Kelly v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 19 June 2024
• Neutral Citation: [2024] IEHC 364
• Court: High Court
• Docket Number: [H.JR.2024.0000297]

Between

Áine Kelly

Applicant

and

An Bord Pleanala

Respondent

and

National Transport Authority

Notice Party

[2024] IEHC 364

[H.JR.2024.0000297]

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT ofHumphreys J.delivered on Wednesday the 19th day of June, 2024

“This is what I envisage for my future for the rest of my life. Again, remember that I have no front garden, and my front door opens directly onto the path where the bus stop will be situated. Never again being able to challenge anyone who is standing directly outside my front door, no matter what hour of the day or night it is; coming home from work in the dark, which in winter is the early evening, having unknown strangers standing outside my front door, without any means for me to challenge their presence; putting my key into my front door and opening the door with strangers standing beside me. If anyone wishes ill intent on me or my property, they won't have to break in; I will be opening the door for them. It is simply unacceptable for Aidan Gallagher and for the staff with the decision making powers in the NTA and An Bord Pleanála to be placing me and my neighbours in this situation, a situation, I hazard to guess, that they would not accept for a second if it affected their own homes and families, when all they need to do to prevent this is to make a minor adjustment to the plans to move the bus stop a short distance from its proposed location.” [Applicant's submission at the leave hearing, p. 21]

1 . The applicant challenges a board decision authorising the erection of a bus stop directly outside her front door, which opens directly onto the footpath with no garden, path or other buffer zone. The applicant's concerns were arguably swept aside in minimising language by the board and held to be outweighed by the importance of the scheme. The central issue is whether the applicant has shown substantial grounds to proceed with a challenge based on arguments related to disproportionality and lack of reasons.

Geographical context

2 . This leave application concerns the Clongriffin Scheme which is a public transport infrastructure project comprising 5.7 km of bus priority infrastructure and ancillary traffic management, together with 11.9 km of cycling infrastructure and facilities and the provision of new and refurbished pedestrian facilities and associated works including upgrading of junctions, reconfiguration of existing bus stops and public realm improvements and works, in the urban and suburban north of Dublin City between Clongriffin and the city centre.

3 . The contested part of the development occurs near the applicant's house in the Malahide Road area. On the inbound (city-bound) route the proposal is to remove two bus-stops in this area and add a new stop, directly outside the applicant's front door with no garden or other space acting as a buffer zone. On data minimisation principles, there is no particular need to identify the street or address more specifically.

Facts

4 . Changes to bus arrangements on the Malahide Road have been in train for some time. The applicant wrote to the Quality Bus Network design team as far back as 12th June 2006 expressing some concerns.

5 . Twelve years later, following the announcement of the Bus Connects strategy, she wrote to public representatives outlining her views on 12th June 2018.

6 . On 14th November 2018, the NTA launched a first round of non-statutory public consultation on the Emerging Preferred Route Option for the Clongriffin to City Centre Core Bus Corridor Scheme. Published drawings showed Existing Bus Stop 1220 (albeit relocated 15 m southwest) as that existing bus stop was not proposed for removal at that time. In error, Existing Bus Stop 1219 was omitted from the drawings. At that point, it was not proposed to place the Bus Stop at the location which is now proposed.

7 . The applicant is sceptical about the claim that the omission of existing bus-stops from the first and second consultations was really accidental error. But that complaint hasn't been developed evidentially.

8 . The applicant put forward a submission on 26th November 2018 (although for some reason the NTA don't have a record of this):

“26 November 2018 at 18:29 To: Project manager, Bus Connects (TDs and Councillors cc'ed). I am writing on behalf of myself and my neighbours at [the street concerned], Malahide Road, regarding the emerging preferred route for the Clongriffin to city centre bus route.

I have previously contacted you via my public representatives (cc'ed here), expressing my concern that any potential changes to the road layout would involve narrowing the footpath in front of our houses. Having viewed Map 15 of the proposed route, it appears that you are suggesting to take some of the footpath to widen the road in front of our houses.

