Convery v Dublin County Council

• Jurisdiction: Ireland
• Judge: Keane J.,Miss Justice Carroll
• Judgment Date: 12 November 1996
• Neutral Citation: 1995 WJSC-SC 4211,1998 WJSC-SC 4893
• Court: Supreme Court
• Docket Number: [1993 No. 8133P; S.C. No. 401 of 1995],Record No. 8133/1993
• Date: 12 November 1996

1995 WJSC-SC 4211

THE HIGH COURT

Record No. 8133/1993

CONVERY v. DUBLIN CO COUNCIL

BETWEEN

GRACE CONVERY

PLAINTIFF

AND

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

DEFENDANT

Citations:

KELLY V DUBLIN CO COUNCIL UNREP O'HANLON 21.2.86 1986/3/1057

Synopsis:

PLANNING

Road

Construction - Duty - Failure - Vehicle traffic - Density - Nuisance - Roads in housing estate used as passages connecting main roads - Failure of authority to ensure proper road structure for estate - Creation of public nuisance - (1993/8133 - Carroll J. - 13/10/95)- [1996] 3 IR 153

|Convery v. Dublin County Council|

NUISANCE

Creation

Local authority - Powers - Exercise - Negligence - Housing estate - Development - Failure of planning authority to ensure proper road infrastructure - Insufferable traffic density in residential area - Plaintiff householder's action to abate public nuisance - (1993/8133 - Carroll J. - 13/10/95)- [1996] 3 IR 153

|Convery v. Dublin County Council|

1 Judgment of Miss Justice Carroll delivered the 13th day of October 1995

2 Mrs. Convery is a resident of Springfield Estate, Tallaght, Co. Dublin since the early 1970's. She sues on behalf of the residents of three roads in the estate, Alderwood Park, Alderwood Way and Alderwood Avenue, to abate a public nuisance caused by the extreme volume of traffic passing through these roads. The action was commenced by Plenary Summons followed by an application for an Interlocutory Induction. It was agreed that the hearing of the motion would be the hearing of the action, that there would be no pleadings, and that the Deponents would be subject to cross-examination. In all eleven Affidavits were filed. The relief claimed is a Mandatory Injunction directing the Defendants to abate the nuisance caused by the vehicular traffic using the three roads as an access route to Tallaght Town Square and other terminii.

3 Springfield Estate was built in the early 1970's. Attempts were made to deal with the problem. The matter was before Dublin County Council on the 11th February, 1991 when it was proposed that bollards would be erected at the northern end of Alderwood Avenue and Virginia Heights. On the 25th February 1991 the Council rejected the recommendation on the grounds that the vast majority of residents of the Springfield Estate objected to the closure. The matter came before the County Council again on the 16th April, 1991 when the manager was asked to report concerning what measures he proposed to take to alleviate the difficulties for the residents of Alderwood Park.

4 A report by Mr. John Henry, acting senior engineer in the Roads Department of the Defendant, on a traffic survey carried out in July 1992 sets out the problems. The Springfield area is bounded by Cookstown Lane to the north, Tallaght Bypass to the south, the Square to the east and Cheeverstown Road to the west. There are approximately 1,580 houses in the area, two schools, a neighbourhood shopping centre and some local shops. He says in essence the problem is a traffic "rat run" through the residential area which developed over the years. This was caused partly by a temporary access arrangement which has virtually become permanent and in part because of the time lag between the construction of the houses and the completion of the main road infrastructure. During the building boom of the 1970's this was not an uncommon problem and effects in some cases remain to this day. The problem is often compounded by the fact that local residents become accustomed to the traffic patterns which develop and resist the changes which would result from the completion of the network.

5 In the Springfield area Maplewood Road was intended to be the local distributor road linking Cheeverstown Road to the Cookstown/Old Bawn Road and serving the access requirements of the whole area. The Cookstown/Old Bawn Road has not yet been constructed so Alderwood Park, Way and Avenue have become the alternative route of the temporary arrangement. This alternative route with frontage development along its entire length is not an appropriate access route, particularly now that traffic volumes have grown to the present levels.

