Lissan Coal Company [Ireland] Ltd and Anor v an Bord Pleanála and Ors

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 30 April 2026
• Neutral Citation: [2026] IEHC 255
• Docket Number: Record No. 2024/1052 JR

In the Matter of Sections 50, 50A and 50B of the Planning and Development Act 2000, As Amended

Between:

Lissan Coal Company (Ireland) Limited

and

LCC Properties and Investments (Ireland) Limited

Applicants

and

An Bord Pleanála, The National Transport Authority, Ireland & The Attorney General

Respondents

[2026] IEHC 255

Record No. 2024/1052 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

JUDICIAL REVIEW

Judicial review – Oral hearing – Adequacy of reasons – Applicants seeking judicial review – Whether the reasons given for not holding an oral hearing were inadequate

Facts: The applicants, Lissan Coal Company (Ireland) Ltd (Lissan) and LCC Properties and Investments (Ireland) Ltd (LCC), sought to quash, in whole or in part, the impugned decisions of the first respondent, An Coimisiún Pleanála (the Commission), to: approve, pursuant to s. 51 of the Roads Act 1993 and ss. 215 and 217C(2) of the Planning and Development Act 2000, the Blanchardstown to City Centre Core Bus Corridor Scheme (the Scheme); confirm, pursuant to s. 76 of the Housing Act 1966 and ss. 214 and 217C(1) of the 2000 Act, the Bus Connects Blanchardstown to City Centre Core Bus Corridor Scheme Compulsory Purchase Order 2022 (the CPO). Both the Scheme and CPO had been submitted to the Commission, for approval and confirmation, by the second respondent the National Transport Authority (the NTA). In addition or alternatively, Lissan sought the following reliefs: a declaration that the statutory provisions on the basis of which the CPO was confirmed and the s. 51 approval granted are invalid as repugnant to Articles 40.3 and 43 of the Constitution and/or contrary to Article 1 of the First Protocol of the European Convention on Human Rights; a declaration that the defence of statutory authority in the law of public nuisance or otherwise is unconstitutional in so far as it precludes, or does not provide for, an exception which would allow for the recovery of compensation in respect of the reduction in the value of LCC’s land, and/or the substantial loss to or likely closure of LCC’s business, at “GoService”, Old Cabra Road, Cabra West, Dublin 7, in the circumstances; a declaration that the NTA may not interfere with and/or restrict any public right of way along Old Cabra Road and/or at such other locations where the s. 51 approval proposes such interference and/or restriction, other than those referred to in Part III (Section B) of the Schedule to the CPO.

Lissan’s second amended statement of grounds deleted grounds 1 and 2. Grounds 3 to 8 inclusive remained live. Core Grounds 3 to 8 were as follows: (3) the CPO did not authorise interference with public right of way on Old Cabra Road; (4) the CPO confirmation was in breach of fair procedures; (5) the CPO was an unconstitutional unjust attack on property rights; (6) the s. 51 approval was invalidated by material error of fact and/or law as the Commission adopted the inspector's report which concluded that the filling station “can still be accessed and maintain operations albeit not as conveniently as at present"; (7) the impugned decisions were invalid as the Commission’s reasons for not holding an oral hearing were irrational insofar as the Commission concluded that the documents before it sufficed for a full and proper assessment of the applications; (8) the statutory bases for the impugned decisions and those provisions on which the respondents relied in respect of same were unconstitutional.

Held by the High Court (Holland J) that all grounds of challenge were dismissed save ground 6 and also ground 7 as to the possibility of a declaration of the inadequacy of the reasons given for not holding an oral hearing. On Ground 6, Holland J quashed the impugned decision.

Relief granted in part.

