permission for the retention and completion of a golf clubhouse, car park and access road at Downmacpatrick/Old Head. The conditions imposed by Bord Pleanala included a stipulation that access "shall be provided at all times during daylight hours for the public to the lighthouse and the area marginal to the neck and the northern ruin of the headland to the old lighthouse".

Other conditions stated that access to the cliff paths and cliff edges for interest groups "shall be made available" in accordance with details to be submitted to the planning authority.

Another condition said any charge for access by the public to lands south of the new gateway "shall not exceed the reasonable cost of insurance and administration of entrance control". Ashbourne Holdings claims the clubhouse is located on a golf course, which has been developed and is functioning. It says An Bord Pleanala had previously concluded, in May 1993, that the development of a golf course was exempted development. Both the golf course and clubhouse were located on private property.

The company claims the imposition of the conditions was based on the "erroneous" assumption that the public had rights over the lands and that the conditions were designed to protect such purported rights. One of the conditions required the company to provide public access over a roadway that was not owned by it.

In an affidavit, Mr John O'Connor, Boolakeel House, Ballinskellings, Co Kerry, said the golf complex had been run by his company as a private commercial exercise and had involved an investment in the region of £8 million. The development was carried out wholly on private property. "It does not interfere with public rights because the public does not have any rights over the property," he submitted.

The imposition of conditions regarding public access would interfere with the use of the land as a golf course and would certainly impede them in endeavouring to obtain a return on their investment. The access conditions required access to be provided over a roadway owned not by the company but by the Commissioners of Irish Lights, it was submitted. The company only had a right-of-way over it. Mr O'Connor said the company was aware the Old Head of Kinsale was especially scenic and had aesthetic and amenity value. It was the company's intention to provide access to the public and special interest groups on the footing that such access was provided as of choice and without obligation.

In another affidavit, Mr Brian Archer, senior executive planning officer, Cork Co Council, said that none of the conditions implied that a public right of way existed.

The hearing continues today.