THE HIGH COURT

								          JUDICIAL REVIEW

									    2000 No. 2502JR

BETWEEN

DANIEL O’CONNELL

								APPLICANT

AND

ANTHONY O’CONNELL AND THE MINISTER OF THE ENVIRONMENT AND LOCAL GOVERNMENT

								     RESPONDENTS

Judgment of Mr Justice Finnegan delivered the 29th day of March 2001

	In these proceedings the Applicant seeks relief by way of judicial review in relation to a public local inquiry in respect of a road scheme pursuant  to the Roads Act 1993 Section 49.  The matter comes before me by way of a motion by the Applicant pursuant to the rules of the Superior Courts Order 84 Rule 23(2) wherein the Applicant seeks leave to amend his statement to ground application for judicial review by adding thereto additional reliefs and additional grounds.  The additional reliefs sought are as follows:-
	(a)	An Order of Certiorari of the said inquiry.
	(b)	A declaration that the inquiry fails to comply with the requirements of the Roads Act 1993 Section 49 (2)(a) and with the requirements of reasonableness.
	(c)	 A declaration that the said scheme insofar as it encroaches on the Applicant’s lands is in breach of the Applicant's property rights and
	(d)	Damages.

	The additional grounds upon which it is sought to rely are as follows:-
	“5.7	The Louth County Council as the road authority proposing the scheme in the course of the Inquiry, namely on the final day thereof, made an alternative proposal to the inquiry which it then recommended to the inquiry.  The alternative proposal constitutes a different scheme and has not been subjected to an Environmental Impact Statements and has not been submitted to public notice required by the provisions of the Roads Act 1993.
	 5.8     The alternative proposal, which was made on the final day of the Inquiry recommended by the local authority was comprised in a map described as Plan 22 Option 4 which map along with thirteen others, was placed on public display in January 2001, during the adjournment of the Inquiry.  All of the said maps which were variations of the alternative proposal were placed before the Inquiry and, given their number and the fact that it was only on the last day that one was signified as being the recommended alternative proposal and being recommended over and above the proposed scheme introduced such uncertainty to the inquiry that it can no longer fairly carry out its purpose namely to inquire into all matters relating to the scheme.  The said procedure thereby presented to the objectors to the scheme, including the Applicant, a variety of proposals upon which to comment without any adequate written notice of all relevant underlying consequences including any or any adequate environmental impact assessment and the Applicant has thereby been deprived of a fair hearing of the issues relating to the scheme and the alternative proposal.
	 5.9	The warrant of the Minister for the Environment appointing the inspector to conduct the inquiry and/or the subsequent directions of the Minister to the inspector are defective and in excess of the Minister’s jurisdiction in limiting the inquiry to the scheme and failing to require the inspector to inquire, in addition, into all matters relating to the scheme.

	 5.10	Alternatively the construction by the inspector of the terms of the said warrant is defective and in excess of jurisdiction for the reasons set out in paragraph 5.1 hereof.
	 5.11	In the premises the Minister has failed to cause a public local inquiry into all matters relating to the said scheme to be held contrary to Section 49(2)(a) of the Roads Act 1993.
	 5.12   The Applicant has engaged legal representation by way of Solicitor and Counsel for duration of the Inquiry and has thereby incurred expense and has thereby sustained loss and damage.”

