Futac Services v Dublin City Council

• Jurisdiction: Ireland
• Judge: JUSTICE T.C. SMYTH
• Judgment Date: 24 June 2003
• Neutral Citation: 2003 WJSC-HC 5269
• Court: High Court
• Docket Number: Record No. 5757P/2003
• Date: 24 June 2003

2003 WJSC-HC 5269

THE HIGH COURT

Record No. 5757P/2003

FUTAC SERVICES LTD & REEFERCARE LTD v. DUBLIN CITY COUCIL & DUBLIN PORT CO LTD

DUBLIN

Between/

FUTAC SERVICES LIMITED and REEFERCARE LIMITED

Plaintiffs

-and-

DUBLIN CITY COUNCIL and DUBLIN PORT COMPANY LIMITED

Defendants

Citations:

ROADS ACT 1993 S52(3)

SZABO V ESAT DIGIFONE LTD 1998 2 ILRM 102

ROADS ACT 1993 PART IV

ROADS ACT 1993 S49(3)

ROADS ACT 1993 S55(A)

ROADS (AMDT) ACT 1998 S6

ROADS ACT 1993 S51(6)

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

CUSSEN, STATE V BRENNAN 1981 IR 81

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999

DEKRA EIREANN TEORANTA V MIN ENVIRONMENT & SGS (IRL) LTD UNREP SUPREME 4.4.2003

NOLAN TRANSPORT (OAKLANDS) LTD V HALLIGAN UNREP KEANE 22.3.1994 1994/5/1550

ROADS ACT 1993 S52

ROADS ACT 1993 S52(4)

CURUST FINANCIAL SERVICES LTD V LOEWE-LACK-WERK OTTO LOEWE GMBH & CO 1994 1 IR 458, 1993 ILRM 723

O MHURCHU V EIRCELLL LTD UNREP SUPREME 21.2.2001 2001/20/5410

DUNNE & LUCAS V DUN LAOGHAIRE RATHDOWN CO CO UNREP SUPREME 24.2.2003

DWYER NOLAN DEVELOPMENTS LTD V DUBLIN CO COUNCIL 1986 IR 130

HOLLAND V DUBLIN CO COUNCIL 1979 113 ILTR 1

Synopsis:

INJUNCTION

Interlocutory

Property - Local authorities -Transport - Administrative law - Right of access - Road network - Dublin Port Tunnel - Breach of statutory duty - Whether proposed new access route to plaintiffs” business adequate - Whether injunction should issue - Roads Act, 1993 (2003/5757P - Smyth J - 24/6/2003)

Futac Services v Dublin City Council

The plaintiffs owned a business near roadworks connected to the Dublin Port Tunnel. As part of these works it was proposed to close a road that the plaintiffs used for access and to provide an alternative route. The plaintiffs sought an injunction to prevent closure of the existing road. The plaintiffs contended that the new route would render it impossible for them to carry out their business and that the plaintiffs would suffer irreparable financial loss and damage. A mandatory injunction was sought to direct the first defendant to provide the plaintiffs with a safe and adequate entrance. In addition it was submitted that the first defendant had failed to comply with its statutory duty as set out in section 52(3) of the Roads Act, 1993. On behalf of the defendants it was submitted that the alternative access route was considered at a public inquiry, no objection was made and the scheme was approved by Ministerial order. In addition it was stated that the proposed new arrangements were adequate. A preliminary issue was also raised in regard to the appropriateness of the plaintiffs’ proceedings given the statutory framework which provided for a judicial review mechanism and it was claimed that a significant delay had occurred in initiating the proceedings.

Held by Smyth J in refusing the injunction. There was a serious question as to the extent of the delay that had arisen in the case. Parties who wished to challenge the validity of administrative decisions were under a duty to do so promptly. The failure by the plaintiffs to move promptly was particularly serious. The granting of an injunction would have a very serious effect on the sequencing and completion of the project. The matter should have been dealt with as set out in section 55 of the Roads Act, 1993. In addition damages would be an adequate remedy and the balance of convenience was against granting the injunction sought.

JUSTICE T.C. SMYTH

DELIVERED ON TUESDAY, 24TH JUNE 2003

1 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

2 MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ON TUESDAY, 1ST JULY 2003

3 The Plaintiffs, who are owners of a container depot business, seek by way of interlocutory injunction to restrain Dublin City Council (hereinafter referred to as “the Council”) and its contractor from closing off the entrance to the Plaintiff's premises at Bond Road, Dublin Port, Dublin, and from continuing with the construction at Tolka Quay Road of an entrance to the Plaintiffs' premises. The Plaintiffs contend that the proposed new entrance from Tolka Quay Road to the Plaintiffs' premises will render it impossible for the Plaintiffs to operate their business from the premises and that such entrance or exit as proposed is not an adequate or suitable means of access, as a result of which the Plaintiffs will suffer irreparable financial loss and damage. Furthermore, the Plaintiffs assert t the First Defendant, the Council, has failed to comply with its statutory duties under Section 52(3) of The Roads Act 1993. In addition, the Plaintiffs have sought a mandatory interlocutory injunction directing the Council and its contractor to construct and provide the Plaintiffs with an entrance to the Plaintiffs' premises which is as safe and adequate and suitable for the Plaintiffs' business as the present Bond Road entrance to the premises.

