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You are here: BAILII >> Databases >> Irish Court of Appeal >> Carvill & Anor v Dublin City Council & Ors (Approved) [2025] IECA 84 (11 April 2025)
URL: https://www.bailii.org/ie/cases/IECA/2025/2025IECA84.html
Cite as: [2025] IECA 84

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 THE COURT OF APPEAL

CIVIL

 

[APPROVED]                                                                                Appeal Number: 2021/224

Neutral Citation: [2025] IECA 84

Barniville P

Collins J

Faherty J

PETER CARVILL

MANNIX FLYNN

Applicants/Respondents

                                                                      AND

 

DUBLIN CITY COUNCIL

Respondent/Appellant

 

IRELAND AND THE ATTORNEY GENERAL

Respondents

 

 

JUDGMENT of the Court delivered on 11 April 2025

IndeX

                                                                                                                        pAGE

 

1. Introduction.. 3

2. Factual Background.. 8

3. Pre-Action Correspondence.. 18

4. The Proceedings. 21

5. The High Court Judgment.. 24

6. The Appeal/Cross-Appeal.. 35

7. Submissions And Hearing of Appeal.. 45

8. The Issues. 53

(1)        The Section 50A Issue.. 55

(2)       The Scheme Status Issue.. 667

(3)       The AA Screening Issue.. 73

(4)        The EIA Pleading Issue.. 74

(5)        The EIA Screening Issue.. 97

(6)       The Planning Permission Issue.. 132

(7)       The Scheme Decision Issues. 133

(8)       The Mootness Issue.. 153

(9)       The Abuse Of Process/Candour Issue.. 170

(10)     The Cross-Appeal Issues. 179

9. Summary of Conclusions. 189

10. ORDERS/COSTS................................................................................. 198

 

 

 

1. Introduction

 

1.                  This is the judgment of the Court, to which all members have contributed, on the appeal by Dublin City Council (the "City Council" or the "Council") and the cross appeal by the Second Applicant, Councillor Flynn, from the judgment of the High Court (Meenan J) delivered 30 July 2021, and from the order made by the High Court on 9 August 2021.

 

2.                  The proceedings involve a challenge to a decision made by the City Council in 2021 to proceed with a cycle route trial in Sandymount in Dublin, known as the Strand Road Cycle Trial (the "Scheme"). The proceedings were brought by Councillor Flynn, a public representative and member of the City Council, and by Mr. Carvill, a retired civil servant who was acting in his capacity as a member of a local community group called the Serpentine Ave, Tritonville Road, Claremont and other adjoining roads Community Group (the "STC Community Group"). Mr. Carvill withdrew from the proceedings in September 2021 after the appeal was brought from the judgment and order of the High Court and the appeal was maintained thereafter by Councillor Flynn only.

 

3.                  In his judgment and order, Meenan J (the "Judge") found in favour of Councillor Flynn and Mr. Carvill on a number of the grounds on which they challenged the City Council's decision and rejected some of the grounds advanced by them. For the reasons set out in his judgment, the Judge made the following orders:

 

(a)        an Order of certiorari quashing the City Council's decision to proceed with the Scheme,

(b)        a Declaration that the decision to proceed with the Scheme was unlawful, void and had no lawful effect, and

(c)        an Order for the costs of Councillor Flynn and Mr. Carvill to be paid by the City Council.

 

4.                  The Second and Third Respondents, Ireland and the Attorney General, did not actively participate in the proceedings in the High Court and, on the application of Councillor Flynn and Mr. Carvill, the proceedings were struck out against them, with liberty to apply.

 

5.                  In his judgment, the Judge made a number of significant findings, including that, notwithstanding that it had been averred to on affidavit and described in numerous documents as such, the proposed Scheme was not in fact temporary at all and that the screening for the purposes of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (as amended) (the "EIA Directive") and Council Directive 92/43/EEC of 21 May 1992 on the Conservation  of Natural Habitats and of Wild Fauna and Flora (the "Habitats Directive") which was carried out by the City Council was fundamentally flawed in a number of respects. The Judge held that if the proposed Scheme was to proceed, the requirements of the EIA Directive and the Habitats Directive had to be addressed and complied with and that the Scheme would have to "go through the planning process", meaning that the City Council would have to seek permission for it from An Bord Pleanįla.

 

6.                  The City Council appealed to this Court and Councillor Flynn (and, initially, Mr. Carvill) cross-appealed. Councillor Flynn took a preliminary objection to the City Council's appeal which was that the City Council was not entitled to appeal without having sought and obtained a certificate from the High Court pursuant to section 50A(7) of the Planning and Development Act 2000 (as amended) (the "PDA"). In the absence of such a certificate, Councillor Flynn contended that it was not open to the City Council to maintain its appeal. Significantly, however, Councillor Flynn did not seek to stand over the Judge's finding that an Environmental Impact Assessment ("EIA") and an Appropriate Assessment ("AA") were required in respect of the proposed Scheme (and that planning permission was, as a consequence, required for it). Councillor Flynn accepted that the Judge went further than he should have in reaching those conclusions and he accepted that those conclusions were incorrect. Councillor Flynn's position in the appeal with respect to those conclusions was that, without prejudice to his contention that the City Council was not entitled to appeal without a certificate pursuant to section 50A(7) of the PDA, this Court could "clarify"  that the Judge's conclusions on those issues were incorrect. Councillor Flynn did, however, stand over the other findings and conclusions made by the Judge (save for those which were the subject of his cross-appeal).

 

7.                  As will be apparent from the more detailed description of the factual background to the proceedings and from the account of the proceedings set out below, it emerged during the course of the hearing of the appeal that the decision of the City Council which everybody, including Councillor Flynn, the solicitors and counsel on both sides of the case, the High Court and this Court, understood was the decision by which the City Council decided to proceed with the Scheme was not in fact the relevant decision.  Everybody had been proceeding up to that point on the basis that the relevant decision was an Executive Manager Order dated 25 February 2021, Order ET/178/2021. However, in a very surprising development, it emerged during the course of the hearing of the appeal that that was not in fact the relevant decision but that another decision had been made by a senior official of the City Council on 8 February 2021, which was the actual decision that the Scheme would proceed on 1 March 2021, and that Order ET/178/2021 was made merely to facilitate the Scheme. The Court was informed that the decision of 8 February 2021 was not in writing and that there was no record of its terms or of the reasons for it. Having afforded the City Council's counsel the opportunity to take instructions, it then also emerged on the second day of the hearing of the appeal that Order ET/178/2021 itself had in fact been rescinded by the same senior official on 2 March 2021, by means of another Executive Manager, Order ET/187/2021. None of this was known to the Judge, who clearly proceeded on the basis that the relevant decision was contained in Order ET/178/2021. These developments led to the Court directing the City Council to provide a detailed explanation on affidavit as to the decision-making process in respect of the proposed Scheme and an explanation as to why the fact that Order ET/178/2021 was rescinded was not brought to the attention of the High Court. An opportunity was afforded to Councillor Flynn to respond to that affidavit. Further written submissions were directed and the Court was required to fix an additional day for the hearing of the appeal some months later.

 

8.                  These developments led to the introduction of a number of new legal issues into the appeal (including whether  the appeal was moot, whether there was a breach of the duty of candour on the part of the City Council and whether it was lawful, having regard to the applicable statutory provisions or otherwise, for the City Council to make a decision orally and without any record of it or of the reasons for it). These developments and their implications for the appeal are addressed in detail below.

 

9.                  For the reasons set out in this judgment, we have concluded that the City Council did not require a certificate pursuant to section 50A(7) of the PDA to maintain its appeal, that the appeal is not moot, that the Judge was wrong to hold that the proposed Scheme was not temporary, that he was wrong to hold that there were fundamental flaws in the screening for EIA and for AA and that he was wrong to hold that an EIA, an AA and planning permission were required for the proposed Scheme. We have also concluded that, while most unfortunate and while very likely to have significant costs implications, the City Council's belated disclosure of the existence of the relevant decision providing for the commencement of the Scheme and of the recission of Order ET/178/2021 did not preclude the City Council from maintaining its appeal whether on the grounds of mootness or on the grounds of a breach by the City Council of its duty of candour. While the Court has found that the City Council was in breach of its duty of candour, the Court has accepted that the breach was inadvertent and the relevant official has apologised to the Court. We have concluded, therefore, that the Council must succeed in its appeal. We have also concluded that Councillor Flynn's cross-appeal should be dismissed.

 

 

 

 


 

2. Factual Background

 

10.              As outlined by the Judge in his judgment, the City Council's plans for a cycle route trial on Strand Road in Sandymount dated back to the early days of the Covid-19 pandemic in 2020, although it appears that the introduction of cycle facilities in the area was a continuing objective of the City Council and of the National Transport Authority ("NTA") from before the Covid-19 pandemic. Notwithstanding this continuing objective of the City Council, it was confirmed on affidavit on behalf of the City Council that the Strand Road Scheme was intended to further Government policy on Covid-19 and the timing of its introduction was regarded as being of "particular importance in view of the imminent return of children [to] schools" following the lifting of some of the restrictions introduced at the outset of the pandemic (para. 9 of the affidavit sworn by Brendan O'Brien on 22 March 2021).

 

11.              In May 2020, the City Council published a report entitled "Enabling the City to Return to Work: Interim Mobility Intervention Programme for Dublin City" (the "May 2020 Report"). The May 2020 Report was prepared in light of the enormous impacts which the Covid-19 pandemic had on people's lives and on the transport system. The overall aim of the May 2020 Report was to "enable the city to return to work, to enable retail and leisure activities to restart and allow people to visit family and friends and, in time, schools and colleges to reopen all in line with government guidelines and time-scales". Reference was made in the report to the dramatic reduction in the capacity of the public transport system in light of spacing or social distancing requirements. It was noted that, as a result of the impact of the Covid-19 pandemic and of these requirements, fewer people would be travelling on public transport and more people would need to be accommodated on other modes of transport. It was noted that there would, therefore, be more people cycling, walking and wishing to travel by car and that, to facilitate these new patterns of travel, "some reallocation of road space [would] need to be introduced on many streets" and that those changes would have to be considered in conjunction with social distancing requirements. The goal of the interim mobility intervention programme outlined in the May 2020 Report was to allow Dublin City to function under the arrangements in place as a result of the Covid-19 pandemic by providing space for safe movement and accommodating the changed transport patterns. The programme had a number of transport - specific objectives which included enabling "more people to cycle by providing safer cycling facilities", improving pedestrian safety and accommodating "a certain level of car use, calibrated with other transport needs". Among the measures envisaged in the May 2020 Report were "protected cycle facilities, contra-flow facilities and cycle parking". The Report proposed the provision of "safer cycling infrastructure through the implementation of protected cycle lanes" in order to facilitate a "much higher number of cyclists". That could be done by "reusing existing road space by removing on-street parking and protecting that road space for cycling via protection bollards and other cyclist protection measures". Reference was also made in the May 2020 Report to the introduction of dedicated cycle lanes and to the fact that a number of traffic lanes could be reduced to accommodate "protected cycling facilities on both sides of the road".

 

12.              In August 2020, the City Council decided to launch a non-statutory public consultation for what was then termed the "Dublin City Council Covid-19 Mobility Response: Strand Road Trial Rapid Deployment Cycle Route". The proposal at that stage was to undertake a six-month trial of a two-way separated cycle track from Merrion Gates to Sean Moore Road. That would involve the inbound traffic lane being removed between Merrion Gates and Sean Moore Road, and the road itself being converted into a two-way cycle track on the sea side of the road with outbound vehicular general traffic travelling in one direction (heading south) on the buildings side of the road. Access to properties was to be maintained and the vast majority of informal parking along Strand Road was also to remain as it was. It was said that the Scheme would involve "minimal civil works" and would be installed in such way as to allow for localised alterations and to minimise any alteration to existing road services or kerbs. Protection was to be provided by bollards in the first instance which it was said could be easily adjusted and could easily be removed. It was stated that "more permanent protection" would be installed if the trial was successful. It was noted that some civil works would be required at a number of locations including at Merrion Gates, at some of the mini-roundabouts and at pedestrian crossings on the route. Works would also be required at the Beach Road/Sean Moore junction. All of those changes were said to be reversible. These details were all set out in "Report on Public Consultation: Trial of Strand Road Rapid Deployment Cycle Route, October 2020" (the "October 2020 Report").

 

13.              The public consultation was launched in August 2020 and was open from 21 August 2020 to 14 September 2020. Amongst those who made submissions as part of the consultation were members of the STC Community Group as well as other residents associations and individuals. According to the October 2020 Report, 2,922 submissions were received as part of the public consultation, with 56% of those submissions being in favour of the proposal, 27% being not in favour and 17% expressing some concerns.

 

14.              After the conclusion of the public consultation, an alternative proposal for a trial of a cycle route on Strand Road was received from the STC Community Group. That proposal was considered by the City Council and by the NTA but it was found that the proposal could not be implemented as a rapid deployment trial.

 

15.              Weekly Covid-19 mobility measure updates were provided to members of the City Council. At one such weekly update on 6 November 2020, the City Councillors were informed that the proposed Scheme was scheduled to commence on 15 January 2021, and to run for a six-month period.

 

16.              On 16 November 2020, notification under section 138 of the Local Government Act 2001 (as amended) (the "2001 Act") of the proposed construction of the Strand Road cycle track was provided to the elected members. That notification took the form of a report of the Acting Executive Manager (Traffic), Brendan O'Brien, dated 9 November 2020.  Having referred briefly to the original proposal, the consultation and further engagement with community groups, including by means of a consultative forum to be chaired by the Lord Mayor and to include such groups and interested persons (the "Community Forum"), the notification stated that it was proposed to commence the trial in early January 2021 with implementation of the cycle track beginning on 15 January for a trial period of six months.

 

17.              The first meeting of the Community Forum was held on 3 December 2020. A document presented to the Community Forum described the Scheme as a "6-month rapid deployment trial cycle route..." and described the trial as being "quick to install, low cost and... removable". It provided some details of the Scheme and outlined that some civil works were required and that the start date of the trial was expected to be "sometime in February". On 14 December 2020, the South East Area Committee of the City Council (the "SEAC") (consisting of elected members of the City Council in the South East area of the city) was notified of the deferral of the completion of the outstanding works to January 2021 and of the fact that the Scheme was likely to start in February instead of mid-January 2021. Further meetings of the Community Forum and of the SEAC took place on 7 January 2021 and 11 January 2021 respectively at which the Scheme was discussed.

 

18.              In the meantime, the City Council had engaged CAAS Limited ("CAAS"), a planning and environmental consultancy, to prepare EIA and AA screening reports in relation to the proposed Scheme. Draft reports were received by the City Council on 7 December 2020. Certain clarifications and confirmations of details of the Scheme were provided by the City Council to CAAS and the final EIA and AA screening reports dated January 2021 were received by the City Council on 12 January 2021.  The EIA screening report concluded that the Scheme did not correspond to any project type under the relevant legislation, that it did not comprise "sub-threshold development" and that it could be screened out for EIA purposes on that basis. It was further concluded that the environmental effects of the Scheme would be temporary and would not likely be significant for the purposes of the EIA Directive. It was concluded, therefore, that there was no real likelihood of significant effects on the environment arising from the Scheme. It was considered, therefore, that the proposed Scheme did not need to be subjected to EIA and that no EIA report was required for it. The AA screening report concluded that stage one screening for AA of the proposed Scheme showed that implementation of the Scheme was not likely to have significant effects on European sites, if unmitigated. It further concluded that the proposed Scheme would not lead to significant in combination effects with any other plans or projects and would not give rise to any significant adverse effects on designated European sites, alone or in combination with other plans or projects. As a consequence, the report concluded that stage two AA was not required.

 

19.              On 14 January 2021, Mr. O'Brien (Acting Executive Manager (Traffic)) made an order, Order ET/39/2021, that recommendations to accept the determination of the EIA and AA screening reports be adopted. The order noted that the City Council had concluded that there was "no real likelihood of significant effects on the environment arising from the proposed development and so an EIA [was] not required". It further noted that the City Council had concluded that "the proposed development either individually or in combination with other plans and projects [was] not likely to have significant effects on a European site and [did] not require Appropriate Assessment."

 

20.              The next relevant date for the purpose of the factual background is 8 February 2021. This is a very important date as it emerged only during the course of the hearing of the appeal before this Court that that was the date on which the City Council decided under section 38 of the Road Traffic Act 1994 (as amended) (the "1994 Act") that the Scheme should proceed on 1 March 2021 (referred to below as "section 38 decision" where convenient). In his affidavit of 25 February 2021, which was sworn in response to the stay application brought by the Applicants, Mr. O'Brien stated in his chronology of relevant events that on 8 February 2021, an "update" on the Scheme was given to Councillors at the SEAC meeting that day. In his affidavit of 22 March 2021, which verified the City Council's Statement of Opposition, Mr. O'Brien referred to an article published in the Irish Times that day which reported the commencement date of the one-way traffic system necessary to facilitate the Scheme as being 1 March 2021 (para. 15(xii)). Mr. O'Brien went on to state that the Councillors at the SEAC meeting were informed of the "decision to proceed with" the Scheme at that meeting (although he did not state when, by whom and by what means the decision was taken) and were notified of the 1 March 2021 start date (para. 15(xii)). Mr. O'Brien referred to a presentation to the Councillors at that meeting (the "Strand Road trial update" dated 8 February 2021). The presentation noted that certain "advance works" on Strand Road were to start on 15 February 2021 (comprising pedestrian crossing upgrades, changes to a roundabout and preliminary works at Merrion Gates) and that "installation of the trial [was] to commence on Monday, 1st March, 2021". Mr. O'Brien stated in the same affidavit that the Councillors did not pass any resolution under section 139(1) of the 2001 Act directing that those works should not proceed. Similar information was provided in the City Council's Statement of Opposition in the proceedings.  

 

21.              It was nowhere stated by Mr. O'Brien in the affidavits which were before the High Court, or in the City Council's Statement of Opposition, that the section 38 decision had in fact been taken by Mr. O'Brien himself in the afternoon of 8 February 2021 in his office in the Civic Offices of the City Council prior to the meeting with the SEAC. As we shall explain, the first time that information was provided on behalf of the City Council was on the second day of the hearing of the appeal to this Court. No date for the section 38 decision had in fact been provided in any of Mr. O'Brien's affidavits in the High Court, in the City Council's Statement of Opposition, in the City Council's written submissions to the High Court, or in its original written submissions in the appeal to this Court. The High Court was under the clear impression that the relevant decision to proceed with the Scheme was made on 25 February 2021, when an order was made by Mr. O'Brien (Order ET/178/2021) (see, for example, para. 37(i) of the High Court judgment). Details in relation to the making of the section 38 decision were provided by Mr. O'Brien in a supplemental affidavit which this Court directed be sworn following the second day of the hearing of the appeal. After the meeting with the SEAC on 8 February 2021, a press release was issued by the City Council notifying the public of when the work on the Scheme would commence and the date on which the right turn at Merrion Gates would be closed.

 

22.              On 12 February 2021, information concerning the date of the introduction of the one-way system and details of the preliminary works were outlined to a meeting of the Community Forum. On the same date, approximately 8000 leaflets were circulated to local residents providing those details.

 

23.              The preliminary works in relation to the Scheme were commenced on 15 February 2021 and included work on removing four mini-roundabouts on Strand Road, pre-marking along Strand Road in anticipation of road markings being installed and the removal of a concrete island at Merrion Gates to allow for a new right turn from Strand Road onto Merrion Road.

 

24.              On 25 February 2021, a number of important events occurred. In his capacity as Acting Executive Manager (Traffic), Mr. O'Brien made two orders. The first was Order ET/178/2021 providing approval for the implementation of certain traffic management measures listed in the order from 1 March 2021, for a period of six months, which were said to be required to "facilitate" the installation of a two-way separated cycle track along Strand Road and Beach Road. Mr. O'Brien gave his approval to the measures listed in the order which included the cycle track, the installation of certain traffic signs and the removal of four mini-roundabouts. On the same date, Mr. O'Brien made another order, Order ET/183/2021, which banned HGVs of a specified type from traveling within a cordon area commencing on 1 March 2021, so as to facilitate the six-month Scheme.

 

25.              On the same date (25 February 2021) Mr. O'Brien swore an affidavit in response to the Applicant's stay application at the High Court. He did not refer to these two orders or to his intention to make them in that affidavit and it is not clear whether they were made before or after the affidavit was sworn. The High Court granted the stay sought on 26 February 2021. By the time the stay was granted, certain preliminary works had commenced and were ongoing. Details of those works were set out in Mr. O'Brien's affidavits sworn on 25 February 2021 and 22 March 2021.

 

26.              Thereafter, the parties and the High Court all proceeded on the basis that the relevant decision to proceed with the Scheme had been made by the City Council by means of Order ET/178/2021 which was made on 25 February 2021: see, for example, para. 37(i) of the High Court judgment and para. 67 of the City Council's initial submissions to this Court. However, as has already been maintained and as will be elaborated on below, in the course of the second day of the hearing of the appeal, two things emerged. First, it was disclosed to the Court (and to Councillor Flynn) that the decision to proceed with the Scheme had been made by Mr. O'Brien on 8 February 2021, and not on 25 February 2021, and that that decision was not recorded or reduced to writing, still less contained in any formal order. Second, it was disclosed that Order ET/178/2021 and Order ET/183/2021 had both been rescinded by the City Council on 2 March 2021, by another order made by Mr. O'Brien on that date, Order ET/187/2021. In an affidavit which this Court directed Mr. O'Brien to swear after the second day of the hearing of the appeal, Mr. O'Brien explained that the purpose of rescinding Order ET/178/2021 (and the other order made on the same date) was to ensure compliance with the stay granted by the High Court on 26 February 2021 and to ensure that appropriate and correct signage and road markings for the two way operation of the road (in light of the stay) were reinstated. Mr. O'Brien explained that the rescinding of those orders was considered by the City Council to have been an "operational issue" and that in doing so the City Council was removing any ambiguity which might otherwise exist in respect of the status of the signage and the orders which had been made. The rescinding of the orders was not brought to the attention of the City Council's legal representatives and was unknown to them until the issue was raised during the course of the hearing of the appeal. Nor was it known to the Applicants in the High Court or to the Judge. Mr. O'Brien explained that that was due to an "oversight" and was not as a result of a "deliberate" decision.

 

27.              It also emerged (on the third day of the hearing of the appeal) that the City Council's position was that not only had the order of 25 February 2021 been rescinded on 2 March 2021 but that the decision made by Mr. O'Brien on behalf of the City Council on 8 February 2021 was also "spent" as it concerned a temporary Scheme which was to run for a six-month period from 1 March 2021 and the start date had long since passed by the time the case was heard in the High Court.


 

3. Pre-Action Correspondence

 

28.              Correspondence was exchanged between solicitors for Councillor Flynn and Mr. Carvill and the City Council prior to the commencement of the proceedings. In a letter dated 23 November 2020, Councillor Flynn and Mr. Carvill's solicitors sought certain important information in relation to the proposed Scheme, including:

 

(i)         the specific statutory authority on which the City Council was relying to implement the Scheme and whether it was relying on the PDA and/or the Road Traffic Acts;

(ii)        whether any screening for AA was carried out;

(iii)       whether a formal decision had been taken to proceed with the Scheme and, if so, when and by whom that decision was made;

(iv)       whether the Scheme was ever put to the elected members of the City Council and, if so, when;

(v)        the precise scope of the physical works required and whether they would involve road widening works;

(vi)       the precise duration of the Scheme; and

(vii)      the objective criteria being used to evaluate the Scheme.

 

29.              In a reply dated 22 December 2020, the Acting Law Agent of the City Council confirmed the following:

 

(i)         the proposal involved local authority development which was exempted development under the PDA and the City Council was relying on the proposal as constituting "traffic calming measures" within the meaning of that term in section 38 of the 1994 Act.  

(ii)        screening for AA had been conducted and had concluded that an AA was not required although a final report was not available at that stage and would be furnished when completed;

(iii)       a "formal decision" had not been made as of that date, but the City Councillors had been informed, under section 138 of the 2001 Act of the intention to proceed with the proposed works;

(iv)       reference was made to the public consultation in August/September 2020 and briefings given to the Councillors on various dates and to the SEAC meeting in September 2020;

(v)        certain details were provided in relation to the works and it was stated that the works would not involve any road widening;

(vi)       it was proposed that the trial period would be for a period of six months;

(vii)      the criteria by which the Scheme would be assessed were stated and it was noted that a public consultation would be held five months into the trial and a report would be prepared for the Councillors on the SEAC with the results of the consultation, the views of the Community Forum and the data collected during the trial together with a recommendation by the City Council as to whether to continue or remove the measures installed for the Scheme.

 

30.              Following further correspondence on behalf of Councillor Flynn and Mr. Carvill, the Acting Law Agent wrote again to their solicitors on 12 January 2021.  The letter confirmed that:

 

(i)         the works would be carried out under section 38 of the 1994 Act and were exempt from the Part 8 planning process;

(ii)        AA and EIA screening reports had been commissioned from an independent consultant and confirmed that approval from An Bord Pleanįla was not required;

(iii)       there was no obligation to defer the works while a declaration was sought under section 5 of the PDA. 


 

4. The Proceedings

 

31.              Councillor Flynn and Mr. Carvill sought and obtained leave to seek various reliefs by way of judicial review in respect of the decision to proceed with the proposed Scheme by order made on 22 February 2021. Following a contested hearing on 26 February 2021, the High Court granted a stay on the implementation of the decision to proceed with the Scheme. The City Council's evidence in response to the stay application took the form of Mr. O'Brien's affidavit of 22 February 2021 (to which reference has already been made). There was no reference in that affidavit to the decision to proceed with the trial pursuant to section 38 of the 1994 Act having been made by Mr. O'Brien himself on 8 February 2021, or to the two orders he made that same day - Order ET/178/2021 and Order ET/183/2021. However, Mr. O'Brien did state (at para. 9 of that affidavit) that the elected members of the City Council on the SEAC were informed of the decision to proceed with the Scheme and of its commencement date (1 March 2021) at the SEAC meeting on 8 February 2021, although it was not stated when and by whom that decision was made.

 

32.              Councillor Flynn and Mr. Carvill challenged the decision to proceed with the Scheme on a number of different grounds (which were set out in an Amended Statement of Grounds).  The main reliefs sought at against the City Council were (i) an order of certiorari quashing the decision of the City Council to proceed with the Scheme and (ii) a declaration that the decision to proceed with the trial was unlawful, as being in breach of the EIA Directive and/or the Habitats Directive and/or Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (the "SEA Directive") and/or the principle of nemo iudex in causa sua. A further nonspecific and general declaration was also sought as against the City Council. A declaration was initially sought as against Ireland and the Attorney General in relation to the transposition of the EIA Directive into Irish law. However, the Applicants did not proceed with their case as against those Respondents which (as noted earlier) was struck out with liberty to apply. 

 

33.              In their Amended Statement of Grounds, the Applicants pleaded that they were unaware of the date on which the "formal decision" to proceed with the trial was taken by the City Council (if such a decision had in fact been made) but that it appeared to have been made on or after 11 January 2021 (as that was when it appeared the AA screening report was stated to have been received). 

 

34.              In their Amended Statement of Grounds, as well as in their written submissions in the High Court, the Applicants advanced a number of different grounds of challenge to the decision to proceed with the Scheme including an alleged breach of Article 9a of the EIA Directive, alleged defects in the EIA and AA screening, and breaches of the EIA Directive and the Habitats Directive, complaints made in relation to the timing of the screening decisions and alleged non-compliance with section 38 of the 1994 Act. The grounds advanced by the Applicants are outlined in greater detail in the next section which considers the High Court judgment, and in the sections which consider the issues which arise in this appeal.

 

35.              In its Statement of Opposition, the City Council objected to all of the grounds raised and advanced objections to the manner in which the claim had been pleaded.  The City Council made the point that the Applicants did not identify the particular category of EIA project within which the Scheme fell. The pleadings and the objections to the manner in which the Applicants sought to advance their case in reliance on the EIA Directive are set out and analysed in greater detail later in this judgment.

 

36.              It is, however, notable that in its Statement of Opposition the City Council did not state when the decision to proceed with the trial was made. Although both the Statement of Opposition (at paras. 10(i) - (xvi)) and Mr. O'Brien's verifying affidavit sworn on 22 March 2021 (at paras. 15(i) - (xvii)) referred to the meeting of the elected members of the City Council on the SEAC on 8 February 2021, when the decision to proceed with the trial and start date of the trial was notified to them, neither document identified when the decision was actually made. However, it is clear both from the correspondence which predated the proceedings and from the position adopted by the City Council in the course of the proceedings (in its Statement of Opposition, affidavits and submissions) that the decision to proceed with the Scheme was taken pursuant to section 38 of the 1994 Act, on the basis that it consisted of "traffic calming measures" within the meaning of that provision. 

 

37.              In all, 26 affidavits were sworn for the purposes of the proceedings in the High Court.  The High Court also had the benefit of detailed written and oral submissions. 


 

5. The High Court Judgment

 

38.              In his detailed judgment, the Judge set out the factual and procedural background to and the history of the proceedings and then noted that the legal issues arising in the case concerned the interpretation and requirements of the EIA Directive and the Habitats Directive and of the PDA and the 1994 Act.  He stated that there was also a "central factual issue" to be addressed (para. 19).  That issue was whether the proposed Scheme was, in fact, "temporary" in nature, as the City Council contended. 

 

39.              The Judge dealt first with that factual issue. He held that as a matter of fact, the trial was not "temporary". While he noted that Mr. O'Brien had sworn on affidavit that the trial was "temporary" and that he had not been cross examined on his affidavits, the Judge held that he was entitled to consider all of the affidavits filed on behalf of the City Council and the exhibits to those affidavits in determining that factual issue.

 

40.              The Judge stated that in order to be temporary, the Scheme had to have a start date and an end date. While there was no issue as to the start date, there was, he said, an issue as to whether an end date had been provided for in the Scheme. The Judge noted that the City Council had relied on the fact that in Order ET/178/2021 of 25 February 2021, it was stated that the Scheme was a six-month trial commencing on 1 March 2021. The City Council had also relied on the averments contained in Mr. O'Brien's affidavits that the Scheme was for a six-month period. However, the Judge noted that it was stated at the meeting of the Community Forum on 3 November 2020, that a public consultation would be held five months into the trial and that a report would be prepared for the Councillors on the SEAC which would contain the results of that consultation, the views of the Community Forum and the data collected during the trial and that the City Council would provide a recommendation on whether to continue or to remove the measures put in place for the trial. The Judge concluded that, despite Mr. O'Brien's averments to the contrary, the information provided at the meeting of the Community Forum on 3 December 2020, cast "considerable doubt as to whether the cycleway trial is temporary" (para. 22). The Judge continued:

 

"What is stated is that five months into the trial, i.e. one month before the end date, there will be a review by way of public consultation which will give a recommendation as to whether or not to continue with the cycleway trial.  Thus, on the last day of the six months, the cycleway may or may not be removed.  Clearly, if it is not removed it is not temporary." (para. 22)

 

41.              The Judge then quoted what Mr. O'Brien stated at para. 29 of the affidavit he swore on 22 March 2021. There, Mr. O'Brien stated: "If the trial is not a success it will be removed". The Judge commented that it had to follow from that statement that "if the trial is a success it will not be removed" (para. 22). Having referred to this evidence, the Judge concluded:

 

"Therefore, it cannot be said that the cycle way will only be there for six months.  The most that can be said is that the cycle way trial is reviewable.  A reviewable cycleway is not a temporary cycleway.  From this I conclude, contrary to what was submitted on behalf of the City Council, that the cycleway trial is not 'temporary" (para. 23).

