A HIGH Court judge has rejected claims by a local woman that a vote to extinguish a public right of way on a road in Bunbeg, Co Donegal and transfer it to a brother- in-law of a local Minister of State is invalid because of the way a party whip was imposed on Fianna Fáil councillors who voted in favour of the proposal.
Mr Justice Liam McKechnie ruled yesterday there was no evidence to support claims by Kathleen Coll, in a long-running dispute with Donegal County Council, that a whip imposed on Fianna Fáil councillors, who voted on May 29th, 2006 to extinguish the right-of-way and transfer it to Liam Gillespie, a brother-in-law of Minister of State Pat the Cope Gallagher, meant those councillors had abdicated their individual discretion.
He stressed it was open to the courts to find a party whip was imposed unlawfully if there was evidence that, when voting on issues involving the exercise of a quasi judicial function such as planning, the whip resulted in members abdicating their individual judgment and discretion.
If there was such evidence in this case, he would rule the vote invalid but there was no such evidence, the judge said.
He earlier noted that the existence of whip or instruction practices went back a long way in the democratic system, not just here but in other countries, and such practices were not, subject to certain conditions, unlawful.
The judge said this was a "spiteful and acrimonious dispute" dating back to 1999 which would plague this small area for some time to come. It was difficult for him as an outsider to understand why this bitterly divisive issue had occupied the minds of people in this small area for so long, he said.
In his view, the real motives and agendas of many involved had been "left unsaid", Mr Justice McKechnie remarked.
He said the dispute was steeped in local politics and, if the extinguishment of the right of way had not been sought by a brother- in-law [ Mr Gillespie] of a local Minister of State [ Mr Gallagher], he wondered whether it would have been so contentious.
He said virtually the entire political support for Mr Gillespie came from Fianna Fáil while members of the Opposition were largely, if not exclusively, on Ms Coll's side.
A disproportionate amount of time, resources and money appeared to have been spent on the matter, he added.
He was giving his reserved judgment dismissing the action by Ms Coll, Strand Road, Bunbeg, against the council which has its origin in a decision of An Bord Pleanála in 1999 to grant permission to Mr Gillespie for development of a filling station and supermarket at the junction of the Strand Road and Bunbeg Road on condition he carried out realignment works on the Strand Road.