6 The report deals with a traffic survey carried out on the 16th July, 1992 by the local community under the guidance of the County Council. The through traffic element of flow at the southern end of Alderwood Park on the day in question was 24.3%. There was also a significant amount of traffic on the Alderwood Park going to and from Raheen, Whitebrook and Maplewood which are zones in the estate most remote from Alderwood Park. Mr. Henry said this traffic could also be considered as through traffic. These zones accounted for 40% of the total through traffic.

7 He said it is clear that Alderwood Park, Way and Avenue are acting as the local distributor road in the same way as Maplewood Road was built for this purpose. He discussed possible solutions. If bollards were placed at the junction of Alderwood Park with Old Blessington Road, this would result in a transfer of traffic to Maplewood Road of 42.6%. While he mentions fears expressed by residents that traffic at the schools would be substantially increased, he said the increase is not unexpected and must be judged in the context of the type of road which would carry this traffic and the capacity for which it is designed. Maplewood Road has little frontage development and is capable of carrying many times this volume.

8 The other option discussed was the construction of part of the Cookstown/Old Bawn Road and the linking of Maplewood Road to it as originally planned together with the closure of Alderwood Park. The traffic along Maplewood Road at the school would remain unchanged but the traffic east of Alderwood Avenue would increase substantially but again this must be judged in the context of the planned function of this road.

9 The third option he mentioned was to close Alderwood Avenue at the shops. This had the social drawback that it isolated the area east of the bollards, i.e. Alderwood Park, Alderwood Drive, Alderwood Way and some of Alderwood Avenue from the schools and the rest of the Springfield area. He concluded by saying the views of the local community should first be determined and if as a result of this consultation other options are proposed, these would be examined and hopefully a solution would emerge. But he said the present traffic situation in Alderwood Park, Way and Avenue is unacceptable as a residential environment and he said there must be a more equitable sharing of the traffic burden generated largely by the local community.

10 The report was presented by Mr. Henry at a meeting of the South Dublin Area Roads and Traffic Sub-Committee on the 11th June, 1993. At this meeting a motion was passed that Alderwood Park be closed to through traffic at its junction with Old Blessington Road by the provision of bollards. The normal procedure following the passing of such a motion would be to report to the South Dublin Area Committee and if that committee adopted the recommendation, the procedure for the provision of bollards would be initiated by giving statutory notice of the committee's proposal to the public press.

11 At the meeting of the South Dublin Area Committee on the 15th June, 1993 a further resolution was carried that the committee defer consideration of the recommendation to the next meeting of the Area Committee and that the Council consult with local residents" associations in this matter. These consultations were held on the 23rd June, 1993. On the 6th July, 1993 a meeting was held of South Dublin Area Committee and on that occasion a resolution was passed that the temporary closure procedure identified in the manager's report be initiated and that officials of the Council attend at a public meeting to be arranged locally to discuss the matter. The Council officials attended the public meeting held on the 15th July, 1993 at which Mr. Henry presented his report. On the 21st July, 1993 the County Manager advertised his intention temporarily to close access at the junction of Alderwood Park and Blessington Road in the Irish Press. On the 22nd July, 1993 the proposal was advertised in the Tallaght Echo. Two thousand four hundred and eighty one objections were received to the proposal. On the 29th July, 1993 the County Manager made a decision not the proceed with the closure of the access. A copy of this decision was not available.

12 Mr. John Murphy, a senior administrative officer in the Roads Department of the Defendant, said that the only binding motion was passed on the 6th July, 1993 whereupon the statutory procedure was initiated by the County Manager. He said that the County Manager at all material times followed the correct procedure and made a valid and reasonable decision not to proceed with the closure of the access from Alderwood Park to Blessington Road following consideration of the many objections received. He said the Council accepted that the original planning permission showed a map revealing the location as a cul-de-sac.

13 In oral evidence he said that, following the traffic report, they proposed, in an effort to solve the solution to let people see what would happen if there were temporary closures for three months. He said temporary closure is a function for the manager. But he said if a temporary closure was going to be permanent, they would have to go back to the local representatives. He said local authorities live in a political atmosphere and he was satisfied the closures would not work, due to local opposition.

14 Mrs. Convery claims that the number of vehicles using the route has increased to 12,000 a day. She said the figure was arrived at on their own count of six hundred to eight hundred an hour for seventeen hours a day. I accept that the traffic count in July did not represent the ordinary everyday picture. It was taken at a...