 

42.              The Judge then went on to consider the legal issues. He noted that the City Council was relying on the Scheme constituting "traffic calming measures" for the purpose of section 38 of the 1994 Act. However, before considering that provision, the Judge addressed the arguments made in relation to the EIA Directive and the Habitats Directive.

 

43.              With respect to the EIA Directive, the Judge noted the City Council's position that the EIA Directive had no application to the Scheme on the basis that it did not fall within any of the classes of project for which an EIA could be required. Although the City Council had arranged for an EIA screening report to be prepared, its position was that this was not required under the EIA Directive or under any of the national implementing measures.  The Judge noted the position adopted by the Applicants which was that the proposed Scheme was (a) "urban development" under Part 2 of Schedule 5 of the Planning and Development Regulations 2001 (as amended by S.I. no. 600 of 2001) (the "Planning and Development Regulations") and (b) "road development" under section 50 of the Roads Act 1993 (as amended by S.I. no. 279 of 2019) (the "1993 Act"). The Judge did not refer to the fact that the Applicants had not pleaded that the Scheme fell within either of those classes of project, either in the original Statement of Grounds or in their Amended Statement of Grounds and that a pleading objection had been raised at the hearing to the Applicants raising these points. 

 

44.              Having referred to the relevant provisions of the EIA Directive and of the Planning and Development Regulations, the Judge held that the proposed Scheme did constitute "urban development" and that it was also "road development". He concluded, therefore, that the Scheme was within the scope of the EIA Directive (as implemented into Irish law).

 

45.              With respect to "urban development", the Judge held that the Scheme fell within the scope of "urban development" in Class 10(b)(iv) in Part 2 of Schedule 5 to the Planning and Development Regulations but was below the relevant threshold and was, therefore, sub-threshold development within Class 15. The Judge derived assistance from the judgment of Kay J in the High Court of England and Wales (Queens Bench Division, Administrative Court) in R (City of Westminster) v. The Mayor of London [2002] EWHC 2440 (Admin). He considered that in contrast to the outcome of that case, what was involved in the Scheme here did amount to "urban development" as it went beyond the installation of signs and road markings. He held that the Scheme would require the removal of a traffic island at the junction of Strand Road and Merrion Road, the removal of a number of mini-roundabouts and the placing of barriers to separate the cycle track from the vehicular traffic. The Judge held that that came within the nature of "buildings or construction" as referred to by Kay J in the City of Westminster case (para. 29). 

 

46.              With respect to "road development", the Judge held that he was satisfied that the proposed cycle track was "road development" for the purpose of section 50 of the 1993 Act. However, he did not explain how he had reached that conclusion.

 

47.              Having decided that the Scheme fell within the terms of the EIA Directive, the Judge then considered the EIA screening report prepared by CAAS on behalf of the City Council. He referred to an extract from section 4.2 of the EIA screening report in which the proposed development was reviewed by reference to criteria contained in Schedule 7 to the Planning and Development Regulations (which contain criteria for determining whether a proposed development listed in Part 2 of Schedule 5 should be subject to an EIA). The Judge referred to para. 1(f) of Schedule 7 which refers to the criteria "pollution and nuisance". He noted that the EIA screening report stated with respect to those criteria:

 

"The proposed scheme is likely to temporarily reduce air pollution, noise and other temporarily traffic related nuisances along the length of the scheme.  It will temporarily affect traffic levels elsewhere due to displacement of northbound traffic from Strand Road.  Temporary effects of displaced traffic are considered further below."

 

48.              The Judge noted that in the commentary in the report, the word "temporarily" or "temporary" was used four times. He stated that since he had found that the Scheme was not temporary, it followed that the criteria "pollution and nuisances" had not been correctly considered in the EIA screening report.

 

49.              The Judge then considered the criteria referred to in para. 3(b) of Schedule 7, namely "the nature of the impact" of the Scheme and considered what the EIA screening report said in relation to that criterion. Reference was made in the relevant commentary in the EIA screening report to modelling carried out by the NTA in October 2020 which noted that the removal of northbound traffic would reduce traffic volumes by approximately 40%. The commentary further stated that during the trial period, it could be anticipated that traffic, noise and air quality impacts on the Scheme area would be less than before the trial. The commentary also noted that NTA traffic modelling predicted that displaced northbound traffic would disperse through a number of alternative routes during the period of the Scheme. The commentary then noted that during the morning peak period, the worst-case scenario showed the changes in traffic on alternative routes as being estimated to range from -9% to +63%.  It stated that the displaced traffic would be monitored and managed by the Dublin City Council Transportation and Environment Section. The commentary concluded by stating:

 

"Impacts will be temporary and are not likely to be significant, within the meaning of the Directive."

 

50.              The Judge concluded that the commentary, which provided a summary of the change in traffic patterns, did not give a "true representation of the picture". He stated that there was no mention of a 114% increase in northbound traffic on Merrion Road (noting also that the figure might possibly be higher given the new right-hand turn from Strand Road onto Merrion Road). He said that the explanation for that appeared to be that Merrion Road is a "regional" road rather than a "local" road. He observed, however, that in "an urban setting this may well be a distinction without a difference" (para. 35). The Judge further observed that no reference was made to the fact that four local roads were involved with an increase in traffic varying between 22% and 63% on those roads. While acknowledging that the court had to afford some deference to the expertise of CAAS, nonetheless, he said:

 

"Common sense would indicate that the screening report has not properly addressed 'the nature of the impact' of the proposed cycleway to a considerable extent" (para. 35).

 

51.              The Judge concluded in relation to the EIA screening report as follows:

 

"In my view, the screening report that was carried out was based on a project that was very different to the cycleway trial that is actually proposed.  The screening report proceeded on an incorrect assumption that the cycleway would be temporary.  Further, despite having data on traffic displacement from the NTA, the report seriously underestimated the effects of traffic displacement.  Thus, the screening report is inadequate in circumstances where an EIA is required." (para. 36)

 

52.              The Judge then considered three further issues (i) the timing of the EIA screening, (ii) public participation and (iii) the alleged breach of Article 9a of the EIA Directive. 

 

53.              With respect to the timing issue, the Judge noted the Applicants' contention that the EIA screening report was obtained by the City Council after it had taken the decision to proceed with the Scheme. They referred to the fact that the elected members of the City Council were notified on 16 November 2020 of the intention to proceed with the Scheme. However, the City Council contended that the decision to proceed was taken after the EIA screening report was received. The Judge noted the City Council's submission that the EIA screening report was adopted by the City Council by means of the Order made on 14 January 2021 (Order ET/39/2021 and that "by a further order of 25th February 2021, the cycleway was to be commenced" (that "further order" being Order ET/178/2021). The Judge noted the City Council's reliance on the judgment of the High Court (Barniville J) in Cork Harbour Alliance v. An Bord Pleanįla [2021] IEHC 203. The Judge's conclusion on the timing issue was set out at para. 37(i) of the judgment:

 

"In my view, though it was more than probable that the City Council were firmly of the view that the cycleway would proceed, this could not have happened until after the formal order had been made. Clearly, this formal Order was made after receipt of the screening report." 

 

54.              The "formal order" to which the Judge was referring was clearly Order ET/178/2021.  As noted earlier, the Judge appears, therefore, to have been under the clear impression that the decision to proceed with the Scheme was made on 25 February 2021, by means of that order and not on any earlier date or by any other means.

 

55.              The Judge rejected the Applicants' arguments based on requirement for public participation in the screening process. He held that they had failed to identify any legal basis to support that submission.

 

56.              As regards the Applicants' argument that the City Council was in breach of Article 9a of the EIA Directive, the Judge referred to the City Council's contention that the point had not been pleaded with the requisite particularity in the Amended Statement of Grounds and that had it been properly pleaded the City Council would have provided more evidence on the point. He held that although a breach of Article 9a was pleaded, the City Council's submission that the plea lacked the requisite particularity was correct. Therefore, he rejected that argument also.

 

57.              With respect to the Applicants' case based on the Habitats Directive, the Judge noted that the location of the proposed Scheme is in an area directly adjacent to a number of European sites and the project therefore fell within the Habitats Directive. Having referred to Article 6(3) of that Directive, the Judge held that there was a legal obligation on the City Council to carry out an AA (para. 38). The first stage (screening for AA) was carried out by CAAS on behalf of the City Council and it prepared an AA screening report for the purposes of that stage of the process. The Judge referred to a number of passages from the AA screening report which made specific reference to the trial being for a temporary and limited six-month duration as being significant to the conclusion that it was not necessary to proceed to stage two of the AA process and to prepare a Natura Impact Statement. The Judge noted that that conclusion was based on the Scheme being temporary whereas he had concluded that it was in fact not temporary. The Judge concluded, therefore, that that "fatally undermines the credibility of the screening report for AA" (para. 39). 

 

58.              The Judge rejected the Applicants' claim that the AA screening was deficient by reason of a lack of public participation on the basis that the Applicants had not identified any legal requirement for public participation in the screening for AA (para. 40). 

 

59.              Having addressed and set out his conclusions that the EIA and AA screening reports were deficient, the Judge went on to state:

 

"I found that both an EIA and an AA is required for the proposed cycleway and that the screening reports commissioned by the City Council are fundamentally flawed.  It follows that if the cycleway is to proceed, the requirements of the EIA Directive and the Habitats Directive must be addressed and complied with." (para. 41)

 

60.              Unfortunately, the conclusion that an EIA and an AA were both required was incorrect as a matter of law and Councillor Flynn did not seek to stand over that conclusion in the appeal. If correct, the Judge's conclusion that the EIA and AA screening reports were defective would have meant that screening would have been done on a correct and lawful basis but not that an EIA and an AA were required.

 

61.              The Judge then considered the consequences of his conclusions in relation to the EIA and AA screening for the City Council's reliance on certain Irish statutory provisions.

 

62.              The Judge noted that under section 4 of the PDA (section 4(1)(aa)), development by a local authority in its functional area is "exempted development" but that, having regard to section 4(4), such development is not "exempted development" if an EIA or an AA of the development is required.  The Judge further noted that while the City Council relied on section 38 of the 1994 Act as the statutory basis for the Scheme on the basis that the measures involved amounted to "traffic calming measures" (under section 38(9)), and would have the benefit of the exemption provided for in section 179(6)(bb) of the PDA and would, therefore, be excluded from the public consultation procedure provided for in section 179, that exemption would not apply where the development required an EIA (section 179(6)(d)) and/or an AA (section 179(6)(e)). The Judge concluded from this that:

 

"If the proposed cycleway is to proceed it will have to go through the planning process." (para. 44)

 

63.              The Judge held, therefore, that the Applicants were entitled to succeed in their application. In an order made on 9 August 2021 (and perfected on 19 August 2021), the Judge made:

 

(a)        an order of certiorari quashing the City Council's decision to proceed with the Scheme, and

(b)        a declaration that the decision to proceed with the Scheme was unlawful, void and had no lawful effect.

 

64.              The Court ordered that the costs of the proceedings be paid by the City Council and refused the Council's application for a stay on those orders.

 

 

 

 

 

 

 

 

 

 

 

6. The Appeal/Cross-Appeal

65.              The City Council's Notice of Appeal contained 17 grounds of appeal (there is some overlap between a number of the grounds). The main grounds of appeal are summarised below as are the main grounds on which Councillor Flynn and, until his withdrawal from the appeal, Mr. Carvill, opposed the appeal as well as the grounds on which they sought to cross appeal from certain aspects of the judgment. We distil from those grounds the essential issues to be decided on this appeal in the next section of our judgment.

 

(1)   The City Council's Grounds of Appeal

 

66.              The City Council's grounds of appeal may be summarised as follows:

 

(i)                 The Judge erred in law and in fact in holding that an EIA and an AA were required for the proposed Scheme and that, if it was to proceed, it would "have to go through the planning process". The City Council made the point that even if screening for EIA of the Scheme were required (which it said was not the case) and if the Judge were correct in finding that the EIA and AA screening were both flawed (and, again, it was said that he was not correct in so finding), it did not mean that an EIA and an AA were required. At its height, the City Council contended, alleged flaws in the EIA and AA screening would only give rise to a requirement to carry out a further screening for EIA and AA and would not, in and of itself, mean that a full EIA and AA were required. It was further noted that Councillor Flynn and Mr. Carvill were not granted leave to contend that an EIA and an AA were required.

 

(ii)              The Judge erred in law and in fact in holding that the Scheme was not "temporary". The City Council contended that such a finding was irrational, was an erroneous inference derived from circumstantial evidence, was contradictory to and incongruous with certain other findings made by the Judge and was not open to the Judge to make on the basis of the materials and evidence before the court. The City Council maintained that the Judge was clearly wrong in stating that there was an issue as to the specification of an "end date" to the trial.

 

(iii)       The Judge erred in making a number of factual errors and material omissions in describing the effects on traffic and the NTA estimate of traffic displacement, including citing incorrect NTA figures for traffic displacement, failing to refer to updated NTA figures and failing to note that the traffic assessment was based on pre-Covid traffic. 

 

(iv)       The Judge made a fundamental error in holding that the Scheme was a type of project for which an EIA was required. The City Council maintained that it was a "traffic calming measure" taken under section 38 of the 1994 Act which involved "very minor and ancillary works" to facilitate such traffic movement which did not engage the EIA Directive and did not relate to any type of EIA project. It maintained that it carried out the EIA screening on a "purely precautionary basis" and not on foot of any legal requirement to do so. 

 

(v)        The Judge erred in rejecting and in failing to record in the judgment the City Council's pleading objection in response to the Applicant's claim that the Scheme was an "urban development" project and/or "road development" project. With respect to the claim that it was an "urban development", it was noted that no such plea was contained in the (Amended) Statement of Grounds, no leave was obtained to advance that claim and the claim was one made for the first time in the Applicant's written legal submissions in the High Court. With respect to the claim that it was a "road development" project, such a claim was not pleaded, was not contained in the Applicant's written submissions in the High Court and was made for the first time in oral submissions at the hearing in the High Court. The City Council had objected at the hearing to the Applicant's making those claims.

 

(vi)       Without prejudice to the pleading objection, the Judge erred in finding that the Scheme constituted "urban development" for the purposes of the EIA Directive and the Judge's finding that it did was "unreasoned and made without proper regard to legal authority cited to the court". It was also said that the Judge misinterpreted and misapplied the judgment in the City of Westminster case.  

 

(vii)      Again, without prejudice to its pleading objection, the City Council contended that the Judge erred in finding that the proposed Scheme constituted "road development" for the purposes of section 50 of the 1993 Act. It contended that the judgment was "entirely unclear" as to the basis on which the Judge concluded that the trial was a "road development" project and, therefore, required an EIA. The City Council submitted that the Scheme did not fall within either of the two EIA categories applicable to roads under the EIA Directive i.e. Class 7 of Annex I of the EIA Directive and Class 10(d) of Annex II of that Directive.

 

(viii)    Without prejudice to its earlier grounds of appeal, the City Council contended that insofar as EIA screening was required, the Judge erred in concluding that the EIA screening report proceeded on an incorrect assumption that the trial would be temporary. It further contended that insofar as the trial did not fall within any EIA category, any alleged flaw in the EIA screening which it said was carried out on a "purely precautionary basis" was irrelevant and/or of no consequence to the ultimate decision.

 

(ix)       Again, without prejudice to its earlier grounds, the City Council contended that insofar EIA screening was required, the Judge further erred in his assessment and consideration of the EIA screening report and a detailed explanation was set out as to the alleged errors made by the Judge in interpreting the report. Reference was made to further alleged errors in the Judge's consideration of traffic displacement.

 

(x)        The Judge erred in concluding that because the proposed trial was not temporary that that fatally undermined the credibility of the AA screening report.

 

 

 

(2)   Respondents' Notice (Councillor Flynn and Mr. Carvill)

 

67.              In their Notice, Councillor Flynn and Mr. Carvill made a preliminary objection at the outset. They contended that the City Council was not entitled to appeal the judgment without having applied for and being granted a certificate pursuant to section 50A(7) of the PDA. They contended that the decision of the Council which was challenged in the proceedings (and ultimately quashed by the High Court), comprised the decisions to proceed with the development under section 38 of the 1994 Act and with the screening determinations in relation to EIA and AA, was a decision to which section 50(2) of the PDA applied and, therefore, was subject to the leave requirement in section 50(7) with which the City Council had not complied.

 

68.              Without prejudice to that preliminary objection, Councillor Flynn and Mr. Carvill went on to set out their response to each of the grounds of appeal advanced by the City Council. It is notable, however, that Councillor Flynn and Mr. Carvill did not respond to para. 1 of the City Council's Notice of Appeal which made the point that the Judge had erred in holding that an EIA and an AA was required for the Scheme. They did address this point in their "additional grounds" on which they maintained the decision of the High Court should be affirmed.

69.              Without prejudice to their preliminary objection, it was indicated that Councillor Flynn and Mr. Carvill opposed the grounds of appeal on a number of grounds which included the following:

 

(i)         The Judge did not err in fact or in law or act irrationally in finding that the Scheme was not a "temporary" measure and he was entitled to so find on the basis of the City Council's own affidavit evidence, including Mr. O'Brien's affidavits. They said that the judge's findings were "not only permissible, they were fully supported by the evidence, and any finding to the contrary would have been perverse".

 

(ii)        The Judge correctly held that the Scheme was a project within the meaning of the EIA Directive as being "urban development" within the meaning of the Directive and the implementing Irish measures. Having established that the proposed works fell within the meaning of the term "urban development" the Judge was entitled to determine that it was a project under Class 10(b) in Annex II to the EIA Directive (as transposed in Class 10(b)(iv) in Part 2 of Schedule 5 to the Planning Development Regulations).

 

(iii)       The Judge was also correct in holding that the Scheme constituted "road development" for the purposes of section 50 of the 1993 Act and that it fell within the provisions of the EIA Directive, as implemented into Irish law.

 

(iv)       Councillor Flynn and Mr. Carvill disputed the contention that the EIA screening carried out by the City Council was conducted on "purely precautionary basis".

 

(v)        Councillor Flynn and Mr. Carvill rejected the contention that the Judge erred in failing to uphold the City Council's pleading objection. They denied that the disputed issues were not pleaded and relied on what was said in the EIA screening report under "Sub EIA Threshold Projects requiring an EIA" at section 4.2. They further relied on the (then) recent reference by the High Court (Humphreys J) to the CJEU in Eco Advocacy CLG v. An Bord Pleanįla [2021] IEHC 265. Without prejudice to that, they contended that the Judge correctly allowed these issues to be addressed on their substance and that he had impliedly rejected any pleading objection by the City Council.

 

(vi)       The Judge did not err in concluding that the Scheme constituted "urban development" and correctly applied the decision in City of Westminster. The Applicants further contended that the Council was wrong in arguing that Class 10 in Annex II of the EIA Directive does not include the type of works envisaged in the Scheme and referred in that respect to Class 10(b). 

 

(vii)      The Judge did not err in finding that the Scheme constituted "road development" and referred to section 50(1)(a), (b) and (c) of the 1993 Act. They set out the basis on which it was contended that an EIA screening was required in respect of the Scheme as being a "road development" project.  

 

(viii)     The Judge did not err in misinterpreting and misapplying the information contained in the EIA screening report as alleged by the City Council.

 

(ix)       The Judge did not err in concluding that the EIA screening report and/or the AA screening report prepared on behalf of the City Council proceeded on an incorrect assumption that the Scheme would be temporary or that the EIA screening report was carried out on the basis of a project that was "very different" to the project actually proposed or that the credibility of the AA screening report was "fatally undermined" on that basis.

 

70.              Councillor Flynn and Mr. Carvill then set out the following two "additional grounds" on which they maintained the decision of the High Court should be affirmed:

 

(i)                 If the Judge had erred in holding an EIA was required (which they did not admit), his decision to grant certiorari in respect of the decision to proceed with the Scheme should nonetheless be upheld on the grounds that the City Council's screening decision as to whether an EIA was required was invalid on the grounds set out in para. 36 of the judgment, namely, (a) that the screening report proceeded on the basis of an incorrect assumption that the Scheme would be temporary and (b) that the screening report "seriously underestimated the effects of traffic displacement". In the alternative, it was contended that the screening report failed to take into account a relevant consideration, namely, the effect of traffic on Merrion Road. They maintained that it was not necessary in order to justify the grant of an Order of certiorari to go further and to hold that an EIA was required.

 

(ii)        If the Judge erred in holding that an AA was required for the proposed Scheme (which, again, was not admitted), the decision to grant certiorari in respect of the decision should nonetheless be upheld on the ground that the AA screening report was "fundamentally flawed" in the manner described in para. 39 of the judgment, namely, on the basis that the screening report was based on the erroneous assumption that the Scheme was temporary. They maintained that it was not necessary, in order to justify the grant of an order of certiorari, to go further and to hold that a full AA was required.

 

(3)   The Cross Appeal

 

71.              Councillor Flynn and Mr. Carvill advanced five grounds in their Notice of Appeal:

 

(i)         The Judge erred in concluding that there was no requirement for public participation in AA screening. By reference to case law of the CJEU and Irish case law on Article 6(1)(b) of the Aarhus Convention and Article 6(3) of the Habitats Directive, they maintained that public participation had to be provided for in stage one screening for AA when all options were open, as otherwise the public would be denied the opportunity of participating fully in the process.

 

(ii)               The Judge erred in holding that, although a breach of Article 9a of the EIA Directive was pleaded, the plea lacked the requisite particularity. They relied on the pleas contained at paras. 14 to 19 of the (Amended) Statement of Grounds as well as the reference to the CJEU made by Humphreys J in Eco Advocacy.

 

(iii)       Without prejudice to those grounds, Councillor Flynn and Mr. Carvill contended that the decision of the City Council to carry out the project pursuant to section 38 of the 1994 Act and/or section 179 of the PDA and/or Part 8 of the Planning and Development Regulations constituted a breach of the obligation in Article 9a of the EIA Directive on the grounds of an alleged inherent conflict of interest between the City Council's interests as promoter and potential developer and also as a competent authority deciding on a development proposal. They submitted that the City Council failed to achieve the appropriate separation of functions within administrative confidence.

 

(iv)     In the alternative, it was contended that the proposed development was in breach of natural and/or constitutional justice and, in particular, the principle of nemo iudex in causa sua

 

(v)      Although not a ground of appeal as such, they further contended that, if necessary, the Court could make a preliminary reference to the CJEU pursuant to Article 267 TFEU on the scope of Article 9a of the EIA Directive.

 


 

7. Submissions And Hearing

 

72.              Detailed written submissions were provided on behalf of the City Council and on behalf of Councillor Flynn in advance of the hearing of the appeal. The submissions of the parties on the relevant substantive issues raised in the appeal are considered below in the Court's consideration of those substantive issues. However, because of the developments which occurred during the course of the hearing of the appeal with respect to the making of the decision to commence the Scheme and the rescinding of the Order ET/178/2021, long before the High Court heard the case, it is appropriate to refer to some aspects of the submissions relevant to those issues at this point. 

 

73.              In terms of the making of the decision to proceed with the Scheme which the City Council maintained was made under section 38 of the 1994 Act, it is notable that nowhere is it said in the City Council's submissions (whether in the chronology at para. 10 of those submissions or otherwise) that the decision was made by Mr. O'Brien on 8 February 2021, before the meeting with the elected members of the City Council on the SEAC later that day. That information was only provided to this Court and to Councillor Flynn on the second day of the hearing of the appeal and was only provided the previous evening to the City Council's legal team. Reliance was placed in the City Council's submissions on Order ET/178/2021 which was made by Mr. O'Brien on 25 February 2021, as being the relevant decision to "commence the traffic calming measures that would facilitate the trial on 1st March, 2021" (para. 10). To similar effect, at para. 11(i) of the City Council's submissions, reference was made to Order ET/178/2021 being the order "to commence 'traffic calming measures' to facilitate the Scheme on 1st March, 2021".  That is also the impression given at paras. 62 and 67 of those submissions.  At para. 67, the City Council referred to para. 37(i) of the judgment and noted that "the trial judge accepted that the decision to proceed with the Scheme was not made until the formal order, being the order of executive manager of 25th February, 2021, which in terms referred to the temporary trial of six months duration". This shows that the Judge (and the parties) were proceeding on the basis that Order ET/178/2021 was the relevant decision to proceed with the trial. 

 

74.              Nor was it mentioned anywhere in the City Council's written submissions on the appeal that Order ET/178/2021 (and the other Order made on the same date, Order ET/183/2021) had been rescinded by a further executive order made by Mr. O'Brien on 2 March 2021, Order ET/187/2021.

 

75.              It is understandable that the written submissions filed on behalf of Councillor Flynn made no reference to any decision made by Mr. O'Brien on behalf of the City Council on 8 February 2021, or to the rescinding of Order ET/178/2021. Councillor Flynn proceeded before the High Court and up until the second day of the hearing of the appeal before this Court (as everyone else had done in the High Court, including the Judge) on the basis that the decision to proceed with the trial was made by the City Council by means of the Order made by Mr. O'Brien on 25 February 2021 (Order ET/178/2021). It is, of course, true that Councillor Flynn did rely on four "other decisions" of the City Council which he contended constituted a decision for the purposes of section 50(2) of the PDA and required a certificate from the High Court pursuant to section 50A(7) in Order for the City Council to be permitted to appeal to this Court.

 

76.              These matters - the fact of the decision made by Mr. O'Brien on 8 February 2021, and the rescinding of Order ET/178/2021 - only came to light on the second day of the appeal hearing when, in response to questions raised by members of the court on the first day, counsel for the City Council requested an opportunity to take further instructions from his client.  Having obtained those instructions overnight, counsel then informed the Court of these matters by way of interjection during the course of the replying submissions made by counsel for Councillor Flynn. He told the Court that he had only been informed of those matters after the Court had risen on the previous day. He informed the Court that the decision to proceed with the Scheme under section 38 of the 1994 Act had been made by Mr. O'Brien on 8 February 2021, that the decision under section 94 of the Road Traffic Act 1961 (the "1961 Act") (as amended and substituted by section 37 of the 1994 Act) had been made by the City Council on 25 February 2021, in the form of Order ET/178/2021, and that that Order was rescinded on 2 March 2021 on the basis that it was "time limited" to commence on 1 March 2021 and to proceed for six months thereafter, and that that could not happen because of the stay granted by the High Court on 26 February 2021. The Court was informed that the decision of 8 February 2021 had been made by Mr. O'Brien and was not required to be made, and had not in fact been made, in writing, although the fact of the commencement date for the trial was recorded in the notification to the elected members of the SEAC for the meeting on 8 February 2021. The decision of 8 February 2021 was said to be a conditional decision in that it was conditional, first of all, on the elected members not passing a resolution under section 139 of the 2001 Act directing that the works involved in the Scheme would not proceed and, secondly, on the necessary traffic signs being authorised (as they were by means of Order ET/178/2021 made on 25 February 2021) and in place.

 

77.              At the conclusion of the second day of the hearing of the appeal, the Court remained dissatisfied with the City Council's evidence on the matters which had emerged during the hearing and required further evidence and submissions on the implications of what had emerged. The Court gave a series of further directions including directions that Mr. O'Brien swear an affidavit on behalf of the City Council outlining each decision made in relation to the Scheme, the date of each such decision, the person or persons who made the relevant decision or decisions and the documents (if any) recording them. The City Council was also directed to provide an explanation on affidavit as to why the fact that Order ET/178/2021 of 25 February 2021 was rescinded had not been brought to the attention of the High Court. Councillor Flynn was afforded an opportunity to reply to that affidavit and directions were made for the delivery of further submissions by the parties. Those directions were all complied with.  Mr. O'Brien swore a further affidavit on behalf of the City Council on 24 June 2022, Councillor Flynn swore a replying affidavit on 15 July 2022, and further written submissions were exchanged by the parties. The Court then fixed a date for the resumption of the appeal. 

 

78.              In his further affidavit, Mr. O'Brien provided an explanation for the decision taken in relation to the Scheme. He explained that he made the decision pursuant to section 38 of the 1994 Act to proceed with the trial on 1 March 2021, by means of a decision made by him in the afternoon of 8 February 2021 in the Civic Offices of the City Council prior to his meeting with the SEAC that afternoon and after having approved the presentation that was to be made to the elected members at that meeting. He explained that the decision was not made in writing and that that was "normal practice" as there was no statutory requirement that such a decision be made in writing. He gave a number of other examples of decisions providing for traffic calming measures under section 38 of the 1994 Act which were not made in writing (including the decision to introduce traffic calming measures consisting of bus priority measures on the North and South Quays of Dublin in 2017). Mr. O'Brien explained that the decision was "effectively conditional" in light of a number of other matters.  They included the possibility of the elected members passing a resolution under section 139(1) of the 2001 Act directing that the works would not proceed and the need to make provision for traffic signs (which was done in the form of Order ET/178/2021). Mr. O'Brien explained that following the granting by the High Court (on 26 February 2021) of a stay on the implementation of the decision to proceed with the Scheme pending the determination of the proceedings, he had signed Order ET/187/2021 which rescinded Order ET/178/2021 (and the other order made on the same date, Order ET/183/2021). Mr. O'Brien stated that due to an "oversight" the making of Order ET/187/2021 was not drawn to the attention of the Judge, the City Council's legal representatives or the Applicants.

 

79.              Mr. O'Brien outlined the reason why it was felt necessary to rescind Order ET/178/2021 which was that once the stay was granted, the City Council had to consider how advanced the works were in terms of removing roundabouts and how the works could be made safe for two way traffic in circumstances where it had been intended to have a one-way system with effect from 1 March 2021. All proposed changes to road markings and the erection of new signs were immediately halted pending the outcome of the proceedings and certain further works were necessary to make the area safe. Order ET/178/2021 had rescinded provision for the existing signage at the roundabouts along Strand Way and there was a concern to ensure that there was no confusion for motorists at those roundabouts. The City Council's motivation in rescinding Order ET/178/2021 and the other order made on the same date was to ensure compliance with the stay granted by the High Court and to ensure that appropriate and correct signage and road markings for the two-way operation of the road were reinstated. For those reasons, Order ET/187/2021 was made on 2 March 2021.  The City Council's view was that that order was required in light of the stay. It was not contemplated that the order would have any bearing on the legal issues in the proceedings or appreciated that the order might have relevance. Mr. O'Brien apologised on behalf of the City Council for the omission to bring these matters to the attention of the High Court or to the attention of its legal representatives and those of Applicants in the proceedings. He confirmed that the making of Order ET/187/2021 was first brought to the attention of the City Council's legal representatives after the first day of the hearing of the appeal.

