Lynskey v Mayo County Council and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 17 April 2023
• Neutral Citation: [2024] IECA 23
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2022/251

Between/

Alan Lynskey

Appellant

and

Mayo County Council

Respondent

and

Frescobol Holdings Ltd

Notice Party

[2024] IECA 23

Costello J.

Pilkington J.

Butler J.

Court of Appeal Record Number: 2022/251

High Court Record Number: 2021/987 JR

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT ( ex tempore) of Ms. Justice Butler delivered on 17 ^th day of April 2023

1 . This is the appellant's appeal against a decision of Bolger J. dated 17 October 2022 granting him the entire of the relief he sought in judicial review proceedings against a decision of Mayo County Council made on 1 September 2021. That decision is recorded in a minute and purports to declare the roads in phase 1 of the Rath Dubh housing estate in Swinford, County Mayo to be public roads pursuant to s.11 of the Roads Act 1993. The circumstances in which an applicant is entirely successful in judicial review proceedings and yet appeals that decision are unusual to say the least.

2 . At the heart of this appeal is the fact that the trial judge made her order based on grounds E5, E6 and E19 of the statement of grounds whereas the appellant believes she should have also made her order on some or all of the other grounds pleaded by him. To understand how the High Court came to make the decision in that form, it is necessary to appreciate the background to these proceedings.

3 . The appellant is the owner of the common areas in phase 1 of the Rath Dubh estate which are contained in Folio 45885 having purchased the same from the developer of that estate, Balford Construction. The notice party is the owner of what is described as phase 2 of the Rath Dubh estate. There is clearly a dispute between the appellant and the notice party in relation to the entitlement of the occupants of phase 2 to use a roadway passing over phase 1 to access the public road. That is a private law matter which is not capable of resolution by way of judicial review and is not the subject matter of this appeal nor of this decision.

4 . On 23 March 2021, Mayo County Council gave notice of its intention to declare the roads and footpaths in phase 1 public roads under s.11 of the Roads Act 1993. A period was allowed for the public to make submissions, which period expired on 7 May2021 The appellant made a detailed submission on 6 May 1991 in which he pointed out that he was the owner of the Folio in which the roads the subject of the proposed declaration are contained, but that neither he or his predecessor-in-title had dedicated them for public use. He also pointed to previous attempts by the residents of phase 1 to have the roads taken in charge and to the interests of the notice party in securing the right of access to phase 2 over the roads in question. The fundamental aspect of his submission was that a public right of way must exist before a road can be taken in charge.

5 . An engineer on behalf of the council prepared a report in the form of a memorandum to the councillors because the making of such a declaration is a reserved function. That report is dated the 26 August 2021. The appellant complains that his submission is misrepresented in this report, that the report does not consider whether the road was of general public utility and that it proceeds on the basis of erroneous legal advice to the effect that Mayo County Council was under statutory obligation to take the development in charge under s.180 of the Planning and Development Act once the majority of owners of the houses within the development had requested that this be done

6 . At a meeting of Mayo County Council held on 1 September 2021 that report was presented to the elected members following which the counsellors voted in favour of a motion. The text of the motion is that “ an order be made to declare roads on attached schedule to be public roads in accordance with s.11 of the Roads Act 1993 as amended”. Thereafter, on 22 November 2021, the appellant instituted judicial review proceedings by filing a statement of grounds. In that statement of grounds, he sought a single substantive relief at para. D1 and I quote:

“An Order of Certiorari by way of application for judicial review quashing the decision of the Respondents to make an order to declare the roads and footpaths in the housing estate known as Rath Dubh (phase 1) in the townland of Rathscanlan, Swinford, County Mayo to be Public Roads in accordance with Section 11 of the Road Acts 1993 as amended which decision was made on the 1 September 2021.”

Thereafter 17 grounds were set out at section E of the statement of grounds upon which this relief is sought, and I will return to these in due course.

7 . The application for leave to apply for judicial review was moved on an ex parte basis by the appellant before Meenan J. on 17 January 2022. Rather than grant leave at that stage, Meenan J. acceded to a request from the notice party to be joined as a notice party and directed that the respondent and the notice party be put on notice of the application. He directed the appellant to serve a notice of motion seeking leave to apply for judicial review to be made returnable for 22 March 2022. At this point some confusion appears to have arisen because rather than serving a notice of motion seeking leave to apply for judicial review as directed by Meenan J., the appellant served a notice of motion seeking the substantive relief of certiorari.

8 . On 19 May 2021 at a hearing before Meenan J., counsel for Mayo County Council indicated that the Council was not opposing the application for judicial review and would concede certiorari of the decision in the terms expressed at para. D1 of the statement of grounds and on the grounds E5, E6 and E19. It is not entirely clear whether there was prior communication of this but there was certainly subsequent communication between the parties in relation to the form of this order. The suggestion made by Mayo County Council was not acceptable to the appellant. Consequently, Meenan J. assigned a hearing date pointing out to the appellant the costs consequences of proceeding with his application for judicial review at a point in time where the respondent had already conceded it.

9 . The matter then came before Bolger J. for hearing on 17 October 2022. She stated in her judgment, and I quote:

“Mr. Lynskey sought an Order for Certiorari on the grounds set out at paras. 1 to 21 at para. E. Some of these grounds relate to legal public law obligations...