JUDGMENT OF Mr Justice David Holland DELIVERED 30 APRIL 2026

CONTENTS

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 30 April 2026	1
RELIEFS SOUGHT	4
INTRODUCTION, FACTS & LISSAN'S RISK DECISION	5
Pre-CPO/Scheme – from November 2017	7
Figure 1 – “Map 28 Emerging Preferred Route” — November 2018 — Extract	9
Lissan's Risk Decision	11
NTA e-mail of 8 March 2019 and thereafter	14
Development Potential if not a Filling Station	18
S.51 Approval Application June 2022, Scheme Description & EIAR	18
Figure 2 – Scheme Map 29 — Extract	19
EIAR on Impact on Filling Station	20
CPO & Lists of Public Rights of Way to be Extinguished, Restricted or Interfered with	21
S.51 Process — Lissan Submission August 2022, NTA Reply January 2023 & Lissan Reply July 2023	23
INSPECTOR'S REPORTS & IMPUGNED DECISIONS	25
Inspector on Lissan Objection & Observation Thereon	28
Impugned Decisions	30
OVERVIEW OF LISSAN'S COMPLAINT	30
LIVE CORE GROUNDS	32
CG3 – CPO Does Not Authorize Interference with Public Right Of Way on Old Cabra Road	32
CG4 — CPO Confirmation in Breach of Fair Procedures	33
CG5 – CPO an Unconstitutional Unjust Attack on Property Rights	33
CG6 — S.51 Approval – Material Error: Filling Station Could Continue in Business	33
CG7 – No Oral Hearing	34
CG8 – Legislation Unconstitutional	34
PRELIMINARY ISSUES	34
NTA's Position — Standing & Evidential Matters	34
Commission's Position — Evidential Matters	35
Lissan's position — Standing & Evidential Matters	35
Preliminary Issues — Decision	36
LEGISLATIVE CONTEXT & COMMENTARY THEREON	37
National Transport Authority & Public Transport Infrastructure	37
Road Traffic Legislation	38
Proposed Road Development – Approval & EIA — Roads Act 1993	38
Terminology — “Proposed Road Development”/“Scheme”	38
S.51 Approval & EIA	39
CPOs – Making, Form, Confirmation, Oral Hearings & Effects	40
Public Rights of Way – Extinguishment, Restriction & Interference	41
Form & Content of CPOs – Restrictions of & Interferences with Public Rights of Way	42
S.213(2)(a) PDA 2000 – Does it Encompass Restriction of or Interference with a Public Right of Way such that a CPO must List it?	45
Conclusion – S.213(2)(a) PDA 2000 Does Not Require that a CPO List Restrictions to & Interferences with Public Rights of Way — No Lands are to be Acquired From Lissan – Ground 3	49
No Disadvantage to Lissan	49
CPOs – Compensation, Injurious Affection, S.68 of the 1845 Act, & McCarthy/Wildtree Principles	50
McCarthy/Wildtree Principles	53
Moto Hospitality	57
Timing of s.68 Compensation Claim	58
Assumption of no Statutory Compensation, Failure to List in CPO & Whether to Decide Constitutional Issues	58
Alleged Inability to Claim Compensation by Reason of Failure to List in CPO or Serve Notice To Treat – Decision	60
GROUND 5 – UNJUST ATTACK ON CONSTITUTIONAL & ECHR PROPERTY RIGHTS	62
Ground 5 & Lissan's Position	62
G5 – Opposing Positions	63
G5 — Introduction & Overall Significance Of Constitutional Issues	65
G5 — Frontager's Private Right Of Access To Highway & Public Right Of Passage On Highway	65
Interferences with Frontager's Rights Without Compensation	67
G5 — Public Nuisance	70
General	70
Public & Private Nuisance	70
Particular Damage in Public Nuisance on the Highway — Loss of Custom/Passing Trade – Moto, Wilkes, Gravesham, Colour Quest & Vasiliou	72
Will Lissan suffer Special Damage sounding in Public Nuisance?	76
A Philosophical Difference – Whether Costs should be Internalised?	76
Do Bus Gates Obstruct the Highway within the Meaning of Public Nuisance?	76
Statutory Authority – Introduction	77
Nature of Statutory Authority of Public Nuisance – Smyth v RPA	79
G5 — Constitutional & ECHR Property Rights	83
Bunreacht na hÉireann, Articles 40.3.1 & 43	83
Earlier Cases, ESB v Good (2025) & Jones (2024)	84
Application of Law to Lissan's Case	98
ECHR	101
Interferences with Frontager's Rights Without Compensation	103
G5 — Livelihood	103
G5 — Unjust Attack on Constitutional Rights — Conclusion	105
GROUNDS 5 & 8 — CONCLUSION	105
GROUND 7 – FAILURE TO HOLD ORAL HEARING	106
G7 — Legislation	107
G7 — Facts	107
G7 – Lissan's Position	108
G7 — Opposition	109
G7 — Discussion & Decision	110
GROUND 3 – CPO FAILS TO LIST BUS GATES' INTERFERENCE WITH PUBLIC RIGHT OF WAY	115
G3 — Lissan's Position	116
G3 — Opposition	117
G3 — Discussion/Decision	117
GROUND 4 – CPO FAILS TO PROVIDE FOR INTERFERENCE WITH OR RESTRICTION OF PUBLIC RIGHT OF WAY	119
G4 — Lissan's Position	119
G4 – Decision	119
GROUND 6 – S.51 APPROVAL – BUSINESS VIABILITY IMPACTS	120
Particulars	121
G6 – Lissan's Position	121
G6 – Commission's Position	122
G6 – NTA's position	123
G6 – Discussion & Decision	124
Objectivity & Function of EIA	124
Sensitive Receptors	125
Facts & Commentary Thereon	127
Analysis	131
Environmental Effect? – Leth — & Significance of Effect	135
Planning Consideration?	139
OVERALL CONCLUSION & OBSERVATIONS ON REMEDY	140

RELIEFS SOUGHT 1

1 The Applicants (“Lissan” and “LCC” — I will, in what follows, generally refer to “Lissan” or “the Applicants” as encompassing both Lissan and LCC save where the context suggests otherwise) in judicial review seek to quash, in whole or in part, the “Impugned Decisions” of the First Respondent (“the Commission” 2) made on 21 June 2024 to,

Both the Scheme and CPO had been submitted to the Commission, for approval and confirmation respectively, by the Second Respondent (“the NTA”).

• • Approve, pursuant to s.51 of the Roads Act 1993, 3 and ss.215 and 217C(2) PDA 2000, 4 the Blanchardstown to City Centre Core Bus Corridor Scheme (“the s.51 Approval” 5 and “the Scheme”).

• • Confirm, pursuant to s.76 of the Housing...