 

80.              Mr. O'Brien also explained in his affidavit why, in the City Council's view, the proceedings and the Council's appeal had not become moot by reason of the rescinding of Order ET/178/2021. He explained that in the event that the City Council was successful in the appeal on the legal issues arising such that a similar scheme could proceed on the Strand Road at some stage in the future, new orders similar to Order ET/178/2021 (and Order ET/183/2021) would be necessary as those orders were time limited to the six month period from 1 March 2021 to 1 September 2021, which had long since passed. A new start date would have to be identified and the elected members of the public would have to be informed. Further, Mr. O'Brien stated that the City Council needed clarity on the legal correctness of the finding by the Judge that the measures in issue in the Scheme required a full EIA and a full AA. He explained that such a finding has "significant operational implications for works or proposed works to any public road, the delivery of future cycleway development, and the carrying out by the Council of traffic calming measures under s. 38 of the Road Traffic Act 1994, which measures are frequently carried out" (para. 37).

 

81.              Councillor Flynn swore a replying affidavit in response to Mr. O'Brien's affidavit.  Understandably, Councillor Flynn drew attention to the fact that although Mr. O'Brien had sworn three affidavits in the High Court, two of them being after 25 February 2021, no mention was made in those affidavits of the fact that Order ET/187/2021 was made on 2 March 2021, and no reference was made to the decision of 8 February 2021, commencing the trial. Councillor Flynn stated that he had understood that the City Council was relying on Order ET/178/2021 as representing the "final and formal decision to proceed with" the trial and that the "challenge to the [trial] proceeded on the basis that this was the 'relevant decision.'" Councillor Flynn also observed that Mr. O'Brien had provided no explanation as to how the "oversight" in bringing these matters to the attention of the Judge, or the City Council's legal representatives or the Applicants in the High Court had arisen. 

 

82.              The parties then exchanged further legal submissions addressing the further issues which arose from these developments and the appeal was listed a further day's hearing. Where relevant, those submissions are addressed when dealing with the issues below. 

 

83.              Arising from these unfortunate developments, it has been necessary for the Court to deal with a number of additional issues on this appeal. They include the validity of the City Council's decision of 8 February 2021 to proceed with the Scheme in the absence of any written decision or record of that decision, whether the appeal became moot as a consequence of the fact that the decision of 8 February 2021 was spent and Order ET/178/2021 was rescinded, and whether the failure to bring these matters to the attention of the High Court and the belated disclosure of them to this Court amounted to a breach of the City Council's duty of candour and/or an abuse of process. Those were the issues which the Court requested the parties to address at the final day of the hearing of the appeal.


 

8. The Issues

84.              Having regard to the pleadings and submissions, it appears to the Court that the following issues require to be addressed: 

 

(1) Whether the Court has jurisdiction to entertain the appeal in light of the provisions of section 50A(7) of the PDA ("the Section 50A issue")

 

(2) Whether the Judge was entitled to find that the proposed Scheme/Scheme was not a "temporary" measure (the "Scheme Status issue")

 

(3) Whether the Judge's finding that the AA screening was inadequate was correct (the"AA Screening issue")

 

(4) Whether, having regard to the grounds set out in the (Amended) Statement of Grounds, the Applicants should have been permitted to make the case that the Scheme was an "urban development" project and/or a "road development" for the purposes of the EIA regime (the"EIA Pleading issue")

 

(5) Whether EIA screening was required in the circumstances here and, if so, whether the Judge's finding that the EIA screening was inadequate was correct (the "EIA Screening issue")

 

(6) Whether the Judge was entitled to find that an EIA and/or AA was required and therefore that planning permission was required for the Scheme (the "Planning Permission issue")

 

(7) Whether the City Council's decision to proceed with the Scheme was vitiated by the absence of a written decision or any written record of it and/or by the absence of any statement of the reasons for the decision (the "Scheme Decision issues")

 

(8) Whether the appeal is moot (the "Mootness issue")

 

(9) Whether the appeal is an abuse of process and/or whether the City Council was in breach of its duty of candour (the "Abuse of Process/Candour issue")

 

(10) Finally, the Court will address the issues raised by Councillor Flynn's Cross-Appeal (the "Cross-Appeal issues").


 

(1)   The Section 50A Issue

 

                                                                  Introduction

 

85.              Councillor Flynn raises a preliminary objection to the City Council's appeal. He says that, in order to bring an appeal, the Council requires a certificate for leave to appeal under section 50A(7) of the PDA. It is common case that the Council did not apply for, and has not obtained, any such certificate and Councillor Flynn argues that it follows that this Court has no jurisdiction to adjudicate on the appeal. That is disputed by the City Council and the issue is addressed at length in the parties' written submissions and the Court also heard oral submissions on the issue.

 

86.              Before addressing the arguments further, the Court notes that the City Council initially adopted the position that Councillor Flynn should not be permitted to raise this objection at all, having regard to the manner in which it was first raised. The City Council says that, when the proceedings came back before the Judge following the giving of judgment (on 9 August 2021), its counsel expressed the view - without contradiction on behalf of the Applicants - that section 50A leave was not required. That is not disputed. The City Council was, it says, taken by surprise when the preliminary objection was then taken in the Respondents' Notice of 16 September 2021 and it expressed that position in correspondence. In response on behalf of Councillor Flynn (Mr Carvill having withdrawn at that stage), it was suggested that the Council's position was "surprising" and that it was "untenable" for a party to adversarial litigation to complain that it had not been forewarned by the other party of the need to comply with some "procedural formality." In any event, Councillor Flynn says - citing SC SYM Fotovoltaic v Mayo County Council (No 2) [2018] IEHC 81 - that the issue of whether section 50A leave is required is one of jurisdiction and that the position of the parties is not determinative.

 

87.              That is clearly so, as indeed the City Council expressly accepts. Even so, it is rather surprising that, when the City Council made it clear to the High Court Judge that its position was that leave was not required, the Applicants did not articulate their position that such leave was in fact necessary. That should have been disclosed in the interests of the proper management of the proceedings and the fact that the proceedings were adversarial does not, in this Court's view, justify staying silent in the circumstances. Having said that, it is evident that even when the preliminary objection was taken in the Respondents' Notice, the City Council elected not to make an application for leave and so it may reasonably be inferred that any earlier disclosure of the Applicants' position would have made no difference to the progress of the litigation. In any event, the objection having been advanced, it requires to be addressed.

 

88.              Section 50A(7) of the PDA provides that:

 

"(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."

 

The references to the Supreme Court in subsection (7) are now to be construed as referring to this Court: see sections 74 and 75 of the Court of Appeal Act 2014. "Section 50 leave" means "leave to apply for judicial review under the order in respect of a decision or other Act to which section 50(2) applies": section 50A(1).

 

89.              Section 50(2) applies to:

 

" any decision made or other Act done by—

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV

(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 relating to the compulsory acquisition of land, or

(d) without prejudice to the right of appeal referred to in section 37 as read with section 37R—

(i) the competent authority (within the meaning of the Aircraft Noise (Dublin Airport) Regulation Act 2019), or

(ii) the Board in its capacity as the appeal body from decisions of such competent authority."

 

90.              Here, Councillor Flynn says, there was a "cascade of decisions" made by the City Council in the performance or purported performance of functions conferred under the PDA which came within the scope of section 50(2)(a) of the PDA and which therefore are within the scope of section 50A(7). That is so, it is said, even if the ultimate decision made by the City Council - the Scheme Decision - was made under another enactment i.e. section 38 of the 1994 Act.

 

91.              Four such "decisions" were identified, as follows:

 

Decision No 1 - The decision by the City Council (Mr O'Brien) made on 14 January 2021 to adopt the CAAS EIA screening report. This "decision" was recorded in ET/39/2021 and had the effect of "screening out" a full EIA.

 

Decision No 2 - The decision made by the City Council (Mr O' Brien), also on 14 January 2021, to adopt the CAAS AA screening report. This "decision" was also recorded in Order ET/39/2021 and had the effect of "screening out" a full AA.

 

Decision No 3 - The "decision" made by the City Council that the Scheme was exempt from the requirement to obtain planning permission pursuant to section 4(4) of the PDA.

 

Decision 4 - The "decision" made by the City Council that the Scheme was exempt from the requirements of section 179 of the PDA (Local authority own development), having regard to the provisions of section 179(6) and in particular section 179(6)(bb).

 

 

 

 

 

                                                     Submissions

 

92.              Counsel for Councillor Flynn acknowledged that any ouster of this Court's appellate jurisdiction from the High Court had to be "clear and unambiguous", citing this Court's decision in North Western Turbine Action Group v An Bord Pleanįla [2020] IECA 355. Here, it was said, section 50A(7) of the PDA clearly satisfied that requirement.  As regards the scope of section 50(2). Counsel emphasised the amendment of that subsection effected by the Planning and Development (Strategic Infrastructure) Act 2006. Section 50(2)(a) as enacted had applied only to a decision of a planning authority on an application for permission or under section 179 of the PDA whereas the subsection substituted by the 2006 Act referred to any decision or other act done by a planning authority or a local authority in the performance or purported performance of any function under the Act. That was, counsel said, very broad language, referring in that context to observations of Haughton J in An Taisce v An Bord Pleanįla [2015] IEHC 604, at para. 64 and similar observations of Barrett J in Dunnes Stores v Dublin City Council [2017] IEHC 148. Whereas previously it was clear that a final decision on a planning application had to be made before judicial review proceedings could be brought, the effect of the 2006 amendments was, counsel suggested, that any intermediate decision made by a planning authority under the Act could be challenged, citing the decision of the High Court (Charleton J) in MacMahon v An Bord Pleanįla [2010] IEHC 431.

 

93.              The City Council emphasised the need for a clear and unambiguous ouster of jurisdiction in light of the provisions of Article 34.4 of the Constitution. It submitted that the preliminary objection was "misconceived" as it was based on the "incorrect premise" that the decision authorising the Scheme (the "Scheme Decision") was made under the PDA whereas it was in fact made pursuant to section 38 of the 1994 Act. A decision made qua road authority under that section was not "a decision or other act" within the scope of section 50(2)(a) and therefore section 50A(7) did not operate to restrict or exclude the City Council's right to appeal the High Court's order quashing that decision.

94.              The primary relief sought by the Applicants in the proceedings is an order of certiorari quashing "the decision of ... Dublin City Council to proceed with the Strand Road Scheme". That decision (i.e. "the Scheme Decision") was made pursuant to section 38 of the 1994 Act and, as is explained elsewhere, the proposed Scheme was also "facilitated" by an order made pursuant to section 95 of the 1961 Act (as amended) for the provision of certain road signs along the route of the proposed Scheme.

 

95.              In their original Statement of Grounds, the Applicants had also sought a large number of declarations, including declarations specifically directed to the validity of the EIA screening and AA screening undertaken by the City Council. When granting leave to seek judicial review on 22 February 2021, the High Court (Meenan J) gave liberty to the Applicants to reduce the number of reliefs sought to "core declarations or reliefs" and it appears that the same Judge made an order permitting the amendment of the Statement of Grounds on 25 March 2021. In any event, an Amended Statement of Grounds was filed on 4 May 2021. In addition to the order of certiorari referred to above, it sought a declaration that the decision of the City Council was unlawful and without legal effect as being in breach of the EIA Directive, the principle of nemo iudex in causa sua and/or the Habitats Directive. A declaration directed at the State Respondents' transposition of Article 9a of the EIA Directive was also sought. Although the Amended Statement of Grounds no longer sought declarations directed to the validity of the EIA and AA screening undertaken by the City Council, the grounds directed to those issues remained.

 

96.              The City Council is undoubtedly correct insofar as it says that its decision to adopt traffic calming measures pursuant to section 38 of the 1994 Act was not a "decision or other Act" in the performance or purported performance of a function under the PDA. It is the validity of that decision - the Scheme Decision - that is at the heart of these proceedings, and it was that decision that was quashed by the High Court in its order of 9 August 2021.

 

97.              However, as is evident from the High Court's judgment, its conclusion that the Scheme Decision had to be quashed followed from its conclusions that the EIA and AA screening had been inadequate and its further conclusions that the "Strand Road Scheme" actually required an EIA and AA to be carried out and therefore required planning permission. That is the context in which the preliminary objection made by Councillor Flynn falls to be assessed.

 

 

      Decisions Nos 1 and 2: The EIA and AA Screening Decisions

 

98.              Part X of the PDA contains provisions relating to Environmental Impact Assessment under the EIA Directive, including provisions relating to screening for environmental impact assessment: see sections 176A-176C. However, the provisions of the PDA are not exclusive. Many other statutory codes provide for the carrying out of environmental impact assessments in relation to particular categories of development. Thus, for instance, Part IV of the 1993 Act contains provisions for the environmental impact assessment of certain categories of road development.

 

99.              Part XAB of the PDA contains provisions relating to Appropriate Assessment under the Habitats Directive, including (in section 177U) provisions for screening for appropriate assessment. Again, however, the provisions of the PDA in this respect are not exclusive. Extensive provision is made for the implementation of the Habitats Directive, including the provisions relating to appropriate assessment, in the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) ("the Habitats Regulations").

 

100.          The text of ET/39/2021 makes no reference to the PDA, the 1993 Act, the EIA Directive or the Habitats Directive or Regulations. However, the CAAS EIA screening report refers to the EIA Directive, the 1993 Act (and in particular section 50 of that Act) and Part X of the PDA, as well as the Planning and Development Regulations 2001 and the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) before concluding that the proposed Scheme did not correspond to any project type specified in any such legislation. The CAAS AA screening report refers to the Habitats Directive and the Habitats Regulations before concluding that the implementation of the proposed Scheme was not foreseen to have any significant effects on European sites.

 

101.          There is, in truth, a significant lack of clarity as to the basis on which these screening exercises were conducted. Screening is generally undertaken in the context of an application for planning permission or for some other development consent. That was not the position here, however, as no application for planning permission was made by the City Council. The situation is further complicated by the fact that the City Council's position is that it was under no obligation to conduct any form of EIA screening because, on its case, the Scheme was not an Annex I or Annex II project (in contrast, the City Council now accepts that AA screening was mandatory, given the proximity of the proposed development to a protected site). A further complexity is that, quite apart from any implementing measures, the core provisions of the EIA Directive and the Habitats Directive appear to have direct effect vis-a-vis State authorities such as the City Council: see, for example, Case C-201/02 Wells (EIA Directive) and Case C-127/02, Waddensee (Habitats Directive).

 

102.          There is no doubt that CAAS had regard to the Schedules to the Planning and Development Regulations in considering whether the proposed Scheme required environmental impact assessment. It also had regard to the Roads Act 1993. In doing so, it was - correctly - concerned with identifying whether the proposed Scheme potentially fell within any of the projects listed in Annex I or Annex II. It concluded that the Scheme did not correspond to any such project. That conclusion was endorsed by the Council and so no environmental impact assessment was undertaken. Planning authorities do have a specific statutory function under the PDA to carry out AA screening: see sections 176A - 176C of the PDA. However, there is no indication in the material before the Court that, in adopting the CAAS Report, the City Council was, or considered itself to be, exercising a function under those provisions. In addition, of course, a planning authority may be required to carry out a screening exercise when assessing an application for planning permission. But that did not arise here.

 

103.          In the Court's view, it has not been established - and certainly it has not been clearly established - that the EIA screening decision made by the City Council was a decision made in the exercise or purported exercise of any function under the PDA. That was, indeed, accepted by counsel for Councillor Flynn in argument. Insofar as the decision had any specific legal basis, it may be that, as counsel for the City Council suggested in argument, that basis was the EIA Directive. In any event, it has not been shown to have been a decision made under the PDA. The burden is on Councillor Flynn to establish that the appellate jurisdiction of the Court has clearly been ousted. He has not met that burden.

 

104.          The same position essentially pertains in respect of the AA screening decision. Section 177U of the PDA confers a function on planning authorities to conduct AA screening in certain circumstances (though not in the case of local authority own development). However, there is no indication in the material before the Court that, in adopting the CAAS AA screening report, the City Council was, or considered itself to be, exercising a function under section 177U. The Council is a "public authority" for the purposes of Regulation 42 of the Habitats Regulations which confers on such authorities a function of carrying out AA screening (and, where appropriate, AA) in respect of proposed "projects", which include projects under the Road Traffic Acts (Second Schedule). That would appear to be a better fit for the exercise undertaken here though again there is no indication in the material before the Court that, in adopting the CAAS AA screening report, the City Council was, or considered itself to be, exercising a function under Regulation 42. In any event, it has not been shown to have been a decision made under the PDA. The burden is on Councillor Flynn to establish that the appellate jurisdiction of the Court has clearly been ousted. He has not met that burden.

 

    Decision No 3 - Exemption from Requirement to Obtain Planning Permission

 

105.          Section 4(1)(aa) of the PDA provides that  "development by a local authority in its functional area" shall be exempted development for the purposes of the Act. That is subject to section 4(4) of the PDA, which provides that "development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required."

 

106.          Whether or not any particular form of proposed development is exempted development for the purposes of the PDA is a matter on which the developer (whether that developer is a person, a company or a local authority) must take its own view. The application of an exemption is not conditional upon a decision by the relevant planning authority nor does the opinion of a planning authority that an exemption is applicable (or not) enjoy any particular status or effect under the PDA. Section 5 of the PDA perhaps requires some qualification of that general statement, but no section 5 declaration is relied on in these proceedings. Section 5 apart, the opinion of a planning authority that a development is, or is not, exempted, has no special status. That is true generally and it is true of the particular opinion formed by the City Council here that the proposed traffic calming measures in Sandymount constituted exempted development having regard to section 4(1)(aa) of the PDA. That opinion was contestable in precisely the same manner as any opinion formed by any other developer regarding the possible application of a planning exemption prescribed in or pursuant to section 4.

 

107.          It follows, in the Court's view, that, in forming the view that the Scheme here was exempted development, the City Council was not performing or purporting to perform any function under the PDA and "Decision No 3" therefore is outside the scope of section 50(2) and, therefore, of section 50A(7) of the PDA.

 

Decision No 4 - Exemption from the Requirements of Section 179 of the PDA

 

108.          The Court takes the same view of this "decision". Indeed, the position is clearer still, having regard to the terms of section 179(6)(bb). That provides that section 179 shall not apply to proposed development which " consists of works, other than works involving road widening, to enhance public bus services or improve facilities for cyclists provided under  section 95  (as amended by  section 37  of the  Road Traffic Act 1994 ) of the  Road Traffic Act 1961  or under  section 38  of the  Road Traffic Act 1994. " The works in issue clearly fell within the scope of section 179(6)(bb) and therefore, as a matter of law, section 179 had no application to them. That outcome resulted from a decision made by the Oireachtas, rather than any decision made by the City Council in performance or purported performance of any function under the PDA. Decision No 4 is therefore outside the scope of section 50(2) and, consequently, outside the scope of section 50A(7) of the PDA.

 

109.          The preliminary objection to this Court's jurisdiction to hear the City Council's appeal must therefore be rejected.

 

(2) The Scheme Status Issue

 

110.          As already noted, the Judge concluded that the Scheme was not "temporary" (Judgment, para. 23). That conclusion had significant implications for the resolution of the proceedings. It was one of the principal grounds for the Judge's conclusion that the EIA screening was inadequate (Judgment, paras. 34 and 36). It also "fatally undermine[d] the credibility of the screening report for AA" in the Judge's view (Judgment, para. 39).

 

111.          As the Judge acknowledged, and as the City Council emphasised in its appeal, Mr O'Brien had deposed that the Scheme was temporary. His affidavit of 25 February 2021 referred to "a six-month trial" (para. 13) and expressly denied that any decision had been made that the Scheme would become permanent (para. 14). That Affidavit identified the commencement date as 1 March 2021 (para. 38). In a further Affidavit sworn by him on 22 March 2021 for the purposes of verifying the City Council's Statement of Opposition (which itself contains a number of references to "a six month trial" at paragraphs 4 and 10(iv)), Mr O'Brien expressly averred that "[c]ontrary to what has been alleged by the Applicants, the duration of the Scheme will be for a period of 6 months and no decision has been made by the Council that the Scheme will be made permanent" (para. 26). He went on to explain that the success of the trial would be assessed and a public consultation would take place prior to the end of the 6 month trial period and that a report would be presented to Councillors with a recommendation on whether to continue or remove the measures (paras. 28 and 29). In a further Affidavit sworn by him on 10 May 2021, Mr O' Brien stated that "the Council have repeatedly stated that the Strand Road Scheme is a 6-month trial which include a consultation prior to the end of the 6-month trial period" and he again denied that the Council had always intended to "keep the lay-out" (para. 14).

 

112.          In addition, Mr O' Brien exhibited a number of documents which referred to the fact that the Scheme was temporary. Of these, perhaps the most significant is the order of 25 February 2021 (Order ET/178/2021) which referred to a proposed "six month trial, commencing on 1 March 2021" and which stated that the relevant engineer had "recommended that the following traffic measures be implemented on a temporary basis from Monday 1st March 2021 for a period of six months" (emphasis in the original). [1] A City Council document exhibited by Mr. Carvill, entitled Strand Road Trial Rapid Deployment Cycle Route and dating from August 2020, contains multiple references to a "six month trial" as does the Trial of Strand Road Rapid Deployment Cyle Route Report on Public Consultation (October 2020). The document prepared by Mr O' Brien as a notification to Councillors under section 138 of the 2001 Act (dated 9 November 2020) also referred to "a trial period of six months." The Information Leaflet issued by the City Council on 12 February 2021 highlighted the fact that it was six-month trial. In addition, the EIA and AA screening reports prepared by CAAS both refer to the Scheme being put in place "for a temporary six-month period." Lastly, in correspondence referred to by the Judge in his judgment, the City Council's Law Agent had stated that "the trial period will be for a period of 6 months."

113.          The Judge noted the City Council's submission that, in the absence of any cross-examination of its deponents, it was not open to the Applicants to contest the temporary nature of the Scheme. Although acknowledging that there was substance in that submission, the Judge was nonetheless of the view that he was entitled to have regard to all the affidavit material and exhibited documentation in determining whether the Scheme could be said to be temporary (Judgment, para. 20). He considered that the absence of a definitive end date cast considerable doubt as to whether the trial was temporary, referring in that context to the City Council's stated intention to review the position prior to the end of the trial and then make a recommendation to Councillors as to whether to continue or remove the measures (paras. 21 and 22). In his view, it could not be said that the cycleway would only be there for 6 months. The most that could be said was that the trial was "reviewable" and a "reviewable cycleway" was not a "temporary cycleway" (para. 23).

 

114.          The Judge's findings here were made on the basis of the affidavit evidence and exhibits. There was no oral evidence or cross-examination. Thus Hay v O'Grady [1992] 1 IR 210 has no relevance. Nevertheless, the City Council bears the burden of demonstrating that there is some error in the Judge's finding (Ryanair Ltd v Billigfluege.de GmbH [2015] IESC 11, per Charleton J (Hardiman, McKechnie, Clarke and MacMenamin JJ agreeing) at para. 11 and this Court must begin its analysis "from the firm assumption that the trial Judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the Judge has clearly erred in the findings made or inferences drawn in a material respect" (AK v US [2022] IECA 65, per Murray J (Haughton and Barniville JJ agreeing) at para. 53). Subject only to that "limited deference" to the decision of the trial Judge, this Court is " free to correct errors of fact as well as of law, and mistaken inference as well as erroneous application of principle" (ibid).

 

115.          The City Council argues that the Judge erred in rejecting its evidence as to the temporary nature of the Scheme. That evidence, it says, established that there was to be a six-month trial commencing on 1 March 2021 and concluding at the end of August 2021. For the Scheme to continue beyond that period, a fresh decision would have had to have been taken by the Council and, unless such a decision had been made prior to the end of the six-month trial period, the Scheme would have ceased and the signage etc would have had to have been removed. The Applicants dispute the suggestion of error, contending that the Judge was entitled to conclude as he did, having regard to all of the documentary material before him.

 

116.          As already explained, it emerged in the course of the hearing of the appeal that the order of 25 February 2021 (Order ET/178/2001) - which the parties and the Court had understood to be the authorisation for the Scheme pursuant to section 38 of the 1994 Act - in fact related to the installation of traffic signs under section 95 of the 1961 Act (as amended). No written section 38 order or decision exists. That is far from satisfactory (whether the absence of a written decision or record of decision affects the validity of the decision is addressed later in this judgment). A written record would have avoided any uncertainty as to the precise scope of the decision made and the parameters of the authorised project. Even so, the available material - including but not limited to the order of the 25 February 2021 - makes it sufficiently clear that what was proposed, and what was authorised, was a six-month trial. That was stated in all the project documents. It was also stated repeatedly and unambiguously on affidavit by Mr O' Brien. If the Applicants wished to challenge that evidence, then they should have sought to cross-examine Mr O'Brien: RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63 ("RAS Medical") per Clarke CJ at para. 88. As the former Chief Justice there noted, it is an unfair procedure to suggest in argument that a witness's evidence should not be regarded as credible on a particular basis without giving the witness the opportunity to deal with the criticism of the evidence concerned. That is, unfortunately, what occurred here.

 

117.          The fact that there was a possibility that a further decision might be made by the City Council authorising an extension of the Scheme, whether on a permanent basis or otherwise, did not indicate that the Scheme as authorised was other than temporary. The document cited by the Judge at para. 21 of his judgment clearly envisaged that any retention of the Project would involve a further decision. That seems plainly to have been the case - the signs authorised by the order of 25 February 2021 (Order ET/178/2021) were authorised for a six-month period only. That was true also of the variations to the HGC Cordon effected by the second order of 25 February 2021 (Order ET/183/2021). The section 138 notification to the elected members was also expressly based on a six-month trial. More generally, the entire consultation process had been conducted on that basis. The unavoidable implication of the Judge's finding on this issue was that the City Council and Mr O'Brien had consistently misrepresented the Scheme both to councillors and to the public. In this Court's view, there was no evidence to sustain such a serious finding, which reflected adversely and unfairly on the integrity of the City Council and its officers and, in particular, Mr O' Brien.

 

118.          Accordingly, in this Court's view, the High Court Judge erred in finding that the Scheme was not temporary.


 

(3) The AA Screening Issue

 

119.          Ultimately, the City Council accepted in argument that it was required to conduct an AA screening in the circumstances here. In any event, an AA screening report was prepared by CAAS in January 2021. That report concluded that implementation of the Scheme was not foreseen to have any likely significant effects on any European sites. and considered by the Council. Aspects of that report were criticised by an environmental expert, Mr Jim Dowdall, who swore an affidavit on behalf of the Applicants and his criticisms were in turn disputed by Mr Fingleton from CAAS. The Judge did not refer to or seek to resolve that dispute in his judgment. The sole basis on which the Judge condemned the AA screening report was that its conclusions were based on the premise that the Scheme was temporary. On the basis of his conclusion that the proposed Scheme was not temporary, the credibility of the report was, in his view, fatally undermined: Judgment, para. 39. In light of this Court's conclusion that the Judge erred in concluding that the Scheme was not temporary, it follows that the Judge's conclusion is unsustainable.


 

(4)   The EIA Pleading Issue

 

Introduction

 

120.          An argument forcefully advanced by the City Council on appeal was that the Applicants should not have been permitted by the Judge to argue that the Scheme constituted either an "urban development project" or a "road development project" since neither point had been pleaded in the Amended Statement of Grounds. That argument is addressed below.

 

Submissions

 

121.          Ground 9 of the Notice of Appeal asserts that the Judge "erred in rejecting and even failing to record...the Council's pleading objection to the Applicants' claim that the Scheme was either an urban development project and/or a road development", and that the City Council was prejudiced "by being deprived of an opportunity of adducing evidence relating to such matters"

 

122.          The Judge's findings that the Scheme constituted "urban development" and "road development" for the purposes of the EIA Directive were made in the face of the objection made by the City Council both in the Statement of Opposition and in its written and oral submissions in the court below that the Applicants had failed to identify any EIA project into which the Scheme fell, the City Council's contention being that the failure to plead the type of EIA Class meant that the Amended Statement of Grounds did not state "precisely" the ground or give particulars as required by Order 84, r.20(3) RSC, the sub-rule of which contains stringent procedural requirements which allow little room for manoeuvre either for Applicants or for the Court after the leave order is made (People over Wind v. An Bord Pleanįla [2015] IEHC 271 at para. 54, per Haughton J).  

 

123.          Indeed, counsel for the City Council says that the City Council's pleading objection was "aggressively" raised in the Statement of Opposition. He points out that even when the Applicants filed their Amended Statement of Grounds, they did not take the opportunity, as they could have, to particularise what their case was as regards the EIA Directive: the first the City Council learned about the cycleway being a category of project falling within the EIA Directive was from the Applicants' written submissions in the High Court where reference was made to the cycleway constituting "urban development". The other category, "road development", on which they were also ostensibly relying, was only first articulated in their oral submissions in the High Court. The City Council thus contends that the assertion that the Scheme constituted "an urban development project" was impermissibly only made for the first time in the Applicants' written legal submissions in the High Court and even more impermissibly, the claim that the Scheme was "road development" only advanced in oral submission at the hearing. 

 

124.          The City Council says that the substantive determination made by the High Court has major implications for it and for all local authorities, and has serious impacts on the public, traffic calming measures, existing and future Schemes and other projects.  It is said that such a determination should not have been made in a case where it was not pleaded adequately on the urban development/road development ground; nor was leave granted to advance such ground. Counsel submits that had the City Council knew that the Applicants were seriously putting forward that what was being done was "urban development" and/or "road development" it would have adduced evidence to counteract that contention and put before the court examples of the kind of road improvement schemes (to which, it is accepted, the EIA Directive does apply) and, equally, would have provided illustrations of urban development projects attracting EIA assessment which might trigger the requirement for planning permission and hence EIA, all for the purpose of establishing that the Scheme was not such urban or road development for EIA screening purposes.  However, as the City Council did not know the case the Applicants ultimately advanced, it did not adduce such evidence. Accordingly, the City Council was deprived of the opportunity to do so because of the defect in the Applicants' pleadings, and suffered particular prejudice insofar as the Applicants had only made the case that the cycleway project constituted road development in oral submissions in the court below.  

 

125.          Counsel for the City Council confirmed that he had objected in the court below when the Applicants raised the issue of road development in their oral submissions, and he had opened the relevant case law to the court and pointed out that the City Council had been deprived of the opportunity to put in evidence. He acknowledged, however, that he had not asked the Judge for time in which to adduce such evidence. This, it is said, was in circumstances where the Court had facilitated the parties with an early hearing date. 