	The public local inquiry commenced public hearings on the 6th September 2000 but was stayed on the 14th September 2000 and did not resume until the 21st November 2000 continuing until the 24th November 2000.  By that date the evidence had concluded and all that remained was for submissions to be heard.  On the application of Louth County Council the matter was adjourned to the 6th February 2001.  On the 6th February 2001 Louth County Council proposed an alternative scheme and indicated that they were recommending the same.  The effect of the amendment was to omit a section of the proposed road and a roundabout at the north-eastern end for a distance of approximately one kilometre.
	Arising out of these circumstances the Applicant now contends that the alternative proposal, constitutes a different scheme and that this vitiates the public local inquiry.  I am satisfied that underlying this application is a misapprehension as to the nature and effect of a public local inquiry pursuant to the Roads Act 1993 Section 49.  It is quite clear from Section 49(2) that the function of the inquiry is for the inspector conducting the same to consider the scheme and to make recommendations.  The object of the recommendations is to assist the Minister in carrying out his function under Section 49(3) of the Act, that is to approve the scheme with or without modifications or to refuse to approve the scheme.  The recommendation of the inspector is properly directed towards the Minister’s function and may recommend approval with or without modifications or refusal.  The omission of a section of the scheme is a modification and not a new scheme.  The recommendation of the County Council is irrelevant to the inspector’s function.  An advertisement of a recommendation is not envisaged by the Act.
	I am satisfied that this ground fails to meet the standard of disclosing an arguable case and accordingly I refuse leave to amend by inclusion of this ground.
	A further objection is taken that in the foregoing circumstances the requirements of the Roads Act 1993 Section 50 have not been complied with and that while an Environmental Impact Statement has been prepared it does not relate to the amended scheme recommended to the public local inquiry by Louth County Council.  Again I am satisfied that this objection does not meet the appropriate standard.  The amended scheme if recommended by the inspector  and if the recommendation is accepted by the Minister and the scheme approved with amendments it is in its entirety covered by the Environmental Impact Statement.  It is unarguable that the omission of part of the scheme in the manner envisaged by the County Council’s recommendation can render nugatory the Environmental Impact Statement insofar as it relates to that part of the scheme which it is now recommended should proceed.  To construe Section 50 of the Act in the manner contended for by the Applicant fails to acknowledge the scheme of the Act as it appears from Section 49 thereof that is that there is always the possibility of the scheme being approved with modifications.  It is possible to envisage circumstances where the modification is such that the scheme as modified goes outside the ambit of the Environmental Impact Statement.  Where, as here, there is a mere omission of part of the scheme this clearly is not the case.
	The next objection relates to the circumstance whereby the inquiry was adjourned with only submissions outstanding and on the adjourned date the recommendation of Louth County Council of the scheme with omissions was introduced for the first time.  The County Council placed on display at its offices plans showing thirteen new proposals in January 2001 and on enquiry the Applicant was informed that Louth County Council would not be recommending any of them.  It is contended on behalf of the Applicant that in proceeding as he did the inspector denied to parties attending or represented at the inquiry an opportunity to respond in any meaningful way to the proposed modifications to the scheme.  I propose granting leave to amend to include this ground as it is arguable that in so proceeding the inspector defeated the purpose of an inquiry under Section 49(2) of the Act.  It seems to me that the appropriate relief to be sought on foot of this ground is an order of prohibition directed to the inspector prohibiting him from presenting his report to the Minister until such time as the Respondent had been afforded an opportunity to consider and make representations in respect of the modification to the  scheme recommended by Louth Council.
	The next objection arises in the following circumstances.  At the inquiry Counsel for the Applicant requested of the inspector that the inquiry also consider the suitability of the  section of the Northern Link to the north east of the scheme the subject matter of the inquiry.  The inspector refused this request and restricted the inquiry to the scheme.  The Minister was requested by the Applicant to revoke the warrant which merely required the inspector to hold an inquiry into the scheme but made no reference to the exact phraseology of Section 49(2)(a) of the Act which requires that the inquiry be into all matters relating to the scheme.  I am not satisfied that an arguable case is disclosed.  To enquire into the scheme necessarily will require an inquiry into all matters relating to the scheme:  it does not require an inquiry into a road which will be the subject matter of a future scheme should the Northern Link be further extended to the north-east and which extension will then in any event be the subject matter of a separate inquiry at which the Applicant will of course be able to take part.
	The Applicant further sought of the Minister that he extend the scope of the inquiry to include within it the suitability of the section of the Northern Link to the north-east of the scheme the subject matter of the inquiry.  It seems to me from reading Section 49 that the Minister was correct in so doing and had he sought to extend the inquiry it would no longer have been an inquiry under Section 49 that is an inquiry into matters relating to the scheme but an inquiry into matters of wider ambit and beyond the scope of the inquiry required to be held by the section.  This objection does not meet the appropriate standard.  Accordingly I refuse leave to amend the grounds in relation to the inspector’s refusal to expand the scope of the inquiry to future road developments and the Minister’s refusal to revoke the warrant to the inspector to extend the scope of the inquiry by amending the warrant to include an inquiry into the section of the Northern Link to the north-east of the scheme.
	I give leave to the Applicant to amend his statement to ground application for judicial review by seeking the following relief:   
1.	“An order of prohibition restraining the first named Respondent from presenting a report of the public local inquiry until such time as the Respondent has been afforded an opportunity to make representations in respect of the amended scheme in Plan 22 Option 4.”

2. Damages

	The statement can be further amended by adding to the same as additional grounds those hereinbefore set out at 5(8)and 5(12).