4 The proposal to close the Bond Road entrance, and the acquisition of land for alternative access, was always part of the Dublin Port Tunnel Motorway Scheme and was considered at the public inquiry in 1999. On Day 15 of the public inquiry (Tuesday, 23rd March 1999) reference was made to the acquisition map and drawing DM08 and to a “long narrow strip in grey on the right-hand side of the acquisition, coming out at an angle to the larger grey strip”. Furthermore, on the same day of the hearing, it was stated on behalf of the Council that the Plaintiffs' access onto Bond Road would be closed off; that a new access would be provided to the Plaintiffs via plots 8024 and P8025; and that it was because of the need to provide an alternative access to the Plaintiffs that the existing roadway was included within the scheme. The Plaintiffs made no objection at the time to the scheme and, more particularly, to these aspects of the scheme. There was a considerable amount of pre-inquiry publication and public notice of the scheme and the inquiry into the scheme lasted six weeks. By Orders dated 22nd December 1999, the Minister for the Environment and Local Government made Orders approving the Environmental Impact Statement in respect of the Dublin Port Tunnel Motorway Scheme, the Dublin Port Tunnel Toll Scheme and the Dublin Port Tunnel Motorway Scheme 1998. The closure of Bond Road in the manner outlined above was therefore contemplated and is part of the scheme approved of by the Ministerial Orders. The Plaintiffs have therefore known for some years of the nature and extent of the scheme and the extent of the acquisition and the nature of the access to be provided.

5 Proceedings in the range indicated in the earlier part of this introduction were initiated by Plenary Summons which issued on 9th May 2003.

6 There were voluminous affidavits for this application, some of which were permitted to be filed and delivered during the actual course of the hearing to enable both parties to put all information they considered appropriate before the Court. The Plaintiffs have been in business for some thirty years and have at present a very large access point on Bond Road which permit the possibility of two articulated vehicles passing each other on the way in and out (with ease). The access to be provided is not as ample as that which exists at present on Bond Road. Furthermore, the access road to the new point of access for the Plaintiffs is used by other persons in not dissimilar types of business. The evidence indicates that the existing Tolka Quay Road is not very well managed from a traffic point of view, in that vehicles are parked in a somewhat haphazard fashion. This is not causing the Plaintiffs any disturbance at the moment as it is using the Bond Road entrance. However, if and when the time comes that they are obligated to use the Tolka Quay Road entrance, this matter may be of some importance. However, this is a matter that the Plaintiffs cannot control and is giving the Plaintiffs some considerable cause for concern in the event that the alternative access becomes its only access. The access intended to be provided by the Council is that provided for in the scheme. However, subsequent to the confirmation of the scheme by Ministerial Order, there were some informal efforts made to try and meet the desiderata of the Plaintiffs and a one-time engineer of the Plaintiffs' assigned to the scheme did open up the possibility of acquiring other additional lands not part of the scheme with a view to providing a more ample access to the Plaintiffs. Letters of 29/6/2000, 29/3/2001, 8/ 4/2002 and 26/7/2002 are in point in this regard.

7 This was the subject of negotiation and notwithstanding that the negotiations were without prejudice and on the basis of “subject to contract, contract denied”, documentation which passed between the Council and an adjoining landowner through its valuer was put before the Court. This correspondence 28 was dated April 2002. It is, however, clear from the documentation that it was, as I have indicated already, wholly conditional and on the basis that the chief valuer of the Council was prepared to recommend to his principals on certain terms and conditions set out in the letter. Nothing did become of the matter and the tentative arrangements made never did become a concluded contract. This evidence was sought to be relied upon by the Plaintiffs as indicative of an acknowledgment by the Council that the access provided for within the scheme was inadequate and, accordingly, did not meet the statutory requirements of the Roads Act1993. This was seriously disputed by Mr. Collins for the Council, who simply relied, as he was entitled to, on the scheme which was in fact the subject of the Ministerial Order.

8 Whatever hopes or aspirations the Plaintiffs had on securing a more efficacious access onto Tolka Quay Road than that provided for by the scheme were...