 

126.          As the Judge did not rule on the City Council's objection at the hearing, it was only after the judgment was delivered that the City Council learned that its pleading objection in relation to the urban development/road development issue had not been accepted, albeit the Judge had clearly accepted the City Council's pleading point with regard to Article 9a of the EIA Directive.

 

127.          Counsel for Councillor Flynn fairly acknowledges that there was no express plea in the statement of grounds that the EIA screening process was required and/or inadequate because the Scheme constituted road development and/or urban development. He also accepts that the City Council had advanced its pleading objection in the court below once reference was made by the Applicants in their written/oral submissions to the project being either urban development and/or road development and that this objection was not addressed by the Judge at hearing or in the judgment. Counsel, however, disputes the City Council's contention that the Judge wrongly permitted arguments to be made that were not pleaded and asserts that there was no diversion from the grounds upon which leave was granted. He contends that, albeit not expressly pleaded, it was eminently derivable from the Amended Statement of Grounds that the case being made by the Applicants was that the cycleway was an EIA project and that the City Council had failed to comply with certain obligations that relate to such projects, specifically, to conduct a proper screening exercise.  Furthermore, the City Council had responded to that argument in its Statement of Opposition by contesting the proposition on which the obligation to carry out screening depends, namely that the project was in principle subject to EIA.

 

128.          It is said that the arguments advanced by the Applicants in the High Court arose essentially from the manner in which the City Council itself had approached the Scheme. In the first instance, the City Council had commissioned an EIA screening report. That Report had referred both to road development as defined in the 1993 Act and urban development as defined in the Planning and Development Regulations. Thus, the bases for EIA screening were set out in the City Council's own screening report. Counsel submits that in those circumstances, it was not obvious to the Applicants that they had to positively plead that the project constituted road development or urban development or that it was a project that fell under the EIA Directive. The fact that the City Council had raised the EIA Directive is, counsel says, of itself, sufficient for the pleading objection to founder. Hence, it would be wrong for the Court to overturn the High Court by reason of a purely technical argument relating to pleadings.

 

129.          Essentially, Councillor Flynn relies on the fact that the Applicants had pleaded the EIA Directive, following which leave was obtained. Consequent on this, it was open to the Applicants to proceed on the basis that the Directive applied, and that the classes subsequently identified by the Applicants in their written and oral submissions in the court below likewise applied within the parameters of the pleadings in the Amended Statement of Grounds since these classes were contained in the screening report with which the Applicants had taken issue, and in circumstances where the City Council in its Statement of Opposition were contesting the proposition that the Scheme was in principle subject to EIA. 

 

130.          Even if the Court were not to agree that the matter was properly pleaded, the case law has established that to some extent, there may be a slightly more indulgent approach to be taken to a deficiency in pleadings where the circumstances point to a possible breach of EU law obligations, and where the party against whom the breach is being asserted is itself a public law body and therefore an emanation of the State and thus liable under the duty of sincere cooperation to do its utmost to ensure that EU environmental law obligations are met. It is also said that the case law suggests that an appellate court is entitled to take a broader approach than that of the trial court. 

 

Discussion

 

131.          It is well established in the case law that claims for judicial review are confined to the grounds on which leave is granted and that it is not open to an Applicant to advance new arguments during the course of the hearing which go beyond the scope of the ground or grounds upon which leave was granted, or to raise new grounds (Rushe v An Bord Pleanįla [2020] IEHC 122 at para. 103 per Barniville J, Reid v An Bord Pleanįla (No.1) [2021] IEHC 230 at para. 11 per Humphreys J and Sweetman v An Bord Pleanįla [2020] IEHC 39 at para. 16 per McDonald J (upon all of which the City Council relies)).

 

132.          The importance of pleadings, and the well-established principles and authorities in regard to the identification of the grounds of challenge in a judicial review was reaffirmed by the Supreme Court in Casey v Minister for Housing Planning and Local Government [2021] IESC 42 at paras. 29-32, and emphasised by Humphreys J in Ballyboden Tidy Towns v An Bord Pleanįla [2021] IEHC 648 at para. 25. The dictum of Barr J in Kerry Fish (Ireland) Unlimited Company v Kerry County Council [2022] IEHC 29, namely that the relevant case law makes clear that "parties cannot obtain leave on one basis and then attempt to go beyond the grounds pleaded in the statement of grounds, either by way of averments in subsequent affidavits, or in their legal submissions to the court" (at para. 42) is also of note, as is the decision in FB v Minister for Justice and Equality [2020] IECA 89, where this Court allowed the Minister's appeal on the basis that the High Court quashed a decision of the Minister on a ground which was not pleaded and thus in respect of which leave was not granted (see paras. 52-63).  

 

133.          Indeed, as recently observed by Murray J in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanįla [2024] IESC 28 "[t]the governing principles are hardly in doubt".  As Murray J puts it:

 

 

"The Statement of Grounds required to initiate an application for leave to seek judicial review must identify the relief sought, and the 'particular grounds upon which each such relief is sought' (O. 84 R. 20(2)(ii)).  It is not sufficient for these purposes to give as a ground 'an assertion in general terms of the ground concerned' but must 'state precisely each such ground (O. 84 R. 20(3)).  A Statement of Grounds may be amended both at the time of the leave application (O. 84 R. 20(4)) or thereafter (O. 84 R. 23(2)), but absent such an amendment the Rules are emphatic in their stipulation that 'no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement' (O. 84 R. 23(1)).  It is because of these provisions that it has been stressed that judicial review is a procedure in which 'leave must be sought in relation to specific reliefs aimed at specific decisions, on specific grounds' (Khashaba v. Medical Council [2016] IESC 10 (per O'Malley J at para. 56)" (para. 41).

 

 

134.          Thus, to paraphrase Murray J, the power of the court to grant relief must be exercised within the contours of the case as defined by the pleaded grounds. It is against Murray J's succinct distillation of the relevant principles, and indeed certain utterances of the CJEU (discussed further below), that the pleadings in this case fall to be interrogated.

 

135.          The Applicants' pleas as regards the applicability of the EIA Directive were set out in the Amended Statement of Grounds, firstly under the heading "(1) Breach of Article 9a of EIA Directive", as follows:

 

"14. Local Authority own-development pursuant to s. 38 of the 1994 Act and/or s.179 of the 2000 Act and/or Part 8 of the Regulations constitutes a breach of the obligation in Article 9a of the EIA Directive as there is an inherent conflict of interest where one body Acts as both developer and as competent authority deciding on a development proposal.

 

15. While s.179(6) of the 2000 Act requires that an application is made to the Board if EIA and/or AA is required, there is no requirement for a screening assessment to be carried out by the Board (or any other external body) when a local authority is proposing to carry out development. This is contrary to Article 9a of the EIA Directive. 

 

16. Further, or in the alternative, Article 9a of the EIA Directive is not transposed in the 2000 Act or at all and the State Respondents are in breach of their obligations to transpose Article 9a.

 

17. The Department of Planning, Community and Local Government's consultation document, "transposition of 2014 EIA Directive (2014/52/EU) in the Land Use Planning and EPA Licensing Systems", states that Article 9a of the EIA Directive is not required to be transposed in national law and that: "In the Planning Code there is no instance where an authority is both the promotion of a project and the competent authority for determining an EIA". This is an incorrect interpretation of Article 9a of the EIA Directive and is not correct in the case of a local authority-owned development under Part 8 of the Regulations.

 

18. Without prejudice to the foregoing, Article 9a of the EIA Directive has direct effect and the Applicants are entitled directly to rely on it to impugn s.179 of the 2000 Act and/or Part 8 of the Regulations."

 

136.          Paras. 20-28 of the Amended Statement of Grounds address, under the heading "Defects in EIA Screening", alleged defects in the EIA screening conducted by the City Council wherein it is pleaded, inter alia, that the City Council was in breach of Article 4(4), Article 6(2) and Article 6(4) of the EIA Directive as well as sections 173, 175 and 176B of the PDA.

 

137.          In its Statement of Opposition, the City Council noted (at para. 11) that the grounds set out at by the Applicants at paras. 14 -18 (as set out above) were principally directed to the State Respondents and, insofar as that was the case, it was for the State Respondents to reply. Accordingly, the City Council expressed its intention to limit its pleas to the pleas which expressly or by implication alleged invalidity in the decision made by the City Council. It duly went on to deny that its decision was invalid. 

 

138.          The City Council's overall position was that the challenge to its decision was misconceived. Para. 12 of the Statement of Opposition states:

 

"No specific allegation is made against the Council Decision at paragraphs 14 to 18 of E(iii) of the Statement of Grounds.  Article 9a has no application to the Scheme as it is not a type of project which an EIA is or could be required.  The EIA screening carried out by the Council was done on a purely precautionary basis and not pursuant to any legal requirement to carry out same.  The Applicants have failed to identify what category of EIA project the Scheme could even fall within".

 

139.          On a without prejudice basis, the City Council went on to plead that Article 9a had no application to the City Council's decision as Article 9a pertained to the carrying out of an EIA and not screening for EIA (para. 13).  Even if Article 9a was applicable, there could have been no breach of same by the City Council: whilst the first limb of Article 9a requires Member States to ensure that competent authorities performed their duties under the EIA Directive objectively and so as to avoid conflicts of interest, it did not mandate any specific criteria or conditions for determining these issues which must be transposed into domestic legislation (para. 14). 

 

140.          At para. 15, the City Council pleaded that Article 9a did not require an independent body to be set up to determine an application for development consent made by a local authority.  What was required was appropriate "functional separation" within the local authority, not an entirely separate legal organisation or the elimination of any hierarchy above the persons involved in the handling and determination of the application for development consent.

 

141.          Para. 16 of the Statement of Opposition pleads that the City Council could have availed of its own in-house expertise and personnel in respect of the preparation of the EIA and AA screening reports, but instead it retained the service of independent, specialist consultants (CAAS) to do so. At para. 17, the City Council denies that Article 9a has direct effect.  Paragraph 18 denies that the proposed development is in breach of natural and/or constitutional justice and, in particular, the principle of nemo iudex in causa sua, as alleged by the Applicants, the assertion, it is said, being "in general terms of the grounds concerned that is not properly particularised in accordance with the requirements of O.84, r.20(3) of the Rules of the Superior Courts."

 

142.          Paras. 19-37 of the Statement of Opposition refute the claims that its EIA screening was defective.

 

143.          As already referred to, whilst no mention was made in the Amended Statement of Grounds that the Scheme constituted urban development and/or road development for EIA purposes, it is the case that in their written submissions in the High Court, the Applicants raised a number of points in respect of the EIA Directive and the conclusions reached in the CAAS Report.  At para. 28, they pointed to Class 10(b)(iv) in Part 2 of Schedule 5 of the Planning and Development Regulations 2001 which requires EIA for an urban development project which would involve an area greater than two hectares in the case of a business district, ten acres in the case of other parts of a built-up area and 20 hectares elsewhere.  With reference to para. 4.1 of the CAAS report, it was contended that the Scheme "is clearly an urban development of the type specified in Class 10(b)(iv)" and that "[i]nsofar as it does not exceed any relevant threshold, it must still be subject to screening for EIA.  As is evident from Class 15, if a sub-threshold development is likely to have significant effects on the environment, EIA is required."  In those circumstances, the Applicants' stated position in their written submissions was that City Council's argument that EIA screening was not required "lacks merit" (para. 32).

 

144.          In its written submissions to the Court below, the City Council countered the Applicants' argument on the basis that the claim they were "impermissibly" advancing that the Scheme was "urban development" without having amended their grounds. On a without prejudice basis, it went on to assert that the Scheme did not correspond or have similar characteristics to any types of projects that could be considered to be urban development as identified in EU Commission guidance.

 

145.          As the High Court judgment records, at hearing, the Applicants repeated the contention made in their written submissions that the proposed cycleway was "an urban development project" caught by the regulations implementing the EIA Directive.  They also argued, for the first time, that the cycleway was a project that fell within the provisions of S.I. no. 279 of 2019 which amended section 50 of the 1993 Act (which refers to road projects likely to have significant effects on the environment).

 

146.          On the other hand, the City Council maintained its position that the EIA Directive had no application to the proposed Scheme since it did not correspond to any project type in the relevant legislation implementing the EIA Directive. Albeit the City Council had carried out a "screening report", it maintained that that had been conducted on a purely precautionary basis. The Judge ultimately determined that although a breach of Article 9a was pleaded, the Applicants had not set out, with sufficient particularity, the precise points they had advanced at the hearing, namely, lack of separation between conflicting functions within the City Council. He did not, therefore, accept the submissions made by the Applicants on the Article 9a issue (para. 36). Patently, he did not record (or appear to consider) the equally, if not more compelling, objection which the City Council had made both in its pleadings and written and oral submissions, namely, that the Applicants had not pleaded any EIA Class under which it was alleged the Scheme fell.

147.          Without any reference to or ruling on the City Council's objection to the Applicants' reliance on urban development and road development as the pillars upon which the requirement for EIA screening rested, the Judge determined that the Scheme constituted both urban development and/or road development for EIA screening purposes. Whilst these substantive findings are considered elsewhere in this judgment, the immediate question is whether there is merit in the complaint that the Judge failed to have regard to the City Council's pleading objection with regard to the roads/urban development issue.

   Decision on the EIA Pleading Issue

 

148.          In the view of the Court, and to paraphrase Murray J in Concerned Residents of Treascon and Clondoolusk, given the importance both of  the manner in which a claim is pleaded, and the strictness with which that requirement will be enforced, it was to be expected that the Judge would have addressed the City Council's pleading objection with regard to the Applicants' urban development/road development arguments which objection, the Court is satisfied, was well founded, for reasons shortly to be explained. However, the Judge did not do that, notwithstanding the City Council's objection to the Applicants seeking to rely on the concepts of urban development and/or road development as a basis upon which relief could be granted only having been raised at a very late stage in the proceedings.

 

149.          It cannot plausibly be said that the grounds formulated in the Amended Statement of Grounds were to be understood as a pleading to the effect that the Scheme constituted an urban development project or road development with the meaning attributed to those concepts in, respectively, the EIA Directive, the Planning and Development Regulations 2001 and the 1993 Act. Save the particulars pleaded which invoked Article 9a of the EIA Directive and Article 4 and Article 6 thereof (paras. 11-18 and 20-28), the Amended Statement of Grounds is blatantly devoid of any particulars that point to the Scheme constituting either urban development or road development (in the sense that those concepts are defined within the EIA Directive and the relevant implementing domestic legislation).

 

150.          There appears to be no reason as to why the Applicants could not, either in the original Statement of Grounds or in the Amended Statement of Grounds, have particularised the two classes upon which they subsequently relied, namely, "road development" and "urban development".  No explanation was given as to why those classes were not particularised in circumstance where at the time of its delivery, the Applicants were by then firmly on notice of the City Council's contention that EIA screening was not required because the EIA Directive was not applicable to what the City Council were describing as a purely traffic management exercise. More pertinently, they were on notice of the City Council's contention that they had not pleaded what category of project within which the Scheme fell.

 

151.          In an exchange between the Court and counsel for Councillor Flynn, it was accepted that the Applicants had only identified, in a generic sense, the EIA grounds upon which they were relying at a very late stage in the proceedings, namely, in their written submissions to the High Court as far as urban development was concerned, and as far as road development was concerned, in their oral submission to that court.

 

152.          That concession notwithstanding, in both the written and oral submissions to this Court on behalf of Councillor Flynn, the case that is made is that as the EIA Directive was in fact pleaded, the arguments subsequently raised by the Applicants with regard to the Scheme constituting urban development and/or road development should be regarded as having been "acceptably clear" (in the sense articulated by Humphreys J in Atlantic Diamond Limited v. An Bord Pleanįla [2021] IEHC 322 (at para. 23)) to the City Council from the outset.

 

153.          The complaint in Atlantic Diamond was that the statement of grounds in that case did not plead an error in relation to material contravention. In the view of Humphreys J, that was not fatal since it was "acceptably clear [from other grounds pleaded] what point the Applicant was making". Thus, the fact that the Applicant had not used the words "material contravention" was "irrelevant", Humphreys J opining that it was "absolutely clear that the Applicant's argument is situated firmly in the context of the material contravention aspect of the decision and that the Applicant is entitled to go on to argue that any non-compliance with para. 3.2 has a consequence in terms of that aspect." (para. 23).

 

154.          Counsel for Councillor Flynn submits that the "acceptably clear" formula by which Humphreys J considered the pleading objection raised in Atlantic Diamond should commend itself to this Court such that, when considered in their proper context, the pleading issues in respect of which the City Council complains have no merit. As to the relevant "context", counsel pointed to what is pleaded at Ground 2 in the Amended Statement of Grounds and headed "Defects in EIA Screening" (paras. 20-25 and 27- 28). Whilst he acknowledges that there is no plea in those paragraphs that the Scheme constitutes a project that falls within the EIA Directive or the implementing legislation, he nevertheless submits that the pleadings as they stand are predicated on the proposition that the Scheme is a project to which the EIA Directive applies and that the Statement of Opposition had put that in issue and, therefore, issue had been joined by the parties on that point. 

 

155.          Counsel places particular reliance on the fact that the City Council carried out its screening pursuant to the expert report compiled by Mr. Fingleton of CAAS. The screening report had assessed the question of whether the Scheme fell within the scope of the EIA Directive by reference to the 1993 Act and the concept of urban development under Class 10(b)(iv) of the Planning and Development Regulations 2001.  Accordingly, counsel contends that those were the bases relied on by the Applicants to test the proposition of whether the Scheme was or was not an EIA project. Whilst accepting, in reply to a question from the Court, that if the screening report had simply said that Annex I and Annex II projects did not apply the Applicants' opposition to the City Council's pleading objection would be more difficult, counsel's consistent position, nevertheless, was that the matter had to be looked at in the full context of what was contained in the screening report.

 

156.          Essentially, therefore, Councillor Flynn's position is a simple one: the Applicants were effectively contending that the Scheme was one to which the EIA Directive applied; that proposition having been expressly contested by the City Council in its Statement of Opposition (against a background of the City Council's own expert report having assessed matters by reference to the EIA Directive), it was thus clearly within the scope of the leave granted to the Applicants for them to later substantiate their proposition by reference to the very materials relied on by the City Council in order to test the proposition as to whether the Scheme was or was not an EIA matter. It is said that this was the application of the "context" approach to which Humphreys J refers in Atlantic Diamond. It is also said that once the City Council joined issue with the application of the EIA Directive, it was free, from that point onwards, to bring forward whatever evidence it wished to support its position.

 

157.          In the first instance, the Court is not persuaded by Councillor Flynn's reliance on Atlantic Diamond as support for the proposition that matters here were properly pleaded. In Atlantic Diamond the pleadings were found to have been sufficiently particularised by the reference in three of the pleaded grounds to a named paragraph in the Urban Development and Building Height Guidelines for Planning Authorities (December 2018), such that the absence of the words "material contravention" from the pleadings did not amount to a breach the requirements of Order 84, r.20. In the view of the Court, however, the situation here does not remotely compare to the factors which led Humphreys J to conclude as he did in Atlantic Diamond. Save that the EIA Directive is referenced in the Amended Statement of Grounds (and certain Articles invoked in relation to discrete issues), Councillor Flynn has not pointed to any part of the pleadings from which it could be derived that part of the case the Applicants were making was that the Scheme constituted urban development and/or road development as defined in the EIA Directive or the implementing domestic legislation.

 

158.          In aid of his argument that the Court should not take an overly restrictive approach to the interpretation of pleadings, Councillor Flynn argues that it is settled that a national court is entitled to raise a point of its own motion where it concerns EU law. He cites especially the reference made by Humphreys J to the CJEU in Eco Advocacy regarding the scope of pleadings where matters of EU law are concerned. The relevant question was whether the general principles of the primacy of EU law and/or cooperation in good faith, either generally or in the specific context of environmental law, confer on national courts a power or even a duty to examine such pleas in law notwithstanding that they are inadequately set out in writing.

 

159.          Before looking at how the CJEU responded, it is worth pointing out that the instinctive response of the City Council to Councillor Flynn's reliance on Eco Advocacy was that the reference made to the CJEU had not restricted Humphreys J from taking a strict view of the requirements for precise pleading in a subsequent case (see Ballyboden Tidy Towns v An Bord Pleanįla [2021] IEHC 648 at para. 25, where the Judge dismissed a claim based on Article 6(3) of the Habitats Directive that had not been properly pleaded).

 

160.          In any event, as it transpired, Case C-721/21 Eco Advocacy CLG v An Bord Pleanįla ECLI:EU:C:2023:477 (15 June 2023) did not provide any comfort for Councillor Flynn's contention. On the clear understanding that the procedural rule in question (Order 84 RSC) provides that an application for judicial review must state precisely each ground, giving particulars where appropriate and identifying in respect of each ground the fact or matters relied on, and that an Applicant may not rely upon any grounds or any relief sought at the hearing other than those pleaded, the CJEU reformulated the question referred by Humphreys J as asking, in essence, whether EU law must be interpreted as precluding a national procedural rule such as is provided for in Order 84 RSC. The CJEU answered the question in the negative, stating:

 

"...EU law must be interpreted as not precluding a national procedural rule according to which, first, an application for judicial review, both under national law and under provisions of EU law such as Article 4(2) to (5) of and Annex III to, Directive 2011/92 or Article 6(3) of Directive 92/43, must state precisely each ground the facts or matters relied upon as supporting that ground and second, an Applicant may not rely on any grounds or any relief sought at the hearing other than those set out in that statement" (para. 29)

 

161.          In our view, this represents a comprehensive rejection of Councillor Flynn's contention that once a question of EU law is raised that overrides any perceived frailty in pleadings.

 

162.          By reason of the foregoing, Councillor Flynn's contention, effectively, that EU law provides a kind of bulwark against the requirement for precise pleading in cases such as the present is simply wrong.

 

163.          The law is clear. As put by Murray J in Concerned Residents of Treascon and Clondoolusk:

 

"The parties are expected to identify the alleged frailties in a challenged decision before they seek leave for judicial review and, where they have not done so in some respect and the justice of the case so requires, the Court may in certain circumstances enable the pleadings to be amended...The purpose of proceedings by way of judicial review is thus to enable a party who had identified a legal error in a decision of, or process undertaken by, a public body to challenge the legality of that decision on the basis thus identified. The grant of leave is the extension of a permission to pursue that ground of challenge, not the opening of an investigation into whether the decision or process is unlawful on any grounds that might subsequently present themselves in the course of the ultimate hearing of the matter." (para.43; emphasis added)

 

164.          The fact of the matter is that the Applicants' pleaded case at paras. 14-18 ("Breach of Article 9a of EIA Directive") of the Amended Statement of Grounds was largely directed to the alleged failure on the part of the State Respondents to properly transpose the provisions of Article 9a of the EIA Directive (as issue to which we will return when considering Councillor Flynn's cross-appeal). There is, however, no pleaded claim under the heading that the Scheme constituted urban development or road development. Nor is any such claim advanced at paras. 20-28 of the Amended Statement of Grounds under the heading "Defects in EIA Screening", or indeed elsewhere in the Amended Statement of Grounds. In essence, none of the pleas advanced in the Amended Statement of Grounds present a formulation that touches upon the argument that was later advanced by the Applicants in the High Court, namely that the cycleway constituted an urban development project and/or a road development as identified in the EIA Directive and the relevant transposing legislation.

 

165.          Insofar as Councillor Flynn relies on the contents of Mr. Fingleton's report as a mechanism by which the pleadings may be viewed as coming within the ambit of Order 84 on grounds of "context", in the absence of establishing the requisite context (which Councillor Flynn has not succeeded in doing so by pointing to any paragraph in the Amended Statement of Grounds from which the requisite context can be derived), the case law (including that of the CJEU) is firmly against the proposition which Councillor Flynn advances.

 

166.          In all the circumstances, the City Council's primary argument on the EIA Screening Issue, namely that the Applicants failed to identify and plead either of the two bases upon which they later contended the Scheme constituted a project for the purposes of the EIA Directive, is well made.

 

167.          In light of the Court's findings as to the deficient nature of the pleadings in the case, the question that now arises is whether the City Council is entitled to succeed in its challenge to the Judge's finding that for the purposes of the EIA Directive the Scheme constituted urban development and road development on the basis that the Judge ought never to have embarked on a substantive analysis of these matters since same were not pleaded in accordance with Order 84 RSC.

 

168.          Tempting as such a course may be given the pleading deficiencies in this case, we do not believe that it would be satisfactory to set aside the order of certiorari granted by the High Court on this basis, without examining the basis upon which the Judge concluded that the Scheme fell within the EIA Directive. This is so for the reasons which follow.

 

169.          The fact of the matter is that whilst perhaps it cannot be said that there was a full argument on all issues in the court below especially given the very late stage at which the issue of the cycleway constituting road development was advanced, it is the case that in this Court, there has been full argument on the question of whether the Scheme constituted an urban development project and/or road development for the purposes of the EIA Directive: both parties had the opportunity, in their respective written and oral submissions, to put forward their respective arguments on the applicability of the EIA Directive. More fundamentally, bearing in mind the supremacy of EU law as recognised by Irvine J in Friends of the Environment v An Bord Pleanįla [2019] IESC 53, and as acknowledged in the Supreme Court's decision in Ballyboden Tidy Towns v An Bord Pleanįla [2022] IESC 47, the Court is of the view that it should determine the substantive issue of whether the Scheme is a project to which the EIA Directive applies, particularly in light of the fact that the Scheme in issue here is one of many such schemes planned and/or already undertaken by the City Council, and given the possibility that the Scheme here may be revived.

 

170.          It is the case that the City Council asserts that it has suffered prejudice by reason of the deficiency in the pleadings and says that had it known that the Applicants were going to make the case they ultimately advanced at the hearing it would have adduced additional evidence to show that the matters did not fall within the categories in the EIA Directive that are subject to EIA. In the view of the Court, however, the City Council's complaints in these regards have been overtaken by the robust submissions on the substantive issues advanced by both parties in the course of the appeal.

 

171.          In those circumstances, and whatever might have been the case in the court below as regards prejudice faced by the City Council in meeting a claim not pleaded (in particular as regards the late stage which the issue of the Scheme constituting road development was raised), there can be no prejudice to the City Council, at this remove, by the Court proceeding to determine the issue of whether EIA screening was required on the basis of the Applicants' failure to plead their case in accordance with the relevant rules and the case law, and in the Court proceeding to decide whether the Judge was in error in finding that the Scheme constituted both urban development and road development for the purposes of the EIA Directive such that EIA screening was required. It is to that question that the Court now turns.

 


 

(5)   The EIA Screening Issue

 

An overview of the EIA legislative regime

 

172.          The first thing of note as regards whether EIA screening was required in this case is that the EIA Directive is concerned with projects. Article 1(2) defines "project" as:

 

"-the execution of construction works or of other installations or schemes,

-other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources".  

 

173.          Article 2(1) requires Member States to adopt all measures necessary to ensure that "before development consent" is given "projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment". Those projects are defined in Article 4, read in conjunction with Annex I and Annex II.

 

174.          Article 4 provides:

 

"1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

or

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

3. Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. ..."

 

175.          The first of the relevant categories (for the purposes of this case) requiring EIA assessment is found in Class 7 of Annex I which provides, in relevant part:

 

"...

(b) construction of motorways and express roads;

(c) construction of a new road of four or more lanes or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new roads are realigned and/or widened section of road would be 10km or more in a continuous length".

 

176.          Section 50(1)(a) of the 1993 Act in transposing Annex I provides as follows:

 

"A road development that is proposed that comprises any of the following shall be subject to an environmental impact assessment:

(i) the construction of a motorway;

(ii) the construction of a busway;

(iii) the construction of a service area;

(iv) any prescribed type of road development consisting of the construction of a proposed public road or the improvement of an existing public road." 

 

177.          The prescribed types of road development for the purposes of section 50(1)(a)(iv) are the construction of a new road of four or more lanes, or the realignment or widening of an existing road so as to provide four or more lanes, where such new, realigned or widened road would be 8km or more in length in a rural area, or 500 metres or more in length in an urban area; and the construction of new bridge or tunnel which would be 100 metres or more in length (per Regulation 8 of S.I. no. 119 of 1994). 

 

178.          Section 50(1)(b) of the 1993 Act empowers An Bord Pleanįla to direct that any road development consisting of the construction of a proposed public road or the improvement of an existing public road which is likely to have significant effects on the environment be subject to EIA.

 

179.          Section 50(1)(c) is in the following terms:

 

"Where a road authority...considers that any proposed road development (other than a development to which paragraph (a) applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be likely to have significant effects on the environment, it shall inform An Bord Pleanįla in writing prior to making any application to the Bord for an approval referred to in section 51(1) in respect of the development."

 

Here, Councillor Flynn places particular emphasis on section 50(1)(c) as the most likely basis for the Judge's finding that the Scheme fell under section 50 of the 1993 Act (of which more anon).

 

180.          Pursuant to section 50(1)(d) of the 1993 Act, a road authority is required to decide whether the construction of a public road or the improvement of an existing road located on a European or protected or designated site would be likely to have significant effects on the environment.  

 

181.          Annex II to the EIA Directive defines the projects referred to in Article 4(2) of the EIA Directive and includes under the heading "10. Infrastructure Projects", at (b), "Urban Development Projects, including the construction of Shopping Centres and Carparks".  Under (e) there is "Construction of roads, harbours and port installations, including fishing harbours (projects not included in Annex 1)".

 

182.          Whilst not all of the projects listed in Annex II require "construction", it is the case that Class 10(b) "Urban development projects", which is in issue in this case, is concerned with "construction", as indeed is Class 10(e). As we will come to see, the City Council's principal argument against the Judge's finding that the Scheme constituted urban development is that the project here did not involve any element of construction in the sense that term has been interpreted in the relevant case law, a contention which Councillor Flynn disputes.   

 

183.          Class 10(b) and Class 10(e) of Annex II are addressed in the Planning and Development Regulations 2001(Schedule 5 Part 2 Class 10).

 

184.          Class 10(b)(iv) of those Regulations provides that assessment is required in respect of:

 

"Urban development which would involve an area greater than 2 hectares in the case of a business district, 10 hectares in the case of other parts of a built-up area and 20 hectares elsewhere.

(in this paragraph, 'business district' means a district within a city or town in which the predominant land use is retail or commercial use". 

 

185.          Class 10(dd) provides that assessment is required in respect of "All private roads which would exceed 2000 metres in length".

 

186.          Pursuant to Class 15 of the Planning and Development Regulations 2001, a sub-threshold development under Part 2 requires an assessment if it would be "likely to have significant effects on the environment, having regard to the criteria set out in Schedule 7".

