COMMENT & ANALYSIS: Kerry County Council and politicians have welcomed the Supreme Court’s decision not to allow two appeal against the South Kerry Greenway to proceed — the news, however, is wider than just the effect it has on one greenway.
It’s fantastic news for Kerry, but it’s also great news for greenways and walking and cycling routes around the country. It brings legal clarity: Compulsory Purchase Orders (CPOs) are firmly on the table for greenways.
I only got around to reading most of the High Court judgement re on the South Kerry Greenway the other day, and I was left thinking what basis was the appeal at the Supreme Court was happening. It seems that the Supreme Court strongly agreed with the High Court.
According the Orla O’Donnell, RTE’s legal affairs correspondent, in the appeal take local landowners and the Greenway Information Group regarding CPOs planned to be used by Kerry County Council, the Supreme Court ruled that no matters of general public importance had been disclosed and no exceptional circumstances had been shown to arise from the issue.
A separate appeal, not relating to CPOs, by farmer James Clifford and environmentalist Peter Sweetman, the Supreme Court found the applicants failed to identify a legal point upon which it could rule on and had shown no matter of general public importance or exceptional circumstances in the issues raised.
It plain language and to be blunt: The appeals were clutching at straws.
The applicants had went to the Supreme Court after the High Court rejected their case, but in the High Court judgement from Judge Richard Humphreys it was already clear that straws were being clutched, especially on the issue of CPOs.
On the question of if CPOs for greenways amounted to disproportionality, Judge Humphreys pointed to a written submission from An Bord Pleanála and he said that it “demolishes the applicants’ disproportionality argument very effectively”. The An Bord Pleanála quotation is as follows:
“First, is the objective legitimate? Well, the objective is to facilitate the greenway and clearly it is legitimate or more accurately within the competence of the Board to determine as legitimate. Second, are the means at least rationally connected to achieving that end? They are. The means are about taking the land needed for the greenway. Third, is there a less invasive way to achieve the objective? Not here, no, because you can’t have the greenway without the land”.
Judge Humphreys then deals with the issue of community need for the project — as we have written before on the general topic of CPOs for greenways, this is about objecting farmers and other land owners putting their own negative value judgement on greenways and expecting the legal system to back this up.
“The applicants quibble with the reference to community need, but that is only a recognition of the reality and a legitimate consideration. Necessity for compulsory acquisition does not require absolute necessity. It requires a determination that the acquisition is desirable or expedient having regard to public benefits such as the creation of public infrastructure and meeting community need. That involves a judgement as to public benefit and does not require some sort of artificially high threshold like a finding that the existing infrastructure is dangerous.”
A lot of the problems with CPOs and farm land has not been helped by some farm leaders who have deliberately or otherwise mislead farmers and stoked up fears with outrageous claims, such as that farmers would go out of business because of a greenway, and with the idea that the CPO process is reserved for some kind of undefined “essential infrastructure”, which is just not true.
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The compulsory purchase of land is only reserved for the public or common good and greenways meet this requirement by the trailer load — greenways aren’t just good for tourism, and rural development but they are also good for health, the environment, and for giving children, teenagers and the wider community safe routes to walk and cycle on.
Judge Humphreys said that the he right to private property is of course extremely important, but has to yield to the public interest. He also said that it was not established that there was any failure to consider such alternatives or to consider submissions in that or any regard.
The judge said that here was some technical errors in the planning process but that it did not amount to changing the outcome.
The judge also said that it was “not an error to look at population trends and economic trends, and not an error to have regard to such matters in determining whether there is a public need for the compulsory acquisition.”
And Judge Humphreys said it is clear from her report that the planning inspector did not misunderstand the issues around “farm severance”. This again goes back to bluster and scaremongering endorsed for years by farm leaders and a minority of politicians.
After the High Court judgement as outlined above, it’s unclear what the appeal with about except to prove that while many newspapers print scaremongering, the legal system generally needs more than that to step in.
The code of publication of the Code of Best Practice for National and Regional Greenways, which deals with farmland payments and other issues, offers some hope for a way forward.
But, with full knowledge of the code of practice, farmers are again objecting to the western section of the Dublin to Galway greenway.
The wider debate is nowhere near over. And the legal door is not fully closed, but anybody taking it again will likely be warned by their solicitors that there will be costs against you.
Leaders, politicians, and journalists need to play their parts in moving the issue on and not accepting the usual misinformation and hype that is deeply damaging. Greenways are good for local people to use, good for tourism and good for health. It’s time to focus on that good.