As a first question, may I ask whether that is in fact the plan? I would appreciate clarification on whether or not you propose to remove any of the footpath in front of our homes, since it is not quite clear from the drawings.

I outline below my objections to any narrowing of the footpath in front of the houses at [the street concerned].

1. There are no gardens in front of our houses, hence our front doors open directly onto the footpath. Narrowing the footpath means that traffic on one of the busiest roads in the city will pass even closer to the front of our properties.

2. This poses a grave safety risk to pedestrians and residents. In our experience, cars have accidentally mounted the footpath on occasion. A truck mounted the path and demolished the front wall of my home when turning the corner from the Kilmore Road junction too sharply, when the house was occupied by the previous owner in the 1980s.

3. Many of the residents of the cottages are elderly people, some of whom have lived in their homes for many years. They have expressed to me their very great fear of having traffic brought closer to their homes.

4. Rear vehicular access to our properties is via a laneway barred by gates to which residents have keys. In order for us to park to the rear of our properties, we must temporarily park perpendicular to the road an open the gates manually. As it is, there is not enough room to park a standard sized car safely while opening the gates. Narrowing the path will mean leaving a sizeable part of the rear of the car blocking the bus lane, again posing a safety risk.

5. As it is, proximity of traffic generates much dirt and debris on the footpath, particularly in wet weather, that finds its way into our properties through doors and windows and affects the air quality — this would be much worse if the footpath is narrowed.

6. There is ample space at the other side of the road at St David's Wood to carry out the works there. This will not require purchase of land or inconvenience to anyone else, since the path is bordered by publicly accessible grassy areas that I assume are owned by Dublin City Council. I see from the maps that you propose creating a new boundary here in any case — may I suggest that all of the road widening makes use of this footpath, and that if necessary the footpath can be extended backwards into this grassy area?

A proposal to narrow the path was mooted in 2006. At that time, I wrote to Mr Ciaran de Burca, the project manager, outlining the concerns I expressed above. A decision was made not make significant changes to our path — I assume because the planners were convinced by my arguments about safety and welfare. I suggest that that should still be the case. The wording of that decision is below.

‘The Quality Bus Network Project Office has noted the objections raised by the residents of [the street concerned] in relation to proposals to reduce the width of the footpath outside their houses. The Quality Bus Network Project Office has prepared a revised layout for this section of the scheme which minimises the impact on the footpath on the east side of Malahide Road outside the [the street concerned]. The majority of the road widening will take place on the west side of Malahide Road between St. Davids Wood and Kilmore Road.’ I support in principle the Bus Connects project. As a daily Dublin Bus user I welcome any improvement to the safety and efficiency of the public transport network, but not at the expense of the safety or wellbeing of the residents of Dublin. I would hope that the general goodwill about the project is not marred by proposals that would diminish the quality of life of myself and my neighbours and our enjoyment of the homes that many of us have lived in for decades. If any proposal is made that will compromise the safety of my home or those of my neighbours, I will oppose it in the strongest possible terms.”

9 . This email wasn't formally exhibited although the opposing parties didn't strongly press any point about that. That can be rectified if the matter goes further.

10 . On 11th December 2018, the first Community Forum meeting for the Clongriffin to City Centre Core Bus Corridor took place at the Hilton Hotel, Malahide Road with approximately 20 people in attendance including the applicant.

11 . On 10th January 2019, a public information event was held in relation to the Clongriffin Scheme at the Hilton Hotel, Malahide Road where members of the public could drop in to view information about the Emerging Preferred Route and ask questions of the BusConnects Infrastructure team.

12 . The applicant copied her 2018 submission to public representatives by email on 21st February 2019.

13 . 29th March 2019 was the deadline for submissions for the First round of non-statutory public consultation on the Emerging Preferred Route Option for the Clongriffin Scheme.

14 . On 11th September 2019, a community forum for the Clongriffin to City Centre Core Bus Corridor took place in the Hilton Hotel, Malahide Road. There were approximately 15 in attendance including the applicant.

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