187.          The upshot of the legislative provisions just quoted is that if the Scheme is, as the Judge found, "road development" within section 50(1) of the 1993 Act and/or "urban development" for the purposes of 10(b)(iv) of the Planning and Development Regulations it must be subject to screening.  If "screened in" it will require EIA.  In domestic law that means, as far as the City Council is concerned, the exemption under the PDA in respect of local authority owned development, which constitutes a sui generis class of exempted development, would be lost. In other words, if a local authority proposes to carry out development which requires EIA, then it cannot be exempted development, and the local authority must apply to An Bord Pleanįla for development consent. As matters stand, that is the position the City Council now finds itself on foot of the Judge's findings in this case, albeit as already referred to and indeed emphasised again later in this judgment, that is not a position upon which Councillor Flynn stands over.

 

                                     The evidence before the High Court

 

188.          Although the City Council maintains that EIA screening was not required, it is a matter of fact that the City Council commissioned an EIA screening report, which was prepared by CAAS in January 2021.

 

189.          As noted earlier, CAAS had regard to, inter alia, the Planning and Development Regulations and the 1993 Act. For the purposes of section 50(1)(a) the 1993 Act, the screening report concluded, inter alia, that the proposed scheme did not provide for the construction of a motorway and did not include the construction of a busway or service area or any new bridge or tunnel or for the construction, realignment or widening of a road to provide for four or more lanes (these conclusions can hardly have been in doubt). As far as section 50(1)(b)-(d) was concerned, the conclusion was in the following terms:

 

"The measures included in the scheme are restricted to existing road surfaces and kerbing. It is considered unlikely to have significant effects on the environment, within the meaning of the EIA Directive..."

 

190.          Albeit that the Scheme was to be located adjacent to three ecological sites, the conclusion was that "no part of the scheme is located on any of these sites. The review against Annex III criteria...finds that the scheme can be considered unlikely to have significant effects on these sites, within the meaning of the EIA Directive."

 

191.          For the purposes of Class 10(b)(iv) of the Planning and Development Regulations (urban development), the screening report stated as follows:

 

"Commission guidance lists a range of projects, stating that these or other projects with similar characteristics can be considered to be 'urban development'. These include:

·         Shopping centres

·         Bus garages

·         Train depots

·         Hospitals

·         Universities

·         Sports stadiums

·         Cinemas

·         Theatres

·         Concert halls

·         Other cultural centres

·         Sewerage or water supply networks

The proposed scheme does not correspond to or have similar characteristics to any of these types of projects"

(The reference to "Commission guidance" was a reference to the EU Commission's "Interpretation of definitions of project categories of annex I and II of the EIA Directive, 2015, EU".

 

192.          Section 4.1 of the screening report addressed "Subthreshold Development", in the following terms:

 

"Schedule 7 of the Planning and Development Regulations specifies the criteria for determining whether or not a sub-threshold development is required to be subject to EIA. As the project does not correspond to any project type in the Roads or Planning and Development legislation, ... it is not considered to be "sub-threshold development". (Emphasis in bold in original).

 

193.          Albeit having already concluded that the Scheme did not correspond to any project type under the EIA Directive and so could not be considered "sub-threshold", the screening report proceeded to scrutinise the Scheme by reference to the Annex III criteria as transposed into Schedule 7 of the Planning and Development Regulations.  The reason given for so doing were the "wide ranging requirements of s.50(1)(b) to (d)" of the 1993 Act that any road development or road improvement project which would be likely to have significant effects on the environment should be subject to EIA. The screening report's conclusion based on Schedule 7 criteria was that the environmental effects of the scheme "can be anticipated to be temporary and not likely to be significant within the meaning of the Directive".

 

194.           The screening report ultimately concluded that "[t]he scheme does not correspond to any project type in the relevant Roads or Planning Development legislation. It can be considered not to comprise 'sub-threshold development' and it can be screened out for Environmental Impact Assessment purposes on that basis".

 

195.          As we know, the report was "adopted" and "approved" by the City Council on 14 January 2021.

 

                                            The Judge's Conclusions

 

196.          The Applicants' argument that the Scheme constituted urban development and/or road development for the purposes of the EIA Directive is addressed at paras. 25-30 of the High Court judgment. The Judge noted that Class 10(b)(iv) in Part 2 of Schedule 5 to the Planning and Regulations requires an EIA for "urban development which would involve an area greater than two hectares in the case of a business district, ten hectares in the case of other parts of a built-up area and twenty hectares elsewhere."  (para. 28) He noted that whilst the proposed Scheme did not involve such an area, Class 15 of Part 2 (as provided for in S.I. no. 454 of 2011) provided as follows:

 

"Any project listed in this Part which does not exceed a quantity, area or other limit specified in this Part in respect of the relevant class of development but which would be likely to have significant effects on the environment, having regard to the criteria set out in Schedule 7."

 

197.          At para. 29, the Judge noted that what urban development encompasses had been considered in a number of English authorities, and that the decision in City of Westminster was of particular relevance. There, the applicants had maintained that certain infrastructure required for the congestion charging scheme in central London was an "urban development project" for the purposes of the EIA Directive. The Judge went on to quote from the judgment Kay J who considered that this did not amount to an "urban development project".

 

198.          Opining that what was involved in terms of infrastructure in the congestion scheme in issue in City of Westminster were "the cameras, the signs and certain road-markings", the Judge considered that, unlike the factual matrix in that case, what was involved in the provision of the proposed Scheme "goes beyond signs and certain road markings." He stated:

 

"...The cycleway will require the removal of a traffic island at the junction of Strand Road and Merrion Road, the removal of a number of mini roundabouts and the placing of barriers to separate the cycleway from the road carrying traffic. This comes within the nature of building or construction as referred to by Kay J." (para. 29)

 

199.          The Judge was further satisfied (at para. 30)  that the proposed Scheme was "road development" for the purposes of section 50 of the 1993 Act (as amended by S.I. no. 279 of 2019), leading him to ultimately conclude that "the cycleway trial does fall within the provisions of the EIA Directive, as implemented in domestic law." (para. 30)

 

200.          Having concluded that the Scheme fell within the terms of the EIA Directive, at paras. 31-36, the Judge next addressed the EIA screening carried out by CAAS. He noted the screening report's comments (under the heading "Roads Legislation") that the Scheme could be considered unlikely to have significant effects on designated ecological sites located near the cycleway and then went on to consider the screening report's comments on the criteria "pollution and nuisances", expressed in the Report in the following terms:

 

"The proposed scheme is likely to temporarily reduce air pollution, noise and other temporarily traffic related nuisances along the length of the scheme. It will temporarily affect traffic levels elsewhere due to displacement of northbound traffic from Strand Road. Temporary effects of displaced traffic are considered further below." (para. 34)

 

201.          As to this, the Judge opined:

 

"It will be noted that in this short comment the word "temporarily" or "temporary" has been used four times. As I have found, contrary to what is asserted by the City Council, the cycleway project is not temporary it follows that the criteria "pollution" and "nuisances" has not been correctly considered in the screening report." (para. 30)

 

202.          The screening report had also considered "the nature of the impact" of the proposed cycleway and commented as follows:

 

"According to modelling carried out by the NTA in October 2020 (ref Appendix I), removal of northbound traffic will reduce traffic volumes by approximately 40%. During the trial operational period, it can be anticipated that traffic, noise and air quality impacts the scheme area will be less than at present.'

 

The NTA traffic modelling predicts that the displaced northbound traffic will disperse through a number of alternative routes for the duration of the scheme. During the a.m. peak (the 'worst case') the changes in traffic on alternate routes are estimated to range from —9% to +63% (ref Appendix I). This displaced traffic will be monitored and managed by DCC Transportation and Environment section in accordance with their normal remit to manage City traffic efficiently and sustainably.

 

Impacts will be temporary and are not likely to be significant, within the meaning of the Directive."

 

203.          As to the screening report's findings in this regard, the Judge considered that whilst it was the case that the Court must have some deference to the expertise of CAAS, "common sense would indicate that the screening report has not properly addressed 'the nature of the impact' of the proposed cycleway to a considerable extent." (para. 35)

 

204.          In the view of the Judge, the screening report was "based on a project that was very different to the cycleway trial that is actually proposed".  It had proceeded "on an incorrect assumption that the cycleway would be temporary". Moreover, despite having obtained data on traffic displacement from the NTA, "the report seriously underestimated the effects of traffic displacement" which, in the Judge's view, meant that "the screening report is inadequate in circumstances where an EIA is required."

 

205.          Having thus found that an EIA was required for the proposed Scheme, and that the screening report commissioned by the City Council was "fundamentally flawed", the Judge concluded that "[i]t follows that if the cycleway is to proceed, the requirements of the EIA Directive...must be addressed and complied with".

 

206.          Noting that his findings concerning had "clear implications" for the City Council's reliance on a number of statutory provisions, the Judge went on to state:

 

"The City Council has relied on the provisions of s. 38 of the Road Traffic Act, 1994 maintaining that the cycleway is a 'traffic calming measure' and would have the exemption provided for in s. 179 (6) (bb) of the Act of 2000 and, thus, be excluded from the public consultation procedure provided for by s. 179. However, that exemption does not apply where the development requires an EIA (s. 179 (6)(d)) and an AA under the Habitats Directive (as transposed into domestic law) (s. 179 (6)(e)). Thus, if the proposed cycleway is to proceed it will have to go through the planning process." (para. 44)

 

 

 

  Submissions

 

207.          As was made clear to this Court (and to which reference has already been made), Councillor Flynn does not stand over the Judge's finding that an EIA, and hence planning permission, was required in this case, and, indeed, he agrees that the Judge's conclusion in that regard did not follow from the premises that were established at trial.  His counsel points out that the case made by the Applicants in the High Court was that EIA screening was required, and that the screening assessment for EIA as carried out by the City Council was flawed. However, the High Court had gone further than the Applicants had invited it to do, finding that not only was the EIA screening flawed but that an EIA (and indeed planning permission) was actually required in this case. We note that if the High Court judgment is left undisturbed, then, on the face of it, the City Council must apply for planning permission to An Bord Pleanįla, were it to embark on a similar Scheme in the future.

 

208.          Whilst conceding that the Judge went too far in finding that an EIA and planning permission was required, Councillor Flynn, nevertheless, stands over the Judge's determination that the Scheme fell within the EIA Directive on the basis that the Scheme constituted urban development and road development. He also stands over the finding that there was a significant flaw in the EIA screening report such that the City Council could not then lawfully have proceeded on the basis of that report. Thus, although accepting the proposition that the Scheme might not necessarily require EIA, Councillor Flynn contends that that does not take away from the validity of the Judge's finding that EIA screening was required, and that the screening carried out by the City Council was deficient for the reasons set out in the judgment.

 

209.          Conversely, the City Council's overarching argument is that the finding of the High Court was premised on a "fundamental error insofar as the Strand Road Scheme is not a type of project for which an EIA is or could be required" (Ground 8 of the Notice of Appeal). Albeit now conceding that it had to conduct a screening assessment for the purposes of the Habitats Directive, the City Council maintains that EIA screening was not mandatory for the purposes of the EIA Directive because the Scheme did not come within Annex I or Annex II of the EIA Directive, or the relevant transposing legislation. 

 

210.          The City Council disputes the suggestion that there is a potential environmental impact sufficient to trigger the requirement to carry out screening for EIA either in the context of the impact of the works carried out and/or the traffic diversion arising from the works and restrictions, or a combination of both. It argues that neither of the two elements which comprise the Scheme, namely, (i) the carrying out of works (described by the City Council as "minimal") such as the removal of roundabouts, the installation of traffic signs and the installation of segregation on the road between the roadway and the two-way cycle path in order to facilitate the cycleway and (ii) traffic diversion either individually or in combination gives rise to the requisite environmental impact in order for EIA screening to be triggered. In short, the City Council's position is that once the works are carried out, the impact of them will effectively have been absorbed and they are no longer ongoing works. As to the traffic impact, it relies on the conclusions reached in the screening report. 

 

211.          The City Council says the obligation for EIA screening only arises if the proposed development falls within the classes of projects specified in the EIA Directive and the implementing legislation which, it says, is not the case. It is submitted that, patently, the project involved here - a cycleway instituted under the auspices of "traffic management" - is not of a class designated for EIA assessment, either in the EIA Directive or the transposing legislation. It also points to the fact that it is expressly stated at subsections 4.1 and 5 of the screening report that as the Scheme did not correspond to any project type in the relevant legislation implementing the EIA Directive, it could not comprise sub-threshold development.

 

212.          The City Council's position is that the issue of whether the Scheme falls within any relevant EIA category must essentially be determined by ascertaining whether the project is "construction". It asserts that the Scheme is not amenable to EIA screening unless it can be considered a "construction" project.

 

The Scheme as an "urban development project" - Submissions

 

213.          Turning now to the first of the two bases upon which the Judge found that the cycleway constituted a project for EIA purposes and hence, EIA screening was required. The City Council argues that the finding that the Scheme constituted "an urban development project" is incorrect for the following reasons.  First, the Judge made no reference to the fact that the Scheme did not correspond to or have similar characteristics to any type of project such as shopping centres, bus garages, train depots, hospitals or cinemas which are identified by the European Commission Guidance as matters comprising urban development.  Secondly, the Judge did not refer to case C-332/04 Commission v. Spain ECLI:EU:C:2006:180 (which was cited to him) where the essential characteristic of an urban development project is that the project is urban "in nature" and thus not dependent on the location of the project.  It is submitted that a cycleway is not a project which is urban "in nature". 

 

214.          It is also said that the Judge misinterpreted the decision in City of Westminster by inaccurately summarising the argument in the case as being "... that certain infrastructure required for the congestion charging scheme in Central London was an 'urban development project' for the purposes of the EIA Directive" for the purposes of concluding that the project in issue here fell within the nature of building or construction when in fact the argument advanced in that case was that the traffic congestion scheme (and not the enabling infrastructure) was an urban development project.  Kay J held that it was not, as the congestion scheme was "essentially a traffic management scheme". 

215.          The City Council thus asserts that, here, similarly, the Scheme is a traffic management scheme, taken under section 38 of the 1994 Act as a series of "traffic calming measures".  Section 38(1) of the 1994 Act is set out elsewhere in this judgment.  The City Council points to the fact that there is no tailor-made EIA screening requirement for a measure under section 38 (unlike, it is accepted, the position as regards the Habitats Directive where there is a general obligation to screen), and says that all that was involved in the cycleway project were trivial works, to wit, a few markings, the erection of a couple of signs and the removal of some roundabouts - matters of a routine nature, none of which amounts to building or construction such as to fall within the category of urban development for EIA purposes. 

 

216.          On the other hand, counsel for Councillor Flynn submits that the Judge was correct in his conclusion that the Scheme was an "urban development project" within the meaning of Class 10. He also says that the Judge correctly derived from the City of Westminster case the principle that a traffic management scheme required something in the nature of building and construction in order to constitute an urban development project. It is said that the Judge properly identified a number of elements of the Scheme that fell into the scope of building and construction, based on the evidence before him.  In this regard, counsel references section 2.2 of the EIA screening report which identified that the Scheme would involve "civil works" and "alterations" to existing road surfaces and kerbs.

 

217.          Albeit described in the screening report as "minimal", Councillor's Flynn's contention is that the "civil works" referred to are nevertheless "works" and, so, fall within the definition of project in Article 1(2) of the EIA Directive. He asserts that the evidence established a significant intervention at the junction of Merrion Road and Strand Road, where a traffic island was demolished with a view to a reconfigured junction being put in its place. Accordingly, the construction element and/or civil works involved was evident in the removal of some roundabouts and the imposition of a concrete island at Merrion Gates. In all of those circumstances, Councillor Flynn argues that the Judge (relying on para. 65 of the judgment in City of Westminster) correctly found that the scheme in issue here constituted an urban development project "in the nature of building or construction" and that what was involved was not the imposition of mere signage or the imposing of legal constraints on motorists. 

 

218.          It is submitted on behalf of Councillor Flynn that whilst the English courts have said (and upon which City Council relies) that where there is no physical intervention in the landscape then that falls outside the parameters of urban development within the meaning of the EIA Directive, here, there were physical interventions which are capable of falling within the concept of urban development for the purposes of Class 10 (b)(iv) of the Planning and Development Regulations 2001.

 

219.          Councillor Flynn also relies on the fact that the scheme in issue here was explicitly acknowledged as an urban area in the screening reports. He further points out that, as acknowledged in the AA screening report, one of the consequences of the development will be to attract increasing number of visitors to the area. This, it is argued, makes the Scheme the sort of development that falls within infrastructure projects under the rubric of urban development and thus within Class 10(b)(iv), and, hence, amendable to EIA screening on that ground.

 

The Scheme as an "urban development project" - Decision

 

220.          Notably, both the City Council and Councillor Flynn, in aid of their respective submissions on the issue of urban development, rely on the dicta of Kay J in City of Westminster. There, the issue concerned a plan by the Mayor of London to develop a congestion charging system for Central London so as to reduce traffic. One of the complaints in the challenge brought to the scheme was that the traffic modelling was inadequate.  In effect it was contended that the Mayor of London had insufficient information upon which to make a valid decision - a shortcoming which would have been overcome by the commissioning of an EIA or the holding of public inquiry.  The other argument made was that Westminster was disabled as a consultee because of the insufficiency of the information supplied to it.  The catalogue of deficiencies alleged included effects on local traffic, the impacts on air quality, the visual impacts of the signs and the effect of increased traffic on orbital routes. 

 

221.          It was common case that the Mayor of London had decided not to carry out an EIA, being satisfied that what was being proposed was a traffic management scheme which was not likely to have significant environmental effects. He also considered that the scheme was not one to which either relevant domestic regulations or the EIA Directive itself applied.

222.          The central question for determination in the case was whether the congestion charges scheme could be considered as an "urban development project" within the meaning of Annex II to the EIA Directive. On this issue Kay J concluded:

 

"In my judgment, it would strain the words of the Directive beyond a purposive construction to hold that "urban development project", in the precise context in which they appear, embrace this Scheme which is, as Mr. George submits, essentially a traffic management scheme. I am disposed to the view that, in general, "urban development projects" connotes rather more in the nature of building or construction. Although it is not decisive of the matter, it is comforting to observe that the instruction of the Rome Traffic Limitation Zone was not preceded by an EIA and no example has been forthcoming of any cognate measure which has been" (at para. 65). 

 

223.          The Court accepts the City Council's contention that there is a clear analogy between that case and the situation that presents here, albeit the City Council stresses (and the Court notes) that what was involved in City of Westminster was, in fact, more significant in terms of displacement of traffic than that which occurred and was to occur here. In any event, we are satisfied that the Scheme in issue in City of Westminster, which was found by Kay J not to constitute urban development, has obvious parallels with the Scheme in issue here.

 

224.          In those circumstances, Councillor Flynn cannot take solace from the decision in the City of Westminster case: the rationale in the case is firmly against the proposition which Councillor Flynn advances, in our view. What was said by Kay J at para. 65 of his judgment was that there was potentially nothing by way of works involved in the congestion scheme in issue in that case and so it could not be held to constitute urban development. What the Judge in the present case appears to have extrapolated from that remark was that if, on the other hand, the congestion scheme had involved any level of works the EIA Directive would apply. The Judge then noted that the Scheme here involved the removal of a traffic island at the junction of Strand Road and Merrion Road, the removal of a number of mini roundabouts and the placing of barriers to segregate the cycleway from the roadway. On the basis, apparently, of his reading of the dictum of Kay J at para. 65 of City of Westminster, he concluded that the Scheme was "urban development."

 

225.          We are not satisfied, however, that the premise extrapolated by the Judge from the dictum of Kay J is a sound one. We agree with the City Council that Kay J was not suggesting that if the congestion scheme had more elements of construction or building it could be an urban development project: rather, what was being emphasised by Kay J was that the core nature of the congestion scheme was traffic management. Thus, the comparison conducted by the Judge between the works involved in the congestion scheme (the erection of signs and road markings) - as the City Council points out, the Judge omitted the reference by Kay J to the installation of cameras throughout London - and the works carried out by the City Council was predicated on an incorrect premise.

 

226.          Albeit that the Court accepts that in interpreting the scope of Article 10(b)(iv) of the EIA Directive, the "wide scope and broad purpose" of the EIA Directive must be borne in mind (see Case C-72/95, Kraaaijeveld and Others ECLI:EU:C:1996:404), the issue here turns on what is meant by "urban development".  Of assistance is the decision of the CJEU in Case C-332/04, Commission v Spain which dealt with the selection criteria of Annex II projects. The case concerned a recreational centre (a cinema complex) which was to be constructed in an urban area. The CJEU held that national legislation which excluded all urban development projects in urban areas from the urban development category amounted to an incorrect transposition of the Annex II Class 10(b) project category. That was because, given the size, nature and location of the recreational centre, it could not be ruled out from the outset that it was not likely to have a significant impact on the environment. (para. 46) Thus, in relation to project location, an urban development project should be seen as a project that is urban in nature regardless of its location. 

 

227.          It is, therefore, axiomatic that if a project is urban "in nature", it will fall within the EIA Directive. However, the fact that the locus of the Scheme is an urban space is not determinative of the applicability of the EIA Directive: rather, the issue has to be looked at in the context of the nature of the development being contemplated.

 

228.          Accepting as we do that the degree of construction or building involved in any particular project is relevant to the question of whether the project is one to which the EIA Directive applies, we are of the view that the nature of the works involved in the cycleway (as described by Mr. O'Brien on affidavit) do not "come within the nature of building or construction" in the sense referred to by Kay J More fundamentally, the suggestion that the works in issue here could amount to urban development works does not sit even remotely easily alongside the guidance provided by the EU Commission (to which reference has already been made) as to what constitutes urban development.

 

229.          In the course of considering what might constitute urban development, the Judge noted that the issue had been considered in "a number of English authorities". However, other than his consideration of the decision in City of Westminster, he did not otherwise cite or consider such authorities. One such authority is Condron v Merthyr Tydfil County Borough Council [2009] EWHC 1621. It concerned a disposal point facility occupying a site of 23.4 hectares and whether it constituted an urban development project for the purposes of Annex II of the EIA Directive.  Beatson J held that for the purposes of the relevant EIA Regulations and the European Commission's guidance, the project did not involve either an urban area or the "urbanising of an area that was previously rural".

 

230.          Lyon v Cambridge City Council [2012] EWHC 2684 is also relevant. It involved a challenge to the demolition of an existing sports pavilion and the relocation and erection of a new sports pavilion. While accepting the exhortation of the CJEU in Kraaijveld as to how the EIA Directive must be interpreted, Birtles J did not consider it arguable that either the demolition of the old sports pavilion or the construction of a new sports pavilion amounted to an urban development project, stating that he could not see "how in any true meaning of the construction of the phrase 'infrastructure projects' the construction of a small sports pavilion on a small sports pitch can be classed as an infrastructure project" (para. 46) having regard to the types of project listed as infrastructure projects in Schedule 2 of the relevant EIA Regulations, to wit, "the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas". Moreover, he considered that his view was supported by "the European Commission's Guidance entitled Interpretation of Definitions of Certain Project Categories of Annex I and II of the EIA Directive (2008)" (para. 40). He noted that the Commission Guidance stated that "the term 'infrastructure' is widely interpreted and may include roads, power and other utility service providing to facilitate the growth of industries", and that the Commission considered it advisable to interpret the scope of this projects category as including:

 

"(1) Projects with similar characteristics to car parks and shopping centres e.g. bus garages;

(2) Construction projects such as housing developments, hospitals, universities, sports stadiums, cinemas and theatres;

(3) Projects to which the terms 'urban' and 'infrastructure' can relate, such as the construction of sewerage and water supply networks".    

 

231.          Similarly, in R (Pickford) v Charnwood Borough Council [2013] EWHC 2279, the High Court of England and Wales (Robert Jay QC sitting as a deputy High Court Judge), albeit again applying the requisite purposive approach, determined that to apply the concept of urban development project to a motor sport development "was frankly miles away" from the concept of urban development as understood by the EU guidance on the topic (para. 11).

 

232.          Councillor Flynn suggests that the approach of the English courts may be wrong and submitted that the fact that certain decisions of the courts of England and Wales might seem unhelpful was not determinative as only the CJEU could offer definite guidance on the issue which, if necessary, could be achieved by a reference to the CJEU.

 

233.          The Court, however, is not persuaded that the jurisprudence of the courts of England and Wales cited to us, as referred to above, is in any way out of line with the concept of urban development to which the EIA Directive is directed, particularly when one looks at the type of project which the Commission Guidance considers to be urban development.

 

234.          The City Council also cited the decision of Barr J in Kerry Fish (Ireland) Unlimited Company v Kerry County Council [2022] IEHC 29 in arguing that the Scheme was not an urban development. There, the argument advanced was that the proposed reintroduction in May 2020 of measures for the town of Tralee (introduced in 2017 but which had been suspended for a few months after the outbreak of the Covid-19 pandemic) required to be screened for AA pursuant to the Habitats Regulation.

 

235.          At para. 49 of his judgment, Barr J referred to the nature of the works carried out in connection with the proposal, which involved the cutting of cylindrical holes into the road to enable bollards to be inserted and which were raised mechanically each day at the appointed hour thus preventing entry of vehicles into certain streets. Although he found that the Applicants were out of time in taking the challenge they did, Barr J went on to find that the lifting of the suspension and the reinstatement of the traffic calming measures did not constitute a "project" as defined in the Habitats Regulations. He held, inter alia that "traffic calming measures" under section 38 of the 1994 Act involving restricting the hours during which vehicular traffic could use two public roads, and the installation and use of bollards, did not amount to a change in the land use and did not constitute a "project" for AA purposes, and thus, no requirement to carry out AA screening arose in that case (the Respondent local authority having not carried out any such AA screening).

 

236.          At para. 61 he went on to say:

 

"In the real world, rather than in some legalistic bubble, it could not be argued that restricting the hours during which vehicular traffic could use two public roads could be likely to significantly affect any European site.  During the course of argument, counsel for the Applicant suggested that there was a requirement to consider the risk that may be posed to a European site by the traffic which would be diverted elsewhere due to the road closures.  There is no substance to that vague assertion.  Accordingly, the requirement to carry out screening under Art. 6(3) of the Habitats Directive, did not arise."

 

237.          In summary, by reason of the matters just discussed, the Court is satisfied there was no legal or factual basis upon which the Judge could conclude that the Scheme constituted "urban development".

 

 

The Scheme as a "road development project" - Submissions

 

238.          The first thing to be observed in relation to the finding that the Scheme constituted "road development" for EIA screening purposes is that the Judge did not make clear what aspect of road development was in issue in the Scheme, or which heading it came under in either the EIA Directive, the 1993 Act or the Planning and Development Regulations. This is something with which the City Council takes issue as is apparent from Ground 13 and 14 of the Notice of Appeal and its submissions to the Court. We accept that the High Court judgment is entirely unclear as to the basis on which the Judge concluded that the Scheme was road development for EIA purposes. Whilst Councillor Flynn agrees that it would have been preferable had the Judge given a more extensive reasoning for his finding that the Scheme constituted road development, he contends, nevertheless, that the absence of such reasoning did not change the fact that the Judge was entitled to conclude that what was in issue here was road development.

 

239.          The argument the City Council advances is that the Scheme does not fall within either of the two categories in the EIA Directive which pertain to roads, and that the Judge thus erred in finding (at para. 30) that the proposed Scheme constituted "road development" for the purposes of section 50 of the 1993 Act which, it is said, was not the type of development under consideration here.

 

240.          The City Council's contention is that there is no general category of road development to which the EIA assessment is required but rather only specific types of road development, as provided in Annex I and Annex II and as implemented by section 50 the 1993 Act and/or under the Planning and Development Regulations, none of which, it is argued, are in issue here. Its counsel submits that section 50(1)(a) provides an exhaustive definition of specific types of road development and the Scheme does not come within any of the designated types. The Scheme did not involve the construction of a motorway or a new road of four lanes, nor did it involve any realigned and/or widened section of such road or road development within the categories prescribed pursuant to section 50(1)(a) (iv).   

 

241.          Counsel for Councillor Flynn does not take issue with that argument to any great degree: rather, his principal argument is that that the City Council failed to have regard to what he describes as the broader parameters of road development provided for in section 50(1)(c) of the 1993 Act. This, he says, is a broader and more general category which is not limited to the four enumerated categories set out in section 50(1)(a). He points out that section 50(1)(c) applies to both to the construction of a proposed public road and the improvement of an existing road. Counsel places particular emphasis on the reference to "improvement". Whilst acknowledging that he did not have any authority for his proposition that the Scheme was the type of road improvement contemplated by section 50(1)(c), Counsel nevertheless argues that on the basis of what is said in section 50(1)(c), the Judge was correct to accept the Applicants' argument that the City Council had proposed a scheme to improve the road in the interest of enhancing mobility for cyclists and, accordingly, he was entitled to conclude that the Scheme fell within the scope of section 50 of the 1993 Act.

 

242.          The City Council, however, contends that insofar as it can be assumed that the Judge found that the project in question was a road development as provided for in section 50(1)(c) of the 1993 Act, the Scheme here did not involve either the construction of a road (and no one is suggesting that) or the improvement of a road, the City Council's position being that in order for the EIA Directive to be engaged, and for the Scheme to fall within its remit, "improvement" in section 50(1)(c) of the 1993 Act must be read to refer to construction-type road improvements as discussed in Case C-142/07 Ecologistas en Accion - CODA v. Ayuntamiento de Madrid ECLI:EU:C:2008:445. This is not, it says, what was involved in the Scheme in issue here in light of the trivial nature of the works carried out, all of which were merely ancillary elements to the Scheme: hence, the improvement of the Strand Road in the context of improvement involving "construction" was not remotely in contemplation as regards the Scheme.

 

243.          The City Council also says that, whilst pursuant to section 50(1)(d) of the 1993 Act, there is a mandatory requirement for a road authority to screen for EIA for "the construction of a road or improvement of an existing public road", that applies only where the road is "located on" a European site or nature reserve, land designated as a refuge for fauna or flora or land designated a natural heritage area under the Wildlife Acts. Whilst the position may be different for the purposes of the Habitats Directive, it is argued that for the purposes of section 50(1)(d), the Scheme is not located on any designated areas.

 

244.          Thus, the overarching submission of the City Council is that the Scheme does not constitute "the construction of a road or improvement of an existing public road" within the meaning of section 50(1)(a)-(d) of the 1993 Act. Equally, the City Council asserts that the Scheme does not fall within the second roads category in the EIA Directive, namely Class 10(e) of Annex II, which refers, inter alia, to "construction of roads". Again, the City Council's contention is that this provision must be read to mean the improvement of an existing road in the sense of "construction of roads", as referred to Case C-142/07 Ecologistas en Accion - CODA.

 

                  The Scheme as a "road development project" - Decision

 

245.          Notably, what was at issue in Case C-142/07 Ecologistas en Accion - CODA was the re-routing underground of parts of the "M-30" motorway which was as the CJEU described it "part of a complex civil engineering scheme which consists in improving and refurbishing virtually the whole of the Madrid urban ring road". (para. 17) As the CJEU put it at para. 36, the project in question concerned the "refurbishment and improvement of an existing road".

