Carvill and Another v Dublin City Council and Others

• Jurisdiction: Ireland
• Judge: Barniville P,Collins J,Faherty J
• Judgment Date: 11 April 2025
• Neutral Citation: [2025] IECA 84
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/224

Peter Carvill

Mannix Flynn

Applicants/Respondents

and

Dublin City Council

Respondent/Appellant

Ireland and the Attorney General

Respondents

[2025] IECA 84

Barniville P

Collins J

Faherty J

Appeal Number: 2021/224

THE COURT OF APPEAL

CIVIL

Mootness – Duty of candour – Planning permission – Appellant seeking to proceed with a cycle route trial – Whether there was a breach of the duty of candour

Facts: The first respondent, Dublin City Council (the Council), in 2021, decided to proceed with a cycle route trial in Sandymount in Dublin, known as the Strand Road Cycle Trial (the Scheme). Proceedings were brought by the second applicant, Councillor Flynn, a public representative and member of the Council, and by the first applicant, 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 High Court (Meenan J), for the reasons set out in his judgment delivered on 30 July 2021, made the following orders on 9 August 2021: (a) an order of certiorari quashing the 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 Council. On the application of Councillor Flynn and Mr Carvill, the proceedings were struck out against the second and third respondents, Ireland and the Attorney General, with liberty to apply. Mr Carvill withdrew from the proceedings in September 2021 after the appeal to the Court of Appeal was brought by the Council from the judgment and order of the High Court and the cross-appeal was maintained thereafter by Councillor Flynn only. Developments led to the introduction of a number of 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 Council and whether it was lawful, having regard to the applicable statutory provisions or otherwise, for the Council to make a decision orally and without any record of it or of the reasons for it.

Held by the Court that the Council did not require a certificate pursuant to s. 50A(7) of the Planning and Development Act 2000 to maintain its appeal, that the appeal was not moot, that Meenan J 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 Environmental Impact Assessment (EIA) and for Appropriate Assessment (AA) and that he was wrong to hold that an EIA, an AA and planning permission were required for the proposed Scheme. The Court also concluded that, while most unfortunate and while very likely to have significant costs implications, the Council’s belated disclosure of the existence of the relevant decision providing for the commencement of the Scheme and of the recission of an Executive Manager Order dated 25 February 2021, Order ET/178/2021, did not preclude the Council from maintaining its appeal whether on the grounds of mootness or on the grounds of a breach by the Council of its duty of candour. While the Court had found that the Council was in breach of its duty of candour, the Court had accepted that the breach was inadvertent and the relevant official had apologised to the Court.

The Court concluded, therefore, that the Council must succeed in its appeal. The Court also concluded that Councillor Flynn’s cross-appeal should be dismissed.

Appeal allowed. Cross appeal dismissed.

[APPROVED]

JUDGMENT of the Court delivered on 11 April 2025

INDEX

	PAGE
1. INTRODUCTION	2
2. FACTUAL BACKGROUND	8
3. PRE-ACTION CORRESPONDENCE	10
4. THE PROCEEDINGS	12
5. THE HIGH COURT JUDGMENT	13
6. THE APPEAL/CROSS-APPEAL	19
7. SUBMISSIONS AND HEARING OF APPEAL	24
8. THE ISSUES	28
(1) THE SECTION 50A ISSUE	28
(2) THE SCHEME STATUS ISSUE	35
(3) THE AA SCREENING ISSUE	37
(4) THE EIA PLEADING ISSUE	38
(5) THE EIA SCREENING ISSUE	50
(6) THE PLANNING PERMISSION ISSUE	68
(7) THE SCHEME DECISION ISSUES	69
(8) THE MOOTNESS ISSUE	80
(9) THE ABUSE OF PROCESS/CANDOUR ISSUE	89
(10) THE CROSS-APPEAL ISSUES	93
9. SUMMARY OF CONCLUSIONS	98
10. ORDERS/COSTS	102

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 Pleanála.

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...