Intimidated couple win right to put gate on land
Dog shot in right-of-way row
A COUPLE have won the right to erect a gate preventing access across their land, following a bitter battle which saw their dog shot and an anonymous letter ordering them to leave.
High Court judge Charles Meenan said the events had been frightening and intimidating for Cornelius and Suzanne Dennehy, who live and farm near Fossa village in Co. Kerry.
He said An Bord Pleanála was wrong to state that they needed planning permission to put up a gate, as the Circuit Court had previously found there was no right of way over the Dennehys’ land.
Judge Meenan noted in his judgment that the land leads down to the shore of scenic Lough Leane and links to the N72 Killarney-Killorglin Road. It also provides access to a number of houses and to the Loch Lein Country House Hotel, owned by Dr Donal Coffey, who was a notice party to the case.
A neighbour, Maurice O’Connell, had said in 1989 that he would no longer allow the local Fossa Rowing Club to cross his land to get to the lake. Judge Meenan said three members of the club approached Mr Dennehy and got his permission.
‘Unfortunately, this was the start of the trouble,’ the judge said. Mr Dennehy claimed some members of the club exceeded their permission and insisted they had a right to use it. The Dennehys put up a steel, electronic gate to prevent trespass in 2010, along with ‘no trespassing’ signs.
But by 2012 there were increasing incursions which became confrontational and gardaí had to be called, the judge said.
Public events were organised seeking to establish the existence of a public right of way over the laneway, not only by the Fossa Rowing Club but also by other organisations such as the ‘Fossa Way Committee’ and the ‘Men’s Shed’.
‘These organised public events cannot have been anything other than frightening and intimidating for the applicants [the Dennehys] and their family,’ the judge said.
He said the Dennehys received an anonymous written threat warning them to leave Fossa. Shots were fired over their home, property was damaged and their dog was shot.
The judge said some club members had apologised to the couple, and said they disagreed with what was happening.
He noted that Circuit Court cases brought in 2011, one by Maurice O’Connell and the other by nominated members of the rowing club, had both been dismissed.
The Circuit Court found there was no right of way across the land, meaning that people travelling over it without permission were trespassing.
Hotel owner Dr Coffey then sought a declaration from An Bord Pleanála that the gate erected by the Dennehys required planning permission. Dr Coffey claimed the land enclosed by the gate had been used for over ten years by people accessing the lake.
An Bord Pleanála found that it was a private road, but ruled that the erection of the gate constituted development, and therefore needed permission.
The Dennehys brought High Court proceedings over that ruling, which were settled. The board reconsidered its decision but came up with the same answer, prompting the Dennehys to bring a second High Court challenge.
Ruling on this second challenge, Judge Meenan said the board did not correctly consider the legal import of the Circuit Court decision.
‘This was the start of the trouble’