 

246.          The fundamental argument advanced by Ayuntamiento de Madrid (Madrid City Council) was that the project concerned an urban road which was not referred to in either Annex I or Annex II of the EIA Directive which, it was argued, mention only motorways, express roads and roads, all of which Spanish law had faithfully transposed. As urban roads were not mentioned in the domestic law transposing the EIA Directive, its case was that the Madrid ring road, being an urban road, did not have to be made subject to an environmental impact assessment.

 

247.          That argument was rejected by the CJEU, the Court repeating its oft expressed view that the scope of the EIA Directive "is very wide". It further stated that it did not follow from the fact that only "motorways" and "express roads" and the "construction of a new road of four or more lanes or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes" were defined in Annex I of the Directive or that Annex II simply referenced "construction of roads", "that roads cited in urban areas would be expressly excluded. On the contrary, unless roads in built-up areas are expressly excluded, the words "express roads" cover urban roads which have the characteristics set out in [Annex II]." (para. 31)  The CJEU thus found that "urban road projects must be regarded as falling within the scope of [the EIA Directive]".  (para. 34)

 

248.          The CJEU went on to state, at para. 36:

 

"...the fact that point 7(b) and (c) of Annex I to the amended directive refers to projects for the 'construction' of the types of road mentioned, whereas the case in the main proceedings concerns projects for refurbishment and improvement of an existing road, does not mean that the latter are excluded from the scope of the amended directive. A project for refurbishment of a road which would be equivalent, by its size and the manner in which it is carried out, to construction may be regarded as a construction project for the purposes of that annex (see, to that effect, Case C-227/01 Commission v Spain [2004] ECR I‑8253, paragraph 46, and Abraham and Others, paragraph 32). (Emphasis added)

 

249.          Thus, as we see, what the CJEU means by improvement or refurbishment are "construction" type works which are equivalent, in effect, to the construction of a new road. The question here is whether, having regard to the relevant domestic legislative provisions which implement the EIA Directive, the Scheme fits into the scenario to which the CJEU alludes at para. 36.

 

250.          Assisted by the guidance provided by the CJEU in Case C-142/07 Ecologistas en Accion - CODA, the Court holds that "improvement" in the context of section 50(1)(c) must be read to mean the physical enhancement of the of the road by way of construction or building works. In the absence of the type of refurbishment/improvement works to which the CJEU referred, we find force in the City Council's argument that the provision of the Scheme does not purport to improve an existing road (there being no suggestion that it constitutes the construction of a new road).

 

251.          In our view, the Scheme here does not involve physical works involving "construction" type "improvement" works which, as per Case C-142/07 Ecologistas en Accion - CODA, would bring the project within the scope of the EIA Directive. The minimal ancillary works involved in the Scheme are not remotely equivalent to the construction-type improvement works that would be required to bring the Scheme within the ambit of section 50(1)(a)(iv) or (c) of the 1993 Act, or indeed Class 10(e) of Annex II of the EIA Directive. As averred to in the affidavit of Mr. O'Brien sworn on 25 February 2021, the uncontested evidence is that the Scheme will involve "... minimal civil works and will be installed in such a way as to allow for localised alterations and to minimise any alterations to existing road surface or kerbs" (para. 13).

 

252.          For the reasons set out, the City Council's complaint that the Judge erred in finding that the Scheme constituted "road development" is made out.

 

Whether EIA Screening was required for the Scheme irrespective of whether it constituted a project class under either Annex I or Annex II?

 

253.          As is clear from the screening report, Mr. Fingleton reviewed the Scheme against Schedule 7 to the Planning and Development Regulations 2001 (which transposes the prescribed criteria given in Annex III of the EIA Directive for determining whether or not a sub-threshold development is required to be subject to EIA).  In the course of his submissions, Councillor Flynn appeared to suggest that the obligation to screen the Scheme as a sub-threshold development arose irrespective of whether it fell within a project class prescribed in Annex I or Annex II.

 

254.          The Court finds no merit in that argument. For the requisite screening exercise to be triggered (including as to sub-threshold development), the Scheme must constitute a project as prescribed by Annex I or Annex II of the EIA Directive. The Court has found that not to be the case for the reasons already set out. Indeed, we note from the screening report that the Schedule 7 exercise, upon which Mr. Fingleton embarked, was preceded by the statement that "As the project does not correspond to any project type in the Roads or Planning and Development legislation..., it is not considered to be 'sub-threshold development'". (Emphasis in original)

 

 

                                                        Summary

 

255.          For the reasons set out above, the Court is satisfied that that the Judge was incorrect in finding that the Scheme constituted urban development and/or road development for the purposes of the EIA Directive, these being the relevant projects in the context of the projects listed in Annex I and Annex II of the EIA Directive.

 

256.          As the Scheme has not been found to constitute a "project" for EIA purposes, it must follow that the Judge had no basis upon which to find that the Scheme required EIA screening. As said by O' Moore J in Kavanagh v An Bord Pleanįla [2020] IEHC 259:

 

"... it is of great importance that the Directive then goes on to require an EIA be carried out in respect of carefully defined types of projects. The obligations placed on Member States by the Directive are limited by reference to the classes of projects or developments set out in the Annexes, and do not extend beyond them". (para. 11)

 

257.          This is echoed by Murray J in Concerned Residents at para. 68:

 

"It is the projects listed in Annex I and Annex II that are, pursuant to Article 4 of the [EIA Directive] required to be subject to the assessment provided for in the Directive...An EIA arises only for EIA projects: the EIA Directive is quite clear in that respect...As O'Moore J. observed in the course of his judgment in Kavanagh (at para. 11) any other conclusion would subvert the evident intention underlying the careful definitions in the Directive".

 

258.          In circumstances where the Court is satisfied that there is nothing in Annex I or Annex II of the EIA Directive that could conceivably capture the Scheme in issue here, the City Council's ground of appeal that the Judge erred in finding that the cycleway constituted urban development and road development for the purposes of the EIA Directive is made out.

 

259.          As is apparent from the judgment, the Judge's finding that the EIA screening exercise was flawed was predicated on his conclusion that the cycleway was a project for the purposes of the EIA Directive. As this Court has found otherwise, it must follow that EIA screening was not required for the purposes of the EIA Directive as far as the Scheme in issue here is concerned. Hence, the Judge's findings that the EIA screening report was "fundamentally flawed" for the purposes of the EIA Directive and "inadequate in circumstances where an EIA is required" are, as a matter of law, nihil ad rem.

 

260.          The Court observes, in passing, that even if the Scheme had been found to come within the ambit of the EIA Directive, the Judge's rationale for impugning the screening exercise on the basis that the screening report was predicated on the Scheme being temporary would be unsustainable given the Court's conclusion that the Judge's finding that the Scheme was not temporary was in error.


 

(6) The Planning Permission Issue

 

261.          For the reasons set out in his judgment, the Judge concluded that each of the EIA Screening and the AA Screening conducted by the City Council was inadequate. If those conclusions were well-founded, it would appear to follow from them that the City Council was required to carry out a fresh screening exercise in each case. However, the Judge went materially further in his Judgment, finding that the City Council was required to carry out a full EIA and AA and, on that basis, stating that, if the proposed cycleway was to proceed, it would "have to go through the planning process" (Judgment, paras 36, 41 and 44).

 

262.          The Applicants quite correctly did not seek to stand over that conclusion. Even if the Judge was correct in holding that EIA and AA screening was required and that such screening had not been carried out adequately - and we have found that, as a matter of law, no EIA screening was required here and that the Judge was wrong to find that the AA screening carried out by the City Council was inadequate -  there simply was no material before the High Court on which he could have properly concluded that an EIA or AA was required. Consequently, the Judge was in error in stating that, if the Scheme was to proceed, it had to go through the planning process.


 

(7) The Scheme Decision Issues

 

263.          As already explained, the hearing before the High Court appears to have proceeded on a shared assumption that the decision which the Applicants sought to quash (described in the Applicants' Statement of Grounds as "the decision ... to proceed with the Strand Road Scheme") was that set out in the order of 25 February 2021 (Order ET/178/2021).

 

264.          In fact, as became clear in the course of the appeal, that order relates to the provision of traffic signs pursuant to section 95 of the 1961 Act. According to the City Council, while the provision of the various signs set out in that order was necessary to facilitate the Scheme, the substantive decision to proceed with the Scheme was taken pursuant to section 38 of the 1994 Act. That decision was made by Mr O'Brien on 8 February 2021. It was not made in writing, which, according to Mr O'Brien, was "normal practice" given the absence of any statutory requirement that the decision be made in writing: Affidavit of 24 June 2022, paras 13-17. The decision was, he explained, a conditional one: had the councillors passed a resolution under section 139 of the 2001 Act, then the Project would not have proceeded (ibid, paras. 19 and 20). In the event, Mr O'Brien had attended a meeting with the SEAC on 8 February 2021 and, nothing having been said that might have required the 1 March 2021 commencement date to be delayed, Mr O'Brien arranged for the issue of a press release notifying the public of the proposed commencement.

 

265.          Councillor Flynn considers it "very surprising" that the decision to proceed with the Scheme could be made by an individual without any written record and suggests that it is difficult to see how such a practice is consistent with good administration or transparent decision-making. In his supplemental submissions, he argues that any such decision is invalid. He says that the principle of legal certainty requires (a) that a decision that is amenable to certiorari should be in writing; (b) that it be known when a decision is made, as there must be a date certain for calculating the time limits for challenging it; (c) that a court should be able to say when preparatory steps have ended and a final decision has been made and (d) that the precise nature and extent of a decision (including the reasons for adopting it) should be known and knowable to a reviewing court.  

 

266.          In response, the City Council states that section 38 does not prescribe any particular form in which a decision pursuant to that section should be made. It accuses Councillor Flynn of advocating "an exercise in legal formalism" divorced from the context in which the decision was made: it was not taken in a vacuum but in the context of "an extensive process of public consultation and engagement." Given the volume of documentary material generated, the Council suggests that it is "anomalous" that a complaint is made of a deficiency in written records. The City Council disputes that there is any general principle that public law decisions must be made in writing and notes that, in the specific context of local government, only specific types of decision are required to be in writing (referring in this context to Schedule 15 to the 2001 Act). Even if the Court were to take the view that it was not good practice, that would not make it a requirement or render an otherwise lawful decision unlawful. As regards reasons for the decision, the City Council says that the decision was a discretionary one and was, of its nature, a policy-type decision rather than an adjudicative-type decision, for which reasons were not required. In any event, if reasons were necessary, they could readily be derived from the context.

                              Section 38 of the 1994 Act

 

267.          Before addressing these arguments further, it is appropriate to look further at section 38. As the section stood in 2020/2021, it provided as follows:

 

"Traffic calming measures

 

38. (1) A road authority may, in the interest of the safety and convenience of road users, provide such traffic calming measures as they consider desirable in respect of public roads in their charge.

(2) A road authority may remove any traffic calming measures provided by them under this section.

(3) Before providing or removing traffic calming measures under this section of such class or classes as may be prescribed, a road authority shall—

(a) consult with the Commissioner;

(b) publish a notice in one or more newspapers circulating in the functional area of the authority—

(i) indicating that it is proposed to provide or remove the measures, and

(ii) stating that representations in relation to the proposal may be made in writing to the road authority before a specified date (which shall be not less than one month after the publication of the notice);

(c) consider any observations made by the Commissioner or any representations made pursuant to paragraph (b) (ii).

(4) The making of a decision to provide or remove traffic calming measures of a class prescribed under subsection (3) and the consideration of observations or representations under paragraph (c) of that subsection shall be reserved functions.

(5) Traffic calming measures shall not be provided or removed in respect of a national road without the prior consent of the National Roads Authority.

(6) The Minister may issue general guidelines to road authorities relating to traffic calming measures under this section and may amend or cancel any such guidelines and, where any such guidelines are, for the time being, in force, road authorities shall have regard to such guidelines when performing functions under this section.

(7) A traffic calming measure provided under this section shall be deemed to be a structure forming part of the public road concerned and necessary for the safety of road users.

(8)  (a) A person who, without lawful authority, removes or damages or attempts to remove or damage a traffic calming measure provided under this section shall be guilty of an offence.

(b) An offence under this subsection may be prosecuted by the road authority in whose functional area the Acts constituting the offence were done.

(9) In this section—

'bus' means a mechanically propelled vehicle designed for travel by road having seating accommodation for more than 9 persons (including the driver);

'provide' includes erect or place, maintain and (in the case of an instrument for giving signals by mechanical means) operate;

"public bus service" means the use of a bus or buses travelling wholly or mainly on public roads for the carriage of passengers in such a manner that—

(a) the service is provided on a regular and scheduled basis,

(b) each journey is open to use by members of the public,

(c) carriage is provided for passengers between specified terminal points or along a specified route or otherwise in accordance with a published timetable, and

(d) a charge or charges are paid in respect of each passenger;

'traffic calming measures' means measures which—

(a) enhance the provision of public bus services, including measures which restrict or control access to all or part of a public road by mechanically propelled vehicles (whether generally or of a particular class) for the purpose of enhancing public bus services, or

(b) restrict or control the speed or movement of, or which prevent, restrict or control access to a public road or roads by, mechanically propelled vehicles (whether generally or of a particular class) and measures which facilitate the safe use of public roads by different classes of traffic (including pedestrians and cyclists), and includes for the purposes of the above the provision of traffic signs, road markings, bollards, posts, poles, chicanes, rumble areas, raised, lowered or modified road surfaces, ramps, speed cushions, speed tables or other similar works or devices, islands or central reservations, roundabouts, modified junctions, works to reduce or modify the width of the roadway and landscaping, planting or other similar works. "

 

268.          It will be seen from the definition of "traffic calming measures" in section 38(9) that these may include measures which "restrict or control" access to all or part of a public road by mechanically propelled vehicles (whether generally or of a particular class) for the purpose of enhancing public bus services and may also include measures which "restrict or control" the speed or movement of, or which "prevent restrict or control" access to a public road or roads by, mechanically propelled vehicles (whether generally or of a particular class) and measures which facilitate the safe use of public roads by different classes of traffic (including pedestrians and cyclists) and include for such purposes the provision of traffic signs, road markings etc.

 

269.          The power conferred on road authorities by section 38 is, on any view, potentially far-reaching. As a matter of general principle, motorists have a right to drive their vehicles (or, as it is put in the cases and textbooks, "the right to pass and repass") over public roads: indeed a "public road" is as a matter of definition a road "over which a public right of way exists": section 2(1) of the 1993 Act. [2] Road authorities are obliged to maintain public roads (that being the other mandatory characteristic of a "public road" for the purposes of the 1993 Act i.e. that it is "in charge") and such roads may not be abandoned, or the public right of way over them extinguished, without following strict statutory procedures (see, respectively, section 12 (abandonment) and section 73 (extinguishment) of the 1993 Act). We note in passing that it seems clear from the terms of these provisions that the ultimate decision to abandon or extinguish must take the form of a written order, even though that is not said expressly (the sections simply refer to an "order"). Roads may be closed to vehicles, or any class of vehicles, by order of the Minister for Transport but only after a public inquiry and only where such inquiry has proved that "the driving of vehicles or the class of vehicles on the road would endanger the traffic thereon or that the road is for any other reason unsuitable for use by vehicles or such class of vehicles": see section 94 of the 1961 Act (as amended). Again, it is evident from the terms of section 94 that it requires a written order to be made by the Minister. Indeed, even the temporary closure of roads is statutorily controlled and ordinarily requires prior public consultation: see section 75 of the 1993 Act and Article 12 of the Roads Regulations 1994 (S.I. no. 119 of 1994). Again, that section requires an order to be made by the road authority concerned and, in context, that clearly contemplates a written order, not least because it is a criminal offence to use a public road in breach of such an order.

 

270.          In the circumstances, it is perhaps unsurprising to find provision for public consultation in section 38(3). However, that sub-section is expressed to apply only to the provision or removal of traffic calming measures "of such class or classes as may be prescribed." "Prescribed" in this context means prescribed by regulations made by the Minister for Transport under the 1994 Act: section 2(1). The Court was told at the hearing of the appeal that no such regulations have in fact been made by the Minister, with the result that no statutory requirement for consultation arises, regardless of the nature, scope or impact of the traffic calming measures proposed. For the same reason, section 38(4) - which provides that the making of a decision to provide or remove traffic calming measures of a class prescribed under section 38(3) and the consideration of observations or representations under subsection (3)(c) shall be reserved functions i.e. functions required to be carried out by the elected members - is effectively inoperative.

 

271.          According to the City Council, section 38 permits road authorities to decide to permanently pedestrianise roads and/or to make roads one-way for road traffic (the Scheme in issue here was a temporary scheme but it is clear that section 38 is not limited to temporary traffic calming measures). Several significant schemes were referred to by Mr O'Brien in his Affidavit of 24 June 2022 - none of which, he said, had been the subject of a written section 38 decision - including a scheme involving permanent traffic calming measures comprising the introduction of Bus Priority Measures along the North and South Quays adopted in 2017. Reference was made in submissions to other significant schemes that have been adopted both in Dublin City and in the functional areas of other road authorities pursuant to section 38. Such measures may be adopted by road authorities without any statutory consultation (or, indeed, without any consultation of any kind) and the decision to adopt such measures may be taken by an authorised officer of the relevant authority, rather than by the elected members, all by reason of the absence of Regulations prescribing any class or classes of measure for the purposes of section 38(3) of the 1994 Act. Furthermore - so the City Council says - the decision to adopt such measures need not even be made or recorded in writing.

 

272.          As a matter of fact, of course, the City Council did undertake a consultation process here. [3] That was in line with the guidance set out in the Traffic Management Guidelines ("the Guidelines") which were provided to the Court by the Council. The Guidelines (which address a wide range of traffic management issues in addition to traffic calming) advise that where traffic calming measures are "significant," it will be "prudent" for the road authority to consult with "affected parties." The Guidelines do not identify what traffic calming measures might be regarded as "significant" or explain how that assessment is to be made. The Guidelines also advise that "appropriate consultation procedures should also be considered for the provision of bus lanes and cycle tracks", referring in that context to the fact that some road authorities apparently use the procedures set out in Part 8 of the Planning and Development Regulations (Part 8 is concerned with local authority own development) while others are said to use "informal local procedures." The Guidelines also states that where traffic calming measures include the provision of regulatory signs, the Garda Commissioner must be consulted.

 

273.          Section 38(6) of the 1994 Act empowers the Minister to issue "general guidelines" relating to traffic calming measures and provides that road authorities "shall have regard to" such guidelines when performing functions under section 38. It is not clear whether the Guidelines, insofar as they deal with traffic calming measures, are to be regarded as "guidelines" for the purposes of section 38(6) but, in any event, it appears from Mr O' Brien's Affidavit of 24 June 2022 that, in practice, the City Council has regard to the Guidelines when operating section 38. But even if the Guidelines enjoy some statutory status - and it is clear that, in general, a statutory obligation to "have regard to" guidelines does not import an obligation to comply with them - they fall some considerable way short of ensuring the procedural requirements which the Oireachtas clearly contemplated as being appropriate, at least in respect of some classes of traffic calming measures. The making of regulations by the Minister would have the benefit of identifying a specific class or classes of measures (as opposed to measures which in the subjective judgment of the relevant road authority appeared to be "significant"), in respect of which a formal statutory consultation process (instead of an ad hoc non-statutory process) would be triggered as a matter of statutory obligation (and not simply as a matter of "prudence") and which could only proceed by decision of the elected members. Had such regulations been in place, it may be that at least some of the significant controversy here might have been avoided.

 

274.          It is, of course, easy to understand why the Oireachtas did not provide that every traffic calming measure should be the subject of public consultation and/or decision by the elected members. Such measures, and the works associated with them, may be minor in scale and limited in their impact. But section 38 seems clearly to reflect a legislative judgment that the scope and impact of certain traffic calming schemes coming within the scope of that section may be such that they should be the subject of mandatory public consultation and should be permitted to proceed only if approved by the elected members. [4] That indeed was fairly accepted by the City Council.

 

275.          Without expressing any view on the merits of the Scheme here - that is not, of course, a matter for the Court - having regard to its scale and impact, as well as the degree of public debate and controversy that it provoked, the Scheme arguably fell squarely into that category and it is, to say the least, unfortunate that the procedures evidently contemplated by the Oireachtas did not apply by reason of the absence of Ministerial regulations.

 

276.          The Court cannot but agree with the statement made in Bland, op cit, at para. 12-52. Having noted that section 38 had been utilised to "repurpose the public realm by reducing the dominance of vehicles, such as by pedestrianising streets", and having referred to the absence of regulations, the author observes that:

 

"[p]ublic consultation and the decision-making function of the elected members are intended to be a democratic safeguard for public rights, so that the failure of the Minister to prescribe classes of traffic calming measures has resulted in a significant curtailment of those rights where major changes are carried out."

 

In endorsing those observations, the Court emphasises that it is not expressing any view on the merits of the particular Scheme here or the merits of such schemes generally. That is a matter of policy about which reasonable people may hold different views (illustrated by the conflicting views within the local community here). The Court's sole concern in this context is with the decision-making process and the fact that the procedures contemplated by the Oireachtas are not operative even for schemes - such as the Scheme here - that may reasonably be said to involve "major changes", even if only on a temporary basis.

 

277.          Had the Scheme here been prescribed for the purposes of section 38(3), any decision to proceed with it would have had to have been recorded in writing. In the first place, the City Council would have had to identify precisely what was proposed in the statutory newspaper notice. Then, at the conclusion of the consultation period, any decision to proceed with the Scheme would have involved the presentation of a written resolution to that effect to Councillors setting out what was proposed and a vote on that resolution (Local Government Act 2001, Schedule 10(12)) that would itself be recorded in the minutes (Schedule 10(14)).

278.          That was not the position here, of course. But it does not follow that Mr. O'Brien was entitled to make the decision to proceed with the Scheme in pectore (as counsel for Councillor Flynn put in argument). Where traffic calming measures are authorised under section 38, it appears to the Court to be a matter of elementary principle that there should be an accurate record of the precise measures so authorised. The measures may (and here did) include the provision of signs and the carrying out of works which the roads authority could not carry out in the absence of statutory authority. Measures provided under section 38 are "deemed to be a structure forming part of the public road concerned and necessary for the safety of road users", which means that they form part of the "road" (see the definition in section 2(1) of the 1993 Act) and which in turn may have significant implications for the liability of the Roads Authority. Removing or damaging a measure provided under section 38 is a criminal offence: section 38(8). These provisions serve to highlight the need for clarity and certainty in this context.

 

279.          But even more fundamental considerations are engaged here. As the City Council accepted, decisions made under section 38 may have a significant impact on the local community (and, indeed, on the wider community). Such decisions are subject to judicial review. Fundamental principles of legality, legal certainty and good administration require that such decisions should either be made in writing or, or at least, that there should be a contemporaneous written record of it. A decision constituted by the internal and unrecorded thought process of a council officer is less than a thing writ in water: it is invisible to the eye, immune to interrogation or scrutiny, incapable of production to a court and inaccessible under the Freedom of Information Act 2014. In a State governed by the rule of law, the suggestion that decisions affecting the rights and interests of citizens could properly be made in such a manner has only to be articulated in order to be rejected emphatically.

 

280.          The course of these proceedings vividly illustrates why a written decision or record is required. The absence of a written section 38 decision here has resulted in a fog of confusion and uncertainty as to what was the decision made and - as significantly - when it was made. It is apparent that the Judge understood that the "formal order" authorising the Scheme was made on 25 February 2021: see para. 37 of his judgment. The Judge is not to be criticised for that: nowhere in any of the (many) affidavits of Mr O' Brien which were before the High Court - which included detailed chronologies of the City Council's decision-making process - was it suggested that the decision to proceed with the Scheme pursuant to section 38 had been made by him on 8 February 2021. That was first said in the Affidavit sworn by Mr O' Brien in compliance with the directions given by this Court at the end of Day 2 of the appeal hearing (on 24 June 2022). It was only in the course of that hearing that it became clear to the Court that the order of 25 February 2021 (Order ET/178/2021) was not the Scheme Decision. That had not been evident from the City Council's written submissions on the appeal.

 

281.          The terms of that Order (Order ET/178/2021) warrant further discussion at this stage, given that the City Council suggested in argument that it provided an adequate record of what was involved in the Scheme. That order was made pursuant to section 95 of the 1961 Act (as amended). Section 95(3)(a) provides that a road authority may, in respect of public roads in their charge, provide such "information signs" and "warning signs" as they consider desirable and section 95(3)(b) provides that an authority may, after consultation with the Commissioner, provide in respect of public roads in their charge such "regulatory signs" as they consider desirable. Information signs, warning signs and regulatory signs are all forms of "traffic sign" within the meaning of the section: section 95(1). A "regulatory sign" is a sign, device, notice or road marking or any instrument for giving signals by mechanical means which "indicates the existence of a road regulation or implements such a regulation, or both, or indicates the existence of a provision in an enactment relating to road traffic". A "road regulation" is an order, regulation, by-law or rule under an enactment relating to traffic on roads. The Minister is empowered by section 95(2) to make regulations with respect to specified traffic signs and where a traffic sign is specified, signs of that kind provided by a road authority must be in accordance with the regulations.

 

282.          It will be recalled that section 38 (9) of the 1994 Act defines "traffic calming measures" to include (inter alia) the provision of "traffic signs" for the purpose of the measures set out at (a) or (b). On its face, therefore, section 38 authorised the provision of whatever traffic signs were necessary to implement the Scheme, including any regulatory signs, without any necessity to have recourse to section 95 of the 1961 Act and - in the absence of Ministerial regulation - without any requirement for consultation with the Commissioner. Be that as it may, it is common case that Order ET/178/2021 was made under section 95 and it appears from its face that it was indeed made after consultation with the Commissioner. In any event, section 95 is concerned only with the provision of "traffic signs." It does not authorise any other measures or the carrying out of other works. It is therefore curious to see that the first item listed in Order ET/178/ 2021 is Cycle Track, described as "[i]nstall a two-way 24 hour continuous cycle track on the eastern side of Beach Road from the junction of Sean Moore Road in a southerly direction to the junction of Newgrove Avenue, allowing for access to Leahy's Terrace, Beach Avenue, Beach Drive, Sandymount Court, Marine Drive, Seafort Avenue and Newgrove Avenue." The installation of such a "Cycle Track" was clearly outside the scope of section 95. Furthermore, it is clear from the documentary material describing the Scheme that it involved works - including the installation of bollards and orcas (lane separators) and the installation and/or reconfiguration of roundabouts - that (it appears quite correctly) were not referred to or included in Order ET/178/2021. Therefore, it is not the case that Order ET/178/2021 sets out all of the elements of the Scheme: it clearly does not.

 

283.          No doubt, as the order itself recites (and as counsel for the City Council emphasised in argument) the provision of the various "traffic signs" listed in it would "facilitate" the Scheme. But that only serves to highlight that, if indeed recourse to section 95 was necessary at all - which is far from clear - the more significant decision was that to proceed with the Scheme under section 38. That was the decision authorising the Scheme that the traffic signs were intended to facilitate. Why it was considered appropriate to make the section 95 decision in the formal written terms it was - in the absence of any express statutory requirement for a written decision in section 95 - whereas the section 38 decision was not made in writing, in accordance with what is said to be "normal practice" - a practice justified, it is said, by the absence from section 38 of a statutory requirement for a written decision - is very difficult to understand.  

 

284.          That is, perhaps, particularly so when the Scheme Decision was made following a public consultation process. It appears entirely anomalous that a decision which was considered sufficiently significant to warrant public consultation (albeit not the statutory consultation process contemplated by the section) should be made other than in writing or at least recorded in writing, with the result that no record of the decision made is available to the public, whether by way of access request under the Freedom of Information Act or otherwise.

 

285.          As counsel for the City Council accepted in argument, the fact that section 38 does not, in terms, require a decision to adopt a traffic calming measure or scheme to be made or recorded in writing and that such decisions are not required by section 151 of the 2001 Act to be made by way of Manager's Order, is not determinative. The Oireachtas frequently prescribes that reasons be given for specific administrative decisions but it does not follow that reasons need not be given for decisions that are not governed by such an express statutory duty: see the decision of the Supreme Court in Mallak v Minister for Justice [2012] IESC 59, [2012] 3 IR 297. If fundamental principles of legality generally require that reasons be given for decisions affecting a person so that such person may understand the basis on which the decision was taken and consider whether to exercise an entitlement to challenge the decision by way of appeal or judicial review, then a fortiori legal certainty generally requires that such decisions be made or recorded in writing so that the precise nature and scope of the decision and the date on which it was made should be clear. If, as Clarke J (speaking for the Supreme Court) observed in EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] IESC 34, [2014] 1 ILRM 225 (another reasons case), legal certainty requires that it must be possible to accurately determine what the reasons for a disputed decision are (at para. 9), then all the more so does the principle of legal certainty require that the disputed decision itself be accurately recorded.

 

286.          In the Court's view, it is a fundamental principle of administrative law that decisions having legal effects and which are made under statute by public bodies should generally be made or recorded in writing. The decision in issue here is clearly in that category, for the reasons already indicated. While a formal Manager's Order was not necessary (though there is no reason why such an order should not have been made, having regard to the provisions of section 151(2)(d)) of the 2001 Act), the precise parameters of the scheme authorised by Mr O' Brien ought to have been the subject of a written decision or at least been contemporaneously recorded in writing.

 

287.          As the City Council contends, there may be circumstances - such as urgency - which may explain and/or justify a failure to comply with this requirement. The decision of the High Court (Baker J) in Hennessy Eco Limited v Cork City Council [2016] IEHC 633, which was relied on by the City Council in this context, may be an example. But no such circumstances arose here. Nor is it an answer for the City Council to assert that its "normal practice" has been not to make written decisions in respect of decisions to adopt traffic calming measures under section 38. That practice is not, in the Court's view, well-founded and disregards the significant interests potentially engaged by section 38 and the significant impact that section 38 schemes may have on persons and local communities. Nor, in the Court's view, is it appropriate or accurate to suggest that the issue is "a mere question of form" or an example of "pointless formalism." It is a basic principle of any administration bound by the rule of law that public law decisions affecting members of the public should be accessible and reviewable. Requiring such decisions to be in writing, or recorded in writing, is a fundamental first step in that respect. No doubt, as the City Council observes, oral decisions may be subject to judicial review but oral decision-making brings with it - as the facts here vividly illustrate - a wholly undesirable (and avoidable) lack of clarity.  In any event, the availability of judicial review is only one consideration in this context. Persons affected by public law decisions have a fundamental entitlement to have access to the decision.

288.          It remains to be considered whether, as Councillor Flynn contends, the section 38 decision should be set aside for failure to give reasons.

