Condition 26 of planning permission P98/655 states that before the development commences on site the Developer shall ensure that all other legal entitlements including Rights of Way through the property are extinguished or otherwise catered for. According to the complainant, this has not been done despite numerous letters to the Council. (While this matter also related to the Doonbeg golf course development, it was unrelated to the April 2002 planning applications).
The Council's Response
The Council stated that Condition No. 26 of the decision of the Council, as the Planning Authority, dated 17th November, 1998 is not the relevant Condition here. The determination by An Bord Pleanála of 29th July 1999 is the relevant permission and the corresponding condition in its determination is Condition No. 10, which differs from that of the Council. The Council stated that the complainant was referring to public rights-of-way at and over the Golf Course. It referred to its letter to him of 16 October 2003 which, in turn, referred to a further letter from the Council to Carrowmore/Caherfeenick Right of Way Action Group dated 2 April 2003 and which it stated was available on Planning File P98/655.
The Council also referred to a Warning Letter which it had issued on 23 June 2005 against Doonbeg Golf Club Ltd concerning the laying of a gravel path / road from the Caherfeenick Road into the golf course, the construction of a stone wall obstructing a public right of way and the raising of ground levels on the right of way. The Council and An Bord Pleanála had determined under section 5 of the Planning & Development Act, 2000 that the works specified in the Warning Letter were development and not exempted development. The Council stated that enforcement proceedings had not been issued to date as the Council's solicitor had advised against doing so. This advice arises from the fact that Doonbeg Golf Club has lodged judicial review proceedings against An Bord Pleanála in respect of the Board's decision which stated that the development was not exempted development. The Council stated that the judicial review proceedings have not, as yet, been heard in the High Court.
The View of this Office
It appears that the decision of the Council made on 17 November 1998 was subject to appeal to An Bord Pleanála and that An Bord Pleanála made its decision on 29 July 1999 and, thus, it would be the decision and conditions imposed by An Bord Pleanála that would apply. It is noted that Condition 10 of the decision of An Bord Pleanála provides:
"All site development works including the provision of public access to the beach, footpaths, surface treatment of the circulation areas, lighting, disposal of surface water, location of services and design of the access point shall be to the requirements of the planning authority."
It is also noted that in the letter of 2 April 2003 referred to above, the Council stated it was satisfied that the public right of access to the beach has been secured on the basis of the alternative access and car park provided at the Mountrivers end and also the continued pedestrian right of access at the Caherfeenick Road end. It also stated that where matters are in dispute in relation to the extent of the right way over private property, this is a matter for the Courts to determine and it is not a function of the Council to determine such disputes. It also stated (in the letter) that it was not open to the Council to undertake work on private property and that the undertaking of any such works is a matter for the owner of the property. It stated further that in undertaking any works, all statutory processes including any requirements for planning permission or consultation with statutory agencies, such as Dúchas, must be undertaken. It would appear that the Council was satisfied that the public right of access to the beach had been secured.
In relation to, among other things, the blocking of a right of way with a stone wall during construction works, there is a dispute about the planning status of these developments. In the light of the pending judicial review proceedings initiated by the developer, it would appear that the Council's position is that it will not issue enforcement proceedings. In the circumstances its position does not seem unreasonable.