 

289.          Reference has already been made to the decision of the Supreme Court in Mallak. There, for the reasons set out by Fennelly J (Denham CJ, Murray, O' Donnell and McKechnie JJ agreeing), that Court held that the Applicant was entitled to be told the reasons for the Minister for Justice's decision to refuse his application for naturalisation under the Irish Nationality and Citizenship Act 1956. That was so even though the 1956 Act did not impose any requirement on the Minister to give reasons, the Act conferred a broad discretion on Minister whether to grant naturalisation or not and naturalisation was a matter of privilege rather than right.

 

290.          Mallak is authority for a general principle that "persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them" (per Fennelly J at para. 69). But that general entitlement may be outweighed by countervailing considerations, such as the security of the State: AP v Minister for Justice and Equality [2019] IESC 47, [2019] 3 IR 317. No such considerations arise here but the City Council nonetheless says that this is a case where no obligation to give reasons was engaged because the Scheme Decision was more akin to a policy decision than to an adjudicative-type decision. It cites Christian v Dublin City Council [2012] IEHC 163, [2012] 2 IR 506 and Killegland v Meath County Council [2022] IEHC 393 as authorities for making such a distinction in this context. Secondly, citing Connelly v An Bord Pleanįla [2018] IESC 31, [2021] 2 IR 752, the City Council says that the reasons for the Scheme Decision were in any event clearly communicated in the course of the consultation process.

 

291.          The Court is not persuaded that the decisions to adopt traffic calming measures under section 38 of the 1994 Act are to be regarded as akin to decisions regarding the zoning of land. Decisions made under section 38 may, without more, have an immediate and concrete impact on residents and road users in a specific part of the functional area of the road authority concerned. That such decisions might be made by elected councillors rather than by officials of the road authority - as would be the case in relation to traffic calming measures of a class prescribed by the Minister - does not present any insuperable barrier to requiring reasons to be given, as indeed is clear from Christian and Killegland.  

 

292.          However, the Court does not consider that it needs to or should go further than holding that the Scheme Decision here should have been made - or recorded - in writing and that the City Council was, as a matter of principle, required to give reasons for that decision. At least in the absence of an express statutory requirement to give reasons, in principle reasons may be found in materials outside of the decision in question: EMI Records. Here, the City Council went to significant lengths in the course of the consultation process to explain why it was proposing the Scheme and what it considered to be the anticipated benefits of the Scheme. It also explained changes to the proposed Scheme adopted in the course of the consultation process. On its face, this material appears to have been adequate to satisfy the City Council's duty to give reasons. Given that the Scheme Decision has lapsed, and that any further scheme will have to be the subject of a further decision, no useful purpose would be served in considering this issue further.


 

(8) The Mootness Issue

 

   Introduction

 

293.          We now turn to consider another of the new issues which must be determined in the appeal arising from the belated disclosure by the City Council of highly relevant matters, namely, the existence of a previously undisclosed decision made by the City Council pursuant to section 38 of the 1994 Act on the 8 February 2021 and the fact that (unbeknownst to everyone except the Council itself) Order ET/178/2021 was rescinded on 2 March 2021, long before the trial in the High Court. The issue is whether the appeal is moot.

 

                                                Submissions of the Parties

 

294.          Without prejudice to his preliminary objection that it is not open to the City Council to maintain its appeal in the absence of a certificate from the High Court under section 50A(7) of the PDA, Councillor Flynn contends that the proceedings were arguably moot at the time of the hearing at the High Court but that, in any event, the appeal itself is certainly moot. In his supplemental written submissions, Councillor Flynn relied on the following dictum of Murray CJ in Irwin v. Deasy [2010] IESC 35 (as endorsed by O'Donnell J in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 IR 751 and relied on by Meenan J in the High Court in Ganley v. Minister for Health [2021] IEHC 822) where he said:

 

"The mootness doctrine is applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable."

 

295.          Councillor Flynn contends that in circumstances where Order ET/178/2021, which was relied on by the City Council as being the formal order or decision that the Scheme would proceed with effect from 1 March 2021 and accepted as such by the Judge, was rescinded and no longer exists and where the decision taken by the City Council pursuant to section 38 of the 1994 Act on 8 February 2021 is long since spent, there is no valid decision or order in place which would allow the City Council to proceed with the Scheme and to implement any of the measures necessary for the trial which were set out in Order ET/178/2021. Councillor Flynn submits that if the Court were to reverse the judgment of the High Court and to dismiss his claims in the proceedings, there would be no valid basis on which the City Council could proceed with and undertake the works necessary for the Scheme and that another decision under section 38 of the 1994 Act and another order, similar to Order ET/178/2021, would be required. In those circumstances, Councillor Flynn submits that there is no "live controversy" between the parties and the legal issues raised in the appeal are now purely abstract issues. He contends that, in seeking to have the Court decide the appeal, the City Council is looking for an "advisory opinion" from the Court on such issues and that, in those circumstances, the appeal is moot.

 

296.          At the hearing of the appeal, counsel for Councillor Flynn, sought to distinguish this case from the decisions of the Supreme Court in Odum v. Minister for Justice and Equality [2023] IESC 3 and Lofinmakin v. Minister for Justice, Equality And Law Reform [2013] 4 IR 274 on the grounds that this case does not give rise to any transcendent legal issues which might require to be decided but, rather, involves issues which are all very fact specific. While he accepted that the Court did have a discretion to deal with an appeal which is moot, he contended that it ought not to exercise its discretion to do so in this case.

 

297.          When pressed by members of the Court as to how the appeal could be moot in light of (inter alia) findings by the Judge that a full EIA and AA were required for the Scheme and that if it was to proceed it would have to "go through the planning process" (para. 44 of the Judge's judgment), a finding over which Councillor Flynn was not standing on the appeal and in respect of which he said the Judge "went too far", counsel nonetheless submitted that this did not give rise to a "live controversy between the parties", as Councillor Flynn had never maintained that the Scheme required planning permission.  He suggested that the Court could "clarify that if it wishes", presumably some form of judgment or order (although that was not at all clear).

 

298.          The City Council maintained that the appeal is not moot. It relied on the principles summarised by McKechnie J in the Supreme Court in Lofinmakin and also on dicta in the more recent decision of the Supreme Court in Odum. The City Council maintained that there is a "live controversy between the parties" to the appeal.  It relied on a number of factors in support of that submission.

299.          First, it is the City Council's intention to proceed with a cycle trial along Strand Road so the issues raised in the appeal are not abstract or academic. Once the stay was granted by the High Court, it was not possible to proceed with the Scheme with effect from 1 March 2021. It was, therefore, always going to be necessary to set a new start date for the trial and a new order for traffic signs would be necessary. While Order ET/187/2021 rescinded Order ET/178/2021 and Order ET/183/2021, meaning that new replacement orders would be required, it did not rescind the order by which the City Council formally adopted the EIA and AA screening reports (Order ET/39/2021 of 14 January 2021), or any of the other steps taken by the City Council for the purposes of the Scheme. Although, in its supplemental written submissions, it was maintained that the City Council did not rescind its decision to proceed with the Scheme but only its decision to proceed with the "discrete last stage/facilitative aspect of the process concerning provision of road signage and markings" (para. 15), counsel for the City Council accepted at the resumed hearing of the appeal that the decision made by the City Council on 8 February 2021 pursuant to section 38 of the 1994 Act to proceed with the trial was "spent" because it too specified a start date of 1 March 2021, which had long since passed. He accepted that there would, therefore, also have to be a new section 38 decision.  

 

300.          Second, the City Council maintains that the appeal cannot be moot in circumstances where the Judge's ultimate conclusions that an EIA and an AA were both required for the proposed Scheme and that if the cycle trial was to proceed in the future it would have to "go through the planning process" would remain undisturbed in circumstances where that conclusion was legally incorrect (and was not being supported by Councillor Flynn on the appeal). If those conclusions were let stand, it would mean that the City Council would have to apply for permission to An Bord Pleanįla to proceed with the cycle trial in the future. The City Council submits that its rights were, and continue to be, affected by the findings of the Judge and that, in those circumstances, in seeking to have those findings reversed, the City Council is not seeking an "advisory opinion" from the Court. Similarly, the Judge found that the proposed Scheme was a project for which EIA screening was required as being both "urban development" and "road development". The City Council maintains that those findings are also legally incorrect on a number of different grounds and, if left undisturbed, would have widespread implications, not just for the Sandymount cycle trial but for "traffic calming measures" in general.  

 

301.          Third, the City Council also relies on the fact that the Judge made an order for costs against it and contends that that is an additional factor demonstrating that the appeal is not moot.

 

302.          In support of these arguments, the City Council relies on various dicta of O'Donnell CJ in Odum as demonstrating that the appeal is not moot.

 

303.          In the alternative, if the Court considers that the appeal is moot, the City Council maintains that the Court should nonetheless exercise its discretion to determine the issues in the appeal. It relies on the systemic importance and serious operational implications of the Judge's findings that an EIA and an AA were both required for the Scheme and that the Council would have to "go through the planning process" if it wished to proceed with such a trial in the future.  In that respect, the City Council relies on the averments contained in the most recent affidavit sworn by Mr. O'Brien where he referred to the "significant operational implications for works or proposed works to any public road, the delivery of future cycleway development, and the carrying out by the Council of traffic calming measures under s. 38 of the Road Traffic Act 1994...", were the findings of the Judge to remain undisturbed. The City Council submits that, as a consequence, the issues raised in the appeal transcend the particular facts of the case and would justify the Court exercising its discretion to determine the appeal, even if contrary to its primary contention, the Court were it to take the view that the issues are moot. 

 

 Decision on Mootness Issue

 

304.          We are satisfied that there is no basis for contending that the appeal is moot. It clearly is not.  The principles to be applied in deciding whether a trial or an appeal is moot are not really in dispute between the parties and are, in any event, well established. Those principles were helpfully summarised by McKechnie J in the Supreme Court in Lofinmakin and have been consistently applied since then, with perhaps the added gloss, particularly (but not exclusively) in the case of appeals to the Supreme Court in light of the new Constitutional structure created by the Thirty Third Amendment of the Constitution, applied by O'Donnell CJ in the Supreme Court in Odum.

 

305.          In Lofinmakin, McKechnie J explained the essential rationale for the doctrine of mootness. He stated (at paras. 59 - 62 of his judgment):

 

"59.     The rule by which a court will decline to hear and determine an issue on the grounds of mootness is firmly based on the deep rooted policy of not giving advisory opinions, or opinions which are purely abstract or hypothetical. This policy stems from and is directly related to the system of law within which our courts discharge their essential function of administering justice. Apart from any special jurisdiction conferred by statute, by the Constitution, or resulting from our membership of the European Union, the system in question is fully adversarial. Consequently, there must exist some issue(s), embedded within a factual or evidential framework, the determination of which is/are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance. It has therefore always been recognised that without such a concrete foundation, the courts typically will decline to intervene.

 

60.       In addition to this basic justification for the rule, there are a number of other reasons which support its existence, including what has been described as 'judicial economy', which can also be termed 'judicial efficiency' or 'judicial effectiveness'. In a time of scarce and declining resources on the one hand and of an ever-increasing stream of litigation, much of which is lengthy and complex on the other, the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions. Consequently, where necessity of resolution is not required, the courts quite correctly will be most reluctant to get involved.

 

61.       There is another related but broader consideration which must also be kept in mind: it is that the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting. In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution....

 

62.       In essence therefore, this particular rule and its underlying utility are designed, like a number of other related judicial practices, to serve justice and to drive the administration of it." (at pp. 290 - 291)

 

306.          Having referred to a number of authorities from this jurisdiction (including O'Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62, [2007] 1 IR 328 and Irwin v. Deasy and from elsewhere (including the important decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General) [1989] 1 SCR 342), McKechnie J summarised the approach which a court should adopt in determining whether a case or an issue within a case (or in an appeal) could be described as moot and whether, even if that be the case, the court should nonetheless proceed to hear and determine the case, the issue or the appeal. Those principles are set out at para. 82 of his judgment (pp. 298 - 300). It is unnecessary to reproduce them here. They were recently set out and applied by this Court (in a judgment delivered by Burns J) in Harte v. the Superior Court Rules Committee  [2025] IECA 23, at para. 22 (pp. 7 - 10).

 

307.          McKechnie J described the approach which a court should take as involving a "two step analysis". The first step is to determine whether the case or issue is a moot. There is also a second step which is necessary, since the rule that a court should not ordinarily determine a moot is not an absolute rule. At the second step, the court has a discretion to decide whether or not to decide the issue.

 

308.          At the first step or stage of the process, the court must consider whether a decision on the particular issue which is said to be moot could have any "practical impact or effect on the resolution of some live controversy between the parties... [which] ...arises out of or is part of some tangible and concrete dispute then existing" (para. 82(i)) and whether the issue has retained its character as a lis or whether, on the contrary, the "essential foundation" of the case has disappeared (para. 82(ii)). Other issues to consider at the first step include whether the parties retain a legal interest in the outcome of the issues as well as the issue of judicial resources and the general requirement that courts do not offer "purely advisory opinions or opinions based on hypothetical or abstract questions" (para. 82(iii) and (iv)).

 

309.          Even if the court decides that a case or an issue in a case or an appeal is moot, there is a second step which involves the court considering whether to exercise its discretion as to whether nonetheless to decide the case, appeal or issue. McKechnie J noted that the court should be cautious in the exercise of that discretion and mindful of the rationale for the mootness rule and of the "overriding requirements of justice" (para. 82(vi)).  He then set out a number of matters which might govern the exercise of the court's discretion as to whether to proceed to decide a case that is moot, making clear that those matters were "indicative only", not intended to be "exhaustive" and "may well have to be adjusted to reflect the particular circumstances of any given situation" (para. 83). Among the indicative matters identified by McKechnie J at para. 82(vii) were the continued existence of an adversarial relationship between the parties, the nature of the dispute, the importance of the point in issue and the frequency of its occurrence, the character or status of the parties to the case and whether the case is a public or private one and, if public, whether a decision in the case or on the issue might impact on the functions or responsibilities of the public body, as well as the potential benefit and utility of a decision on the issue in public and private law.

310.          In determining the mootness issue on this appeal, therefore, the Court must apply the "two step analysis" identified by McKechnie J in Lofinmakin. It must consider, first, whether the appeal and the issues raised in it are moot and, second, whether nonetheless the Court should exercise its discretion to determine those issues.

 

311.          McKechnie J also addressed the relevance of an extant order for costs on the issue of mootness (at paras. 102 to 112 of his judgment at pages 305-308). He rejected the submission that the existence of a disputed costs order is sufficient to prevent a case which would otherwise be moot from being treated as such. However, he did accept that the existence of a costs order is a factor to be considered in the exercise by the court of its discretion to proceed to hear and determine a moot and acknowledged that that factor could "weigh heavily" in a particular case. 

 

312.          In Odum, the Supreme Court revisited the doctrine of mootness in an appeal which came before that court after the amendment to Article 35.4 of the Constitution following the Thirty Third Amendment of the Constitution. The Supreme Court indicated that in light of the fundamental change to the constitutional structure by reason of that amendment, different considerations would apply to determining the question of mootness at first instance and potentially in many appeals before the Court of Appeal to those applicable to appeals to the Supreme Court. However, it should be noted that this Court has held that many of the considerations identified by the Supreme Court in Odum are relevant and can apply to appeals before this Court: Blythe v Commissioner of An Garda Sķochįna [2023] IECA 255 (per Collins J at paras. 40-42) and also Kozinceva v The Minister for Social Protection [2020] IECA 7 (per Haughton J at para. 63). The latter judgment was cited by O'Donnell CJ in Odum and by Collins J in Blythe. Therefore, the discussion of the issue in Odum is relevant and useful in a number of respects to the mootness issue in this case, apart from the general endorsement by the Supreme Court of the approach taken by McKechnie J in Lofinmakin (albeit that a different outcome was reached in Odum). 

 

313.          In Odum, O'Donnell CJ drew attention to an important difference between the approach taken by the United States Supreme Court to the issue of mootness and that taken by the Supreme Court in this jurisdiction. In the US, where a case before the US Supreme Court has become moot, that court can vacate the judgment of the court below and send the case back to that court with a direction to dismiss the case. Such an order "strips the decision below of its binding effect". As O'Donnell CJ pointed out, that approach is not open in this jurisdiction (or in other common law jurisdictions). He said:

 

"If an appeal in this jurisdiction is dismissed as moot, the consequences are the opposite: the decision of the court appealed against will remain binding between the parties, and the judgment will retain its status as a precedent" (para. 30, p. 14).

 

314.          As the Chief Justice explained earlier in his judgment, if the effect of a finding that an appeal is moot requires the appellate court to refuse to proceed to hear and determine the appeal, "a legal precedent will stand without ever having enjoyed the benefits of review on appeal" (para. 12, pp. 5–6). That is a very relevant factor in the present appeal.

315.          Also relevant is the Supreme Court's treatment of the relevance of the existence of a costs order to the question of mootness. The Chief Justice accepted the analysis provided by McKechnie J in Lofinmakin that costs should be considered to be "ancillary or adjectival to the substance of the proceedings". However, he also accepted McKechnie J's characterisation of the question of an extant order for costs as being "not only relevant to the exercise of the court's discretion [to proceed to hear and determine a moot], but also a substantial and important factor" (para. 41, p. 20). In considering how a court should exercise its discretion in the case of an appeal which is said to be moot where an order for costs was made against a party at the conclusion of the case, which that party contends ought never to have been made, the Chief Justice stated:

 

"An order for costs is a judgment enforceable as such, and in many cases can involve very considerable amounts... The fact that the rule in this jurisdiction that costs are generally awarded in favour of the party that has been successful, cuts both ways. It follows that in most - if not all - cases the justification for the significant money judgment that an order for costs involves, is to be found in the substantive decision. The purpose of any appeal is to contend that that decision is wrong. In many cases, it would not be reasonable or just to require a party to satisfy a judgment for an order for costs, while at the same time preventing that party from establishing that those costs had been ordered on a legally incorrect basis. Normally I would consider that the existence of an order for costs which would stand if an appeal was treated as moot, is itself a powerful factor leaning towards hearing such an appeal..." (para. 42, pp. 20 - 21) (emphasis added). 

 

316.          On the facts of that case, the costs factor was found not to have weight since the Minister had agreed that the order for costs in her favour would be waived in the event that the appeal was considered moot. However, in this case, the Judge did make an order for costs against the City Council based on his decision of the legal and factual issues against the City Council. The existence of that order for costs is, therefore, a very relevant factor in this case.

 

317.          Notwithstanding that the City Council's decision of 8 February 2021 pursuant to section 38 of the 1994 Act to proceed with the Scheme for a period of six months with effect from 1 March 2021 was acknowledged at the hearing of the appeal on behalf of the City Council as being spent, and notwithstanding that Order ET/178/2021 was rescinded long before the hearing of the case in the High Court, we do not consider that the appeal is moot. The City Council has confirmed on affidavit that it is its intention to proceed with a cycle trial along Strand Road in Sandymount. There remains between the parties, therefore, a live controversy on the critical legal issues raised in the appeal. Those issues cannot, in our view, be regarded in any sense as "purely abstract" or "hypothetical" and, in deciding the issues in the appeal, the Court is not providing an "advisory opinion". Rather, the Court is deciding a real live controversy between the parties which is "embedded within a factual or evidential framework" (to adopt the words of McKechnie J in Lofinmakin). The Court is being asked to decide very significant legal issues which will require to be determined for the purpose of a future similar trial which the City Council intends to proceed with in Sandymount. Those issues do require to be determined, and their determination will have a significant practical impact and effect on the resolution of the legal issues between the parties concerning the introduction of the Scheme.

 

318.          The position is very different, therefore, to Ganley and to the other cases mentioned earlier which were held to be moot. In addition, Ganley was a case in which the issue of mootness arose at first instance and, therefore, did not involve findings of law giving rise to legal precedent which would stand unless determined (and corrected) on appeal.

319.          The Judge made a number of very significant findings on legal issues which were critical to the introduction of the Scheme. They include the finding that a full EIA and a full AA were required for the Scheme and that the City Council is required to apply to and obtain permission from An Bord Pleanįla in order to proceed with the cycle trial. Those are findings which Councillor Flynn is not standing over on the appeal and in respect of which his counsel said the Judge "went too far". They are also findings which we have concluded are incorrect. Were this Court not to proceed to hear and determine the appeal, those incorrect findings would remain binding as a matter of law between the parties and the judgment of the High Court on those issues would retain its status as a legal precedent. The City Council would be bound by those findings and the precedent created by the judgment of the High Court when seeking to proceed with the cycle trial in the future, as is its stated intention. There is, therefore, nothing abstract or hypothetical about any of this. Nor would the Court be giving a mere "advisory opinion" in deciding these issues in the appeal. Rather, it would be resolving a very live legal controversy between the parties and correcting critical legal errors in the judgment of the court below. The suggestion by counsel for Councillor Flynn that the Court, while finding that the appeal was moot, could include some form of clarification that Councillor Flynn did not make the case that an EIA and an AA were required or that the City Council was required to go through the planning process in order to obtain permission for the Scheme, in our view, falls far short of what is required. The High Court judgment and its conclusions on those issues would remain as a legal precedent and the uncertainty created by the existence of the judgment, with or without the clarification suggested on behalf of Councillor Flynn, would be most unhelpful and undesirable.

 

320.          A similar problem exists with the findings made by the Judge that the Scheme constitutes an "urban development" and "road development" for the purpose of the EIA Directive and its implementing provisions in Ireland. We have concluded that the Judge was wrong in deciding that the Scheme constituted either type of project. The Judge's finding to the contrary would remain binding as between the parties and would continue to subsist as a legal precedent were this Court not to hear and determine the appeal and correct this error. The effect of this would, much like the effect of the finding that a full EIA and AA were required for the Scheme, affect not just the Scheme in issue here but a whole range of other developments or projects which the City Council might wish to undertake. There can be no question, therefore, of these issues being moot.

 

321.          We are also inclined to the view that the existence of an order for costs against the City Council, on the particular facts of this case, is a further and complementary reason as to why the appeal is not moot. The High Court awarded costs against the City Council on the basis of the findings it made against the City Council on these issues. It may fairly be said that this is one of the cases envisaged by McKechnie J in Lofinmakin where it is possible to say that the order for costs was granted by reference to the specific findings made by the Judge against the City Council. The order for costs is, therefore, another reason why the appeal and the issues in the appeal in this case are not moot. However, it is unnecessary to reach a definitive conclusion on the relevance of the extant costs order in circumstances where there are a number of other clear and obvious reasons why the appeal is not moot and where, in any event, the existence of the costs order would provide a more than sufficient basis for the Court to exercise its discretion to hear the appeal, even if it were of the view that the appeal was moot (which it is not).

 

322.          We have concluded, therefore, that by reference to the first step of the two-step analysis referred to by McKechnie J in Lofinmakin, the appeal is clearly not moot and that it is appropriate that the Court should hear and determine all of the issues in the appeal.

 

323.          If it were necessary to proceed to the second step of the analysis, we are satisfied that it would be appropriate for the Court to exercise its discretion to proceed to hear and determine the appeal for at least the following reasons.

 

324.          First, there is the outstanding order for costs against the City Council. We would adopt the views of O'Donnell CJ in Odum and consider that the existence of the order for costs which would stand if the appeal were treated as moot is itself a "powerful factor" leaning towards hearing the appeal and that it would not be reasonable or just to require the City Council to satisfy a judgment for an order for costs in circumstances where it wished to contend that the relevant findings in the High Court ought not to have been made.

 

325.          Second, the findings of the High Court have very significant implications for the way in which the City Council is required to discharge its statutory functions and responsibilities and have significant operational implications not only for the Scheme and any cycle trial which the City Council intends to implement in Sandymount but also for other future developments by the City Council (and by other local authorities) including roads, cycleways and traffic calming measures.

 

326.          Third, the determination of the issues in the appeal would provide legal certainty where uncertainty would otherwise arise if the judgment of the High Court were left undisturbed.

 

327.          Finally, it would be a proper and appropriate use of judicial resources to hear and determine the appeal, in circumstances where the issue of mootness only arose during the course of the hearing of the appeal following the belated disclosure by the City Council of the fact that Order ET/178/2021 had been rescinded and on acknowledgment that the decision of 8 February 2021 was spent. While the proper use of judicial resources requires the determination of the issues on the appeal, the circumstances in which those matters came to light should have appropriate costs consequences for the City Council.

 

328.          In conclusion, therefore, applying the two-step analysis in Lofinmakin, we are satisfied that the appeal is not moot. Alternatively, if it were moot, we would nonetheless exercise our discretion to proceed to hear and determine the appeal in the particular circumstances of this case and that is what we have done.

 

 

 

 

 

 

     (9) The Abuse Of Process/Candour Issue

 

 Introduction

 

329.          The next issue to consider is another new issue, namely, whether there should be any consequences for the City Council arising from the belated disclosure of the fact that (a) the decision pursuant to section 38 of the 1994 Act to proceed with the Scheme with the effect from 1 March 2021 was made by Mr. O'Brien on behalf of the City Council on 8 February 2021, and (b) the order embodying the decision which the Judge understood to be the decision under challenge in the proceedings i.e. Order ET/178/2021 which was made on 25 February 2021, was rescinded by another decision made by the City Council on 2 March 2021 (by Order ET/187/2021). This was an issue raised by the Court arising from the fact that these matters were only disclosed to the Court on the second day of the hearing of the appeal arising from questions raised by members of the Court with counsel for the City Council on the first day of the appeal. It was one of the issues on which the Court asked the parties to focus on the additional (third) day of the hearing of the appeal.

 

330.          As outlined earlier, the significance of the belated disclosure of these matters is that at the time of the trial in the High Court and right up to the second day of the hearing of the appeal, the Judge, this Court, Councillor Flynn, (and while he was involved in the case and in the appeal, Mr. Carvill) their legal team and the City Council's legal team were all under the mistaken impression that the relevant decision to proceed with the Scheme which was being challenged in the proceedings was that embodied in Order ET/178/2021. Neither they nor this Court were aware that that order had been rescinded on 2 March 2021 or that the actual decision taken by the City Council under section 38 of the 1994 Act to commence the Scheme was a decision taken by Mr. O'Brien on behalf of the City Council on 8 February 2021 (which was not reduced to or recorded in writing). The appeal was conducted on that mistaken basis up to the point on the second day of the hearing when, having taken instructions from the City Council after the first day of the hearing, counsel for the City Council informed the Court of these matters of which counsel and the rest of the City Council's legal team (as confirmed by Mr. O'Brien) had not been made aware prior to that point in time.

 

                                                      Submissions

 

331.          Neither Councillor Flynn nor the City Council dealt with this issue in the supplemental written submissions directed by the Court at the end of the second day of the hearing. However, in a communication sent by the Registrar to the parties in advance of the third day of the hearing, the parties were informed that among the issues on which the Court wished to be addressed were the consequences of these matters and whether the Court should decline to adjudicate on the appeal. One of those consequences gave rise to the further debate on the issue of mootness (discussed in the previous section of this judgment). The other concerned the possible abuse of process or breach of the duty of candour by the City Council.

 

332.          In his submissions on the issue on the third day of the appeal, counsel for Councillor Flynn did refer to the duty of candour and contended that there was a breach of that duty by the City Council by reason of the non-disclosure, in particular, of the fact that Order ET/178/2021 had been rescinded, which he said was relevant to a number of arguments which Councillor Flynn was making by way of challenge to the City Council's decision to proceed with the Scheme. However, counsel preferred to deal with the issue in the context of mootness and relied on it as a further argument is to why the Court should not exercise its discretion to hear the appeal. Councillor Flynn's real focus, therefore, was on the mootness issue and not on any potential abuse of process or breach of the duty of candour on the part of the City Council. It was not contended on behalf of Councillor Flynn that the Court should decline to adjudicate on the appeal by reason of any alleged abuse of process or breach of the duty of candour.

 

333.          Counsel for the City Council relied on the contents of Mr. O'Brien's supplemental Affidavit of 24 June 2022 (which, it will be recalled, was sworn at the direction of the Court at the conclusion of the second day of the hearing). In that affidavit, Mr. O'Brien explained why Order ET/178/2021 was rescinded and stated that the failure to inform the Judge, the City Council's legal representatives and the Applicants in the proceedings was due to an "oversight" on the part of the City Council. The reasons for rescinding the order as set out in Mr. O'Brien's affidavit have already been considered in this judgment and it is unnecessary to repeat them here save to note that the City Council considered that it was important for reasons of clarity and safety to do so.  Mr. O'Brien swore that the omission to draw to the attention of the Judge (and others) the fact that Order ET/178/2021 was rescinded by Order ET187/2021 was not deliberate. He said that it was "not appreciated" that that fact was relevant to the proceedings and "were it otherwise [he] would have informed the Council's legal representatives...immediately".  He apologised on behalf of the City Council for omitting to do so.

334.          Counsel for the City Council accepted that the City Council was subject to a duty of candour but submitted that it had not breached that duty in circumstances where the omission to disclose the fact that the relevant order had been rescinded and that the relevant decision had in fact been taken by Mr. O'Brien himself on 8 February 2021 was an oversight, was not deliberate and was not intended to mislead anyone. He fully accepted that these matters ought to have been drawn to the attention of the Judge in the High Court and was not suggesting that the City Council was not at fault in failing to do so but observed that Mr. O'Brien had "held up his hands and...apologised for it".  If there was a breach of the duty of candour, he contended that the breach was not deliberate, that there was no intention to mislead and that the omission to disclose these matters arose from a lack of appreciation as to their significance to the case (and the appeal).

 

  Decision on the Abuse of Process/Candour Issue

335.          In defending the proceedings, the City Council had and has a duty of candour to the courts involved (the High Court and this Court) and to its opponents in the case. In addition to the duty of candour, the City Council also had an obligation under Order 84, Rule 22(4) RSC (as amended) to verify facts relied on in its opposition to the proceedings by affidavit. In failing to refer both to the fact that the decision under section 38 of the 1994 Act was made on 8 February 2021 and the fact that Order ET/178/2021 was rescinded on 2 March 2021, the City Council did not comply with its obligations under Order 84, Rule 22(4). These facts ought to have been referred to in the City Council's Statement of Opposition (which, after all, contained a detailed chronology of relevant events at para. 10) and ought to have been referred to in the affidavits sworn by Mr. O'Brien verifying the facts contained in the City Council's Statement of Opposition (which also contained such chronologies which omitted these highly relevant facts). However, we are satisfied that the breach of that provision should not prevent the Court from adjudicating on the appeal.

 

336.          The Court has concluded that there was no abuse of process by the City Council in the sense of that term is generally used in litigation by reason of its belated disclosure of these relevant matters. However, we have concluded that there was a breach by the City Council of its duty of candour, albeit that we fully accept that that breach was unintentional and inadvertent and does not afford a reason for the Court to decline to adjudicate on the appeal.

 

337.          As a public body defending judicial review proceedings, the City Council was subject to a duty of candour to the court and to its opponents. It had a duty to be upfront in the manner in which it defended the proceedings. In R. v. Lancashire County Council ex parte Huddleston [1986] 2 All ER 941, Lord Donaldson MR stated that public authorities whose decisions are challenged by way of judicial review must conduct those proceedings "with all cards face upwards on the table".  That observation was quoted with approval by Clarke CJ in the Supreme Court in RAS Medical (at para. 71, p. 83). Lord Donaldson M.R. also aptly observed that "the vast majority of the cards will start in the [public body's] hands".  

 

338.          In O'Neill v. Governor of Castlerea Prison [2004] 1 IR 298, Keane CJ in the Supreme Court, described as "well-founded", an argument made on behalf of the Applicant in that case that "... in judicial review proceedings a Respondent should disclose to the court at all materials in its possession which were relevant to the decision sought to be impugned..." (at page 316).

 

339.          More recently, in Student Transport Scheme Limited v. Minister for Education and Skills [2021] IESC 35, Clarke CJ in the Supreme Court described the duty or principle as being that "public authorities should be transparent in litigation" (at para. 6.12) and referred to a number of other Supreme Court decisions in which that principle was accepted by the Supreme Court. 

 

340.          The Irish and English authorities on the duty of candour were helpfully reviewed and the principles derived from those authorities were summarised by Barrett J in the High Court in Murtagh v. Judge Kilrane [2017] IEHC 384. The High Court subsequently adopted and applied those principles in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanįla [2019] IEHC 85 (Barniville J). However, in Friends of the Irish Environment CLG v. Government of Ireland  [2021] IECA 317, Costello J in the Court of Appeal, having set out the principles summarised by Barrett J in Murtagh, made the point that the extent of the duty of candour had not been the subject of any detailed debate or submission in the hearing of the appeal in that case and, for that reason, the Court was refraining from commenting on or endorsing all of the principles summarised as representing the law in this jurisdiction, save for those derived from the decision of the Supreme Court in O'Neill.  As the full extent of the duty of candour was similarly not explored in the submissions in this case, we also refrain from expressly endorsing the summary of those principles in Murtagh (while not necessarily disagreeing with any of them). The full extent of the duty of candour may need to be more fully considered in another case.

 

341.          The Court of Appeal recently considered the duty of candour in Elsharkawy v. Minister for Transport [2024] IECA 258 (judgment delivered by Butler J) in the context of an application pursuant to Order 31, Rule 18 RSC for inspection of certain documents comprising legal advice referred to in a statement of opposition. In her judgment for this Court, Butler J referred to the relevant case law and noted that notwithstanding developments in the law in terms of the requirements for openness and transparency on the part of public authorities and the enactment of legislation such as the Freedom of Information Act 2014 and the Data Protection Acts 1998 - 2018, "the duty of candour remains an important principle governing the conduct of respondents in public law litigation, albeit that findings that the duty has been breached remain relatively rare" (at para. 42).  Those dicta were cited recently and applied by the High Court (O'Donnell J) in Flynn v. Commissioner of An Garda Sķochįna [2024] IEHC 687 (at paras. 55 - 59).

 

342.          We have concluded, however, that in this case there was a breach by the City Council of its duty of candour by reason of its omission to disclose until the second day of the hearing of the appeal the making of the section 38 decision on 8 February 2021 and the fact that Order ET/178/2021 had been rescinded. These were undoubtedly very significant matters as the Court has held and their belated disclosure gave rise to a number of additional legal issues which the Court has had to decide over and above those which were already before the Court on the appeal (such as the validity of the decision made on 8 February 2021, the issue of mootness and abuse of process/duty of candour issues). Those matters clearly ought to have been disclosed to the High Court at the outset and to this Court when the appeal was brought by the City Council. Mr. O'Brien did provide an explanation and an apology on behalf of the City Council for the failure to disclose the fact that Order ET/178/2021 had been rescinded. However, he did not fully explain in his supplemental affidavit as to why the fact that he had made the relevant decision under section 38 of the 1994 Act on behalf of the City Council was not disclosed in any of the earlier affidavits or referred to in the City Council's Statement of Opposition (and only emerged during the hearing of the appeal). The failure to disclose these issues did in fact give a misleading impression to the Judge of the High Court, to Councillor Flynn and Mr. Carvill and their legal representatives and to the City Council's own legal representatives. We entirely accept that that was not deliberate, but it was careless and most unfortunate, particularly in a case of such significance and importance to the parties.

 

343.          Further, the City Council officials involved ought to have informed their legal representatives of the fact that the relevant order had been rescinded and sought advice as to the implications of that development for the case. If they had done so, the advice would undoubtedly have been that that fact should be disclosed to the High Court and to the Applicants. Similarly, the officials ought to have corrected the misapprehension as to the legal basis for the City Council's decision to proceed with the Scheme and, if they had done so, the existence of the decision made on behalf of the Council by Mr. O'Brien on the 8 February 2021 would have come to light much sooner than it did and much of the confusion created would have been avoided (as would the additional costs that have arisen).

 

344.          Further, the City Council ought to have taken the opportunity to correct the misapprehension which everyone was under as to the correct position, as appeared from para. 37(i) of the High Court judgment and from the City Council's initial written submissions on the appeal (see, for example, para. 67 of those submissions), which clearly showed that the Judge and the Applicants and others were all under the impression that the relevant decision was that embodied in Order ET/178/2021 which had, in fact, been rescinded by the City Council months before the hearing in the High Court.

 

345.          In all these circumstances, we conclude that the City Council did breach its duty of candour. However, we entirely accept, as counsel submitted, that that breach was inadvertent and arose from an oversight by the relevant personnel in the City Council, that there was no intention to mislead and that it arose from a lack of appreciation as to the significance of those matters for the litigation and that the City Council (through Mr. O'Brien) has apologised for it. The Court accepts that apology. We do not believe that what occurred amounted to an abuse of process such that the Court should decline to adjudicate on the appeal. However, the consequences of the breach should, in our view, be reflected in an appropriate order for costs.

 

 

 

 

 

 

 

 

 

(10) The Cross-Appeal Issues

 

346.          Councillor Flynn's Respondent's notice pleads five grounds of cross-appeal, the principal thrust of which asserts that the Judge erred:

 

(1)        In concluding (at para. 40) that there was no requirement for public participation in AA screening and

(2)        In concluding (at para.36) that although a breach of Article 9a of the EIA Directive was pleaded, the plea lacked the particularity that was required.

 

Each of these grounds are considered in turn. 

 

                           Was public participation required for AA screening?

 

347.          In aid of his contention that the Judge erred in concluding that there was no requirement for public participation in AA screening, Councillor Flynn relies on Case C-243/15 Lesoochranįrske Zoskupenie ECLI:EU:C:2016 838 ("Brown Bear II")  and points to the obiter view of Simons J in Sweetman v. Environmental Protection Agency [2019] IEHC 81 that the CJEU judgment in Brown Bear II is open to the interpretation that there is a right of public participation at the administrative stage under Article 6(3) of the Habitats Directive. It is thus argued that Article 6(3) of the Habitats Directive includes both Stage 1 screening and Stage 2 AA. In those circumstances, it is said that the AA screening assessment carried out by the City Council was in breach of Article 6 of the Habitats Directive when read in light of Articles 6 and 9 of the Aarhus Convention. Mr. Steen SC in oral submissions described the procedure adopted by the City Council as "completely out of step" with what is the norm and pointed to Article 120 of the Planning and Development Regulations which states that where a local authority proposes to carry out a sub-threshold development it shall carry out a preliminary examination of at least the nature, site or location of the development. It is also argued that public participation arising only at Stage II AA is inconsistent with the general precautionary approach urged by the CJEU when interpreting the Habitats Directive (Case C-323/17, People over Wind v. Coillte, para. 30).

 

348.          The City Council argues that Councillor Flynn's reliance on Brown Bear II and Article 6 of the Aarhus Convention is misplaced, as is his reliance on Sweetman v. Environmental Protection Agency.  Neither case, the City Council asserts, offer support for the proposition that there is a public consultation requirement for AA screening. 

 

                                 Decision on the public participation issue

 

349.          In Brown Bear II, the CJEU found that Article 47 (right to an effective remedy) of the Charter of Fundamental Rights, read in conjunction with Article 9(2)  and (4) of the Aarhus Convention, precludes procedural rules that allow authorities to take a final decision on a project under the Habitats Directive whilst proceedings on the status of an environmental organisation in the decision-making process were still ongoing. The CJEU held that Article 47 of the Charter was applicable by interpreting Article 6(3) of the Habitats Directive in light of Article 6(1)(b) of the Aarhus Convention. Thus, the environmental organisation at the heart of Brown Bear II derived a right from Article 6(3) of the Habitats Directive to participate within the meaning of the Aarhus Convention in a process for authorisation of a project likely to have a significant effect on the environment (paras. 46-49)

 

350.          Whilst in Sweetman v. Environmental Protection Agency, Simons J noted that the CJEU had indicated that the Water Framework Directive and the Habitats Directive should be read in light of the Aarhus Convention on public access to information, public participation in decision-making and access to justice in environmental matters, we do not believe that that observation is determinative of the argument Councillor Flynn advances, namely that there is a right to public participation for the purposes of the Habitats Directive at the AA screening stage.  We are also not persuaded by Councillor Flynn's argument that the CJEU's pronouncements in People over Wind v. Coillte are authority for the proposition that public participation is required at the AA screening stage.  At para. 39 the CJEU stated as follows:

 

"It is, moreover, from Article 6(3) of the Habitats Directive that persons such as the Applicants in the main proceedings derive in particular a right to participate in a procedure for the adoption of a decision relating to an application for authorisation of a plan or project likely to have a significant effect on the environment." 

 

351.          Patently, what is being referred to in para. 39 is the AA itself, as opposed to screening for AA. What the CJEU is saying is that there is a right to participate in respect of a plan or project "likely to have a significant effect on the environment" - which is a reference not to screening but rather to participation in an AA.  Under Article 6(3) of the Habitats Directive, the requirement for public participation is only for the stage 2 full Appropriate Assessment and then only "if appropriate". Neither section 177(U) of the 2000 Act nor Article 42 of the Planning and Development Regulations 2001 provide for public consultation in AA screening. 

 

352.          Councillor Flynn cited no judicial authority, and certainly no CJEU authority, which indicates the right to public participation in environmental proceedings and environmental decision-making extends to screening under either the EIA Directive or the Habitats Directive.  

 

353.          We are satisfied that there is no public consultation requirement for AA screening.  Beyond a mere assertion, Councillor Flynn has not identified such a requirement.

 

354.          Insofar as it was argued that if the Court found there was uncertainty in the law in relation to the issue it could make a reference to the CJEU, the Court finds no such uncertainty and, therefore, the question of a reference to the CJEU does not arise.

 

                                         The Article 9a pleading issue

 

355.           Article 9a of the EIA Directive provides:

"Member States shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.

 

Where the competent authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from this Directive."

 

356.          The case pleaded by the Applicants in the High Court was that local authority development pursuant to section 38 of the 1994 Act and/or section 179 of the PDA and/or Part 8 of the Planning and Development Regulations was in breach of Article 9a of the EIA Directive as the "competent authority" was also the developer. It was said that the City Council failed to achieve an appropriate internal separation of functions within its administrative competence. This, the Applicants argued, was contrary to the prohibition on conflict of interest in Article 9a of the EIA Directive as well as the common law principle of nemo iudex en causa sua.

 

357.          The Applicants' contention was met with the City Council's objection that the Amended Statement of Grounds did not set out with sufficient particularity the precise point the Applicants were making and that had the City Council  known of the case they were seeking to make regarding the alleged lack of separation of powers between conflicting functions within the City Council it would have filed affidavits setting out in detail the administrative steps that had been taken to avoid such a conflict.

 

358.          As we have seen, the Judge accepted the City Council's argument and, so, he did not accept the submissions made by the Applicants as regards a breach of Article 9a. 

 

359.          In this Court, whilst acknowledging the High Court's finding that the issue addressed in the second limb of Article 9a was not adequately pleaded, Councillor Flynn points to the fact that at paras. 15-16 of the Statement of Opposition the City Council clearly engaged with paras. 14-15 of the Amended Statement of Grounds. On this basis, he says the Applicants' Article 9a ground should have been held to have been adequately particularised. Thus, the nub of Councillor Flynn's argument on this aspect of the cross-appeal is that the City Council clearly understood that appropriate separation for the purposes of Article 9a was an issue in the case.  Furthermore, it is contended that the City Council had ample opportunity to adduce any evidence it wished to put forward in response to Councillor Flynn's argument.  Councillor Flynn maintains that no such evidence could in fact have been brought forward such as might have cured the breach that is alleged to have occurred here.

 

360.          Councillor Flynn points to the fact that the decision to adopt the recommendation in the CAAS Report was made by Executive Order of Patrica Reidy, Acting Senior Engineer in the Environment and Transportation Department, dated 14 January 2021 and which was ultimately signed by Mr. O'Brien, Acting Executive Manager, on 14 January 2021. Mr. O'Brien had also signed the formal Executive Order on 25 February 2021 to commence the project.

 

361.          He relies on London Historic Gardens Parks and Trust v. Secretary of State for Housing, Communities and Local Government [2020] EWHC 2580 (Admin). There Holgate J stated that whilst there was no requirement for a separate authority or body to be created to carry out the duties imposed by the EIA Directive on the competent authority, there must however be, as the EIA Directive stipulates an "appropriate separation between conflicting functions" within the "organisation of administrative competences".

 

362.          It is argued by Councillor Flynn that independence for the purposes of the second limb of Article 9a requires first, that the functions of the competent authority under the EIA Directive be undertaken by an identified internal entity within the authority with the necessary resources and acting impartially and objectively. The second and "crucial" matter is, per Holgate J, "the prohibition of any person acting or assisting in the discharge of those functions from being involved in promoting or assisting in the promotion of the application for development consent and/or the development" (para. 94).

 

363.          Councillor Flynn submits that, here, Mr. O'Brien did not abide by those criteria in circumstances where Mr. O'Brien was both the apex of the team which proposed the cycleway project and also the person who carried out the screening determination and made the decision in February 2021 (which has since been rescinded) to go ahead with the project.  It is therefore impossible, Councillor Flynn asserts, to contemplate how any functional separation could have been put in place unless Mr. O'Brien had "split personalities".  On that basis, Councillor Flynn asserts a breach of Article 9a.

 

 

364.          The City Council's submission is that the case Councillor Flynn seeks to assert on appeal in relation to Article 9a was found by the Judge not to have been pleaded with the requisite particularity and thus Councillor Flynn was not granted leave to pursue the complaints he now attempts to advance. Moreover, it says that since the Applicants' pleadings with regard to Article 9a centred on the alleged failure of the State Respondents to properly transpose Article 9a they were not granted leave to advance any other argument based on Article 9a save those set out at paras. 14-15 of the Amended Statement of Grounds, para. 15 of which pleads "...there is no requirement for a screening assessment to be carried out by the Board (or any external body) when a local authority is proposing to carry out development. This is contrary to Article 9a of the EIA Directive" (clearly a transposition issue).

 

365.          Accordingly, the City Council's argument is that the Applicants' grant of leave did not involve a ground of challenge that the functional separation within the City Council was deficient for the purposes of Article 9a. The City Council also points out that the Applicants did not object when subsequently, the State Respondents were let out of the proceedings.

 

366.          The gravamen of the Council's argument, however, is that the Article 9a complaint falls away on the basis that the Scheme is not a project to which the EIA Direct applies.

                                Decision on the Article 9a pleading issue

 

367.          In the first instance, the Court accepts the City Council's argument that the Amended Statement of Grounds did not plead with the requisite particularity the Article 9a claim that the Applicants subsequently sought to make in the High Court, and which Councillor Flynn seeks to rehearse in this Court. The procedural requirements regarding the requirement for precise pleading, which has been endorsed by the case law and discussed earlier in the judgment, was not adhered to by the Applicants and, accordingly, we hold that the Judge was correct to find that the argument the Applicants sought to advance was not properly pleaded. It follows, therefore, that Councillor Flynn's contention that the Judge did not afford a proper interpretation to paras. 14-15 of the Amended Statement of Grounds must be rejected.

 

368.          More fundamentally, however, Councillor Flynn's Article 9a complaint must, as the City Council contends, fall away given that this Court has already determined that the EIA Directive was not applicable as the Scheme did not fall into any class prescribed in either Annex I or Annex II of the Directive.

 

369.          The Court notes the City Council's contention (at para. 74 of its written submissions) - made without prejudice to its pleading objection - that it had, in any event, abided by the requirements of the second limb of Article 9a by reason of the steps it took to comply with the obligations imposed by Article 9a. It contends that there was "clear separation within the Council when performing the actual screening 'duties' under the EIA Directive". These steps are particularised in 15-16 of its Statement of Opposition. In summary, para. 16 pleads that whilst the City Council could have availed of its own in-house expertise and personnel in producing a screening report, it had in fact retained the services of specialists (CAAS) to prepare both the EIA and AA screening reports. It is also said that following his appointment, Mr. Fingleton of CAAS had no dealings with Mr. O'Brien regarding the preparation of the screening reports or their content. Moreover, the traffic modelling referred to in the screening reports was compiled by the NTA, not the City Council. On these bases, and albeit the EIA screening was ultimately done by the City Council, the City Council contends that the requisite compliance with Article 9a was nevertheless met through the engagement by the City Council (qua promoter/developer) of outside consultants. The argument thus canvassed by the City Council is that the promoter duty under Article 4(4) of the Directive (i.e. to provide the necessary information for the screening) was performed by CAAS, which, it is said, is a completely independent external body entirely separate to the individual (Mr. O'Brien) who made the determination for the purposes of Article 4. The City Council further points out that if, ultimately, EIA was required, it would never be the case that that would be done by the City Council, given that the EIA assessment is a matter for An Bord Pleanįla.

 

370.          The Court, however, is firmly of the view, in circumstances where the question of compliance with the requirements of Article 9a does not arise in this case since the Scheme has been held not to fall within either Annex I or Annex II of the EIA Directive, that it would not be appropriate to embark on a consideration of whether the steps taken by the City Council accorded with the requirements of the second limb of Article 9a, or indeed whether, as Councillor Flynn sought to argue, Article 9a has direct effect such that the issue of the transposition of Article 9a (being a matter for the State respondents) was not a bar to the argument Councillor Flynn sought to advance. In the circumstances, therefore, the substantive Article 9a complaint which Councillor Flynn wishes to advance, and to which the City Council responded, must await a case where the EIA Directive applies and in which the Article 9a point properly arises.

 

371.          Whilst canvassed by Councillor Flynn, in circumstances where the Court has found that the Scheme is not a "project" falling within Annex I or Annex II of the EIA Directive, there is no basis for the Court to consider whether to make a preliminary reference to the CJEU pursuant to Article 267 TFEU as to the scope of Article 9a.

 


 

9. Summary of Conclusions

 

372.          We will now summarise our conclusions on each of the issues identified at para. 84 above:

 

                                           (1) The Section 50A Issue

 

373.          The burden is on Councillor Flynn to establish that Section 50A clearly operates to oust the appellate jurisdiction of this Court. In the Court's view, it has not been established - and certainly has not been clearly established - that the EIA or AA screening decisions made by the City Council were made in the exercise or purported exercise of any function under the PDA. As regards the other "decisions" said to  be come within the scope of Section 50A - the "decision" that the Scheme was exempt from the requirement to obtain planning permission pursuant to section 4(4) of the PDA and the "decision" that the Scheme was exempt from the requirements of section 179 of the PDA - these exemptions followed from the provisions of the PDA and did not involve the exercise or purported exercise by the City Council of any function under the PDA. The preliminary objection to this Court's jurisdiction to hear the City Council's appeal must therefore be rejected.

 

 

 

 

 

 

 

                     (2) The Scheme Status Issue

 

374.          While is far from satisfactory that no written section 38 order or decision exists, the available material - including but not limited to the order of the 25 February 2021 - makes it sufficiently clear that what was proposed, and what was authorised, was a six-month trial. That was stated in all the project documents. The entire consultation process was conducted on that basis. It was also stated repeatedly and unambiguously on affidavit by Mr O'Brien. If the Applicants wished to challenge that evidence, then they should have sought to cross-examine Mr O'Brien. The unavoidable implication of the Judge's finding on this issue was that the City Council and Mr Brien had consistently misrepresented the Scheme both to councillors and to the public.  In this Court's view, there was no evidence to sustain such a serious finding, which reflected adversely and unfairly on the integrity of the City Council and its officers and in particular Mr O'Brien. In the circumstances, the High Court Judge erred in finding that the Scheme was not temporary.

                                    

(3) The AA Screening Issue

 

375.          The sole basis on which the Judge condemned the AA screening report was that its conclusions were based on the premise that the cycleway was not temporary. In light of this Court's conclusion that the Judge erred in concluding that the Scheme was not temporary, it follows that the Judge's conclusion is unsustainable.

 

 

                     

                                (4) The EIA Pleading Issue

 

376.          The Court upholds the City Council's argument that in their pleadings, the Applicants failed to identify and plead either of the two bases (urban development and road development) under which they contended the Scheme constituted a project for the purposes of the EIA Directive. However, notwithstanding our conclusion on the pleadings issue, in light of the fact that the Scheme in issue here is one of many such schemes planned and/or already undertaken by the City Council and given that the Scheme here may be revived, the Court has concluded that the substantive issue of whether the Scheme constitutes a project to which the EIA Directive applies should be determined.

 

                                          (5) The EIA Screening Issue

 

377.          The Court has concluded that the Scheme does not constitute either an "urban development project" or a "road development project" for the purposes of the EIA Directive and, so, we hold that in concluding otherwise, the Judge erred. Furthermore, as the Judge's finding that the EIA screening conducted by the City Council was flawed was predicated on his conclusion that the Scheme constituted a project within the meaning of the EIA Directive, it follows, in light of this Court's finding to the contrary, that EIA screening was not required for the Scheme. It also follows that the Judge's finding that the EIA screening report was "fundamentally flawed" must fall, as must his finding that the report was "inadequate in circumstances where an EIA is required".

 

 

                           (6) The Planning Permission Issue

 

378.          Even if the Judge was correct in concluding that that each of the EIA Screening and the AA Screening conducted by the City Council was inadequate, it did not follow that the City Council was required to carry out a full EIA and AA or that, if the proposed cycleway was to proceed, it would "have to go through the planning process". Even if the Judge was correct in holding that EIA and AA screening was required and that such screening had not been carried out adequately - and we have found that, as a matter of law, no EIA screening was required here and that there was no basis for impugning the adequacy of the AA screening carried out by the City Council -  there was no material before the High Court on which the Judge could have properly concluded that an EIA or AA was required. Consequently, he was in error in stating that, if the Scheme was to proceed, it had to go through the planning process.

 

                                         (7) The Scheme Decision Issues

 

379.          The power conferred on road authorities by section 38 of the 1994 Act is, on any view, potentially far-reaching. Section 38 itself seems clearly to reflect a legislative judgment that the scope and impact of certain traffic calming schemes potentially coming within the scope of that section may be such that they should be the subject of mandatory public consultation and should be permitted to proceed only if approved by the elected members. Without expressing any view on the merits of the Scheme here - that is not, of course, a matter for the Court - having regard to its scale and impact, as well as the degree of public debate and controversy that it provoked, the scheme here arguably fell squarely into that category and it is unfortunate that the procedures evidently contemplated by the Oireachtas did not apply by reason of the absence of Ministerial regulations prescribing classes of traffic calming measures for the purposes of section 38. Had such regulations been in place, it may be that at least some of the significant controversy here might have been avoided.

 

380.          Even in the absence of such regulations, fundamental principles of legality, legal certainty and good administration require that such decisions pursuant to section 38 should either be made in writing or, or at least, that there should be a contemporaneous written record of such decisions. The course of these proceedings vividly illustrates why a written decision or record is required. The absence of a written section 38 decision here has resulted in a fog of confusion and uncertainty as to what was the decision made and - as significantly - when it was made.

 

381.          In the Court's view, it is a fundamental principle of administrative law that decisions having legal effects made under statute by public bodies should generally be made or recorded in writing. The decision in issue here is clearly in that category, for the reasons already indicated. While a formal Manager's Order was not necessary, the precise parameters of the scheme authorised by Mr O'Brien ought to have been the subject of a written decision or at least been contemporaneously recorded in writing. The Court also considers that reasons should have been given for the decision to authorise the Scheme. Given that the Scheme Decision has lapsed, the Court does not consider that it needs to or should go further than holding that the Scheme Decision here should have been made - or recorded - in writing and that the City Council was, as a matter of principle, required to give reasons for that decision.

 

                                             (8) The Mootness Issue

 

382.          The Court has concluded that the appeal is not moot by reason of the fact that the Scheme Decision, that is the decision made by the City Council on 8 February 2021 to proceed with the Sandymount Scheme, has lapsed as it provided for a trial which was to last six months from 1 March 2021 and by reason of the fact that the relevant Executive Manager's Order (Order ET/178/2021) was rescinded long before the hearing in the High Court. Our reasons for so concluding include the fact that (a) the City Council confirmed on affidavit that it is its intention to proceed with a cycle trial in Sandymount in the future and, therefore, the legal issues raised in the appeal are not abstract or hypothetical but real and concrete, (b) the Judge made a number of very significant findings on legal issues which were critical to the introduction of the Scheme, including finding that (i) a full EIA and a full AA were required and that if the City Council was and is to proceed with any such trial in the future, it would have to go through the full planning process and (ii) the Scheme constituted an "urban development" project and a "road development" project for the purposes of the EIA Directive. The Court has held that those findings are incorrect as a matter of law.  They would remain binding on the parties and continue to subsist as a legal precedent were this Court not to hear and determine the appeal. That would be most undesirable and would have obvious implications not only for any future similar cycle trial but for a whole range of other developments which the City Council (and other local authorities) might wish to undertake.

 

383.          Even if the Court had considered that the appeal was moot, it would nonetheless have exercised its discretion to hear and determine the appeal for a number of reasons including (a) the fact that the High Court made an order for costs against the City Council based on its findings on the legal and factual issues in the case and it would not be reasonable or just to require the City Council to satisfy that order for costs in circumstances where it was contending that the relevant findings in the High Court ought not to have been made, and (b) the findings of the High Court have very serious implications for the way in which the City Council is required to discharge its statutory functions and responsibilities and very significant operational implications not only for the Scheme and any similar cycle trial which the City Council intends to introduce in Sandymount in the future but also for other future developments by the City Council (and by other local authorities). 

 

                              (9) The Abuse of Process/Candour Issue

 

384.          The Court has concluded that the failure by the City Council to disclose the decision of the City Council under section 38 of the 1994 Act which was made on 8 February 2021 and the fact that Order ET/178/2021 was rescinded on 2 March 2021, long before the hearing of the case in the High Court until they were belatedly disclosed during the hearing of the appeal did not amount to an abuse of process by the City Council in the conduct of the proceedings.

 

385.          However, the Court has concluded that the failure to disclose these matters during the proceedings in the High Court and during the appeal to this Court until the second day of the hearing of the appeal was a breach by the City Council of its duty of candour. We fully accept that the breach was inadvertent, that there was no intention to mislead the High Court or this Court or the Applicants/Appellants and that the failure to disclose these matters was due to an oversight by the relevant officials in the City Council and a lack of appreciation on their part of the significance of those matters for the litigation.  The City Council has apologised for what occurred and that apology is accepted by the Court. The Court does not believe that the breach by the Council of its duty of candour should, in the particular circumstances of the case, preclude the Court from hearing and determining the appeal, as important and systemic legal issues required to be determined in the appeal.

 

                                          (10) The Cross-Appeal Issues

 

386.          Following our consideration of the relevant case law, the Court has concluded that contrary to Councillor Flynn's argument, there is no public participation requirement for AA screening. Beyond a mere assertion, Councillor Flynn has not identified any basis upon which the Court could conclude otherwise than it did. The Court has also concluded that Councillor Flynn's argument that the City Council breached Article 9a must fail, not least on the basis, as the Judge correctly found, that the argument sought to be made in the High Court was not properly pleaded. Secondly, and perhaps more fundamentally, this ground of appeal fails on the basis that this Court has determined that the EIA Directive was not engaged since the Scheme does not fall into any class prescribed by Annex I or Annex II of the Directive.

 

387.          As regards both grounds of cross-appeal, Councillor Flynn canvassed the possibility of a reference to the CJEU if the Court found uncertainty in the law. With regard to the public participation issue, the Court found no such uncertainty. Therefore, the question of a reference does not arise for consideration. As regards the Article 9a ground, consideration of whether to make reference does not arise in circumstances where the Scheme is not a project for the purposes of the EIA Directive.


10. ORDERS/COSTS

 

388.          In those circumstances, we allow the City Council's appeal and dismiss Councillor Flynn's cross appeal.

 

389.          The Court will afford the parties an opportunity to review and consider the judgment and to address it on the issue of costs (to include the costs in the High Court and in this Court) and the other orders to be made consequent upon this judgment.  The Court does not propose to set out any provisional view on the issue of costs.  However, as was made clear in the judgment, the belated disclosure of certain important matters by the City Council in the course of the appeal as a result of which the parties had to address and the Court had to determine a number of additional issues and to allocate a further (third) day for the hearing of the appeal, together with the Court's conclusion that there was a breach of the duty of candour on the part of the City Council, should have appropriate costs consequences for the City Council. The Court will hear the parties on what those consequences should be.  The Court will give further directions in that regard on the date of delivery of the judgment. 


Result:     Allow the City Council Appeal and Dismiss the Cross Appeal

 



[1] A further order was made on 25 February 2021 relating to temporary changes to the HGV Cordon (ET/183/2021) which also referred to temporary changes and a six-month trial. However, this order appears not to have been before the High Court (it was exhibited to Mr O' Brien's further Affidavit of 24 June 2022 sworn in accordance with this Court's direction).

[2] See the discussion in Bland, Highways (2020), Chapter 1.

[3] The Applicants criticised the consultation process: Affidavit of Micheal McLoughlin from O' Neill Amarach Consultations Limited sworn on 5 May 2021 and the Report exhibited by him. His criticism was disputed by Mr O' Brien. For the purposes of this appeal, nothing turns on that dispute. The Court does, however, observe that the non-statutory consultation process undertaken by Dublin City Council would not have complied with the requirements of section 38 had the proposed Scheme been prescribed for the purposes of that section in that (i) the consultation period (which ran from 21 August 2020 to 14 September 2020) was less than one month and (ii) no newspaper notice was published.

[4] When we refer in this judgment to the "impact" of traffic calming measures, we have in mind their cumulative impact - both positive and negative - on local residents, local businesses and road users (including car users, bus passengers and cyclists) as well as their environmental impact (if any). "Impact" is not intended to have any negative connotation.


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