McNicholas & anor -v- Mayo County Council & anor, [2017] IESC 37 (2017)

Docket Number:476/2009 & 42/2010
Party Name:McNicholas & anor, Mayo County Council & anor
 
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THE SUPREME COURT

[Appeal No. 476/2009]

[Appeal No. 42/2010]

Clarke J.

Laffoy J.

Dunne J.

BETWEEN

PETER McNICHOLAS AND NANCY McNICHOLAS

PLAINTIFFS/APPELLANTS

AND

MAYO COUNTY COUNCIL AND SIAC WILLS JV LIMITED

DEFENDANTS/RESPONDENTS

Judgment of Ms. Justice Dunne delivered on the 1st day of June 2017

No one who has travelled the roads of this country over the last twenty years or more can but have noticed the vast improvement in the road network throughout the country. There has been a sustained campaign of road building and improvements with the result that motorways now connect major routes such as Dublin to Cork, Dublin to Galway, Dublin to Limerick and Dublin to Belfast. Apart from the development of the motorway network, road improvements have taken place throughout the country at both a national and regional level and bypasses have been built around towns that used to be major bottlenecks on routes throughout the country. While many of us will laud the work that has taken place to bring about such an improvement, for some, the reaction to such improvements has not been so positive. Proponents of the improvements will point to the reduced journey times brought about by such improvements and to the road safety benefits from such developments. However creating a new road or redeveloping an existing road causes disruption, disturbance, inconvenience, heartache and headaches for those affected by such developments. One only has to pause for a moment to think of the concern that will be felt by those affected by the proposed route of any new road or road widening development. For farmers, whose land is acquired for the purpose of such a development, perhaps even dividing a farm holding, the concerns will be obvious. For others the prospect of a road development being undertaken adjacent to a family home will necessarily be a source of concern and, indeed, even unhappiness. In order to alleviate some of those concerns, there will be a public consultation process as to the proposal concerned, and for those who have some of their land acquired for the purpose of any such road development, an entitlement to compensation. Planning and environmental law requirements have also to be complied with. There are a number of measures or remedies available to those affected or concerned by such developments.

One such development was the Charlestown bypass on the N5 roadway (hereinafter referred to as the “Charlestown N5 Bypass”). The Charlestown N5 Bypass forms part of the N5 National Primary route between Westport and Longford. The project comprised of the design, execution and completion of approximately 18.2 km of single carriageway and 5 km of single carriageway slip roads, side roads and link roads. The plaintiffs/appellants (for ease of reference who will be referred to hereinafter as “Mr. McNicholas”) are the owners of a residential property at Cuilmore, Swinford, County Mayo. Their property is adjacent to the N5 Charlestown bypass and part of their lands was acquired by way of a compulsory purchase order for the purpose of constructing the road. These proceedings arise out of the construction of the road and how it affects their property and in particular the means of access to their property.

Background

Following the proposal for the Charlestown N5 Bypass, it was necessary for the first named defendant/respondent (hereinafter referred to as “Mayo County Council” or “the Council”) to compulsorily acquire property along the route of the proposed bypass and to obtain approval for the proposed road development. An application was made for a compulsory purchase order in respect of some of the McNicholas land in March 2004. Approval was also sought by Mayo County Council at that stage from An Bord Pleanála in relation to the proposed bypass.

As explained in the affidavit of Tony McNulty sworn herein on behalf of Mayo County Council on the 6th September, 2007, the compulsory purchase order made by the Council included the acquisition of six distinct portions of land owned by the McNicholas family. He explained that as required by statute, the CPO passed to An Bord Pleanála for confirmation. The Board conducted a three day oral hearing between the 17th and 19th August, 2004. Mr. McNicholas was represented at the oral hearing and raised a number of objections to the route. At the oral hearing a proposal was made for a modification of the proposals submitted to An Bord Pleanála requesting that an overbridge rather than an underbridge be constructed at a point close to the McNicholas property. The proposed modification was set out on Drawing No. 401-1A. The CPO was confirmed by An Bord Pleanála and approval was given under s. 51 of the Roads Act 1993 (“the Act of 1993”) on the 10th November, 2004 for the proposed road development with the modifications relating to the overbridge (hereinafter referred to as “the decision”) and this was notified to all land owners affected by the proposal including the McNicholas family on the 29th November, 2004 and published on the 1st December, 2004. For completeness, I wish to refer to the decision of An Bord Pleanála which recites the following:

“PROPOSED ROAD DEVELOPMENT: Provision of a new road from the end of the Swinford Bypass in Cloonara townland running to the south of the existing N5, bypassing Charlestown and Carracastle and rejoining the existing N5 in Currinah townland in County Roscommon with associated junction. Otherwise referred to as the N5 Charlestown Bypass Scheme.

DECISION

Approve the above proposed road development in accordance with the said documentation based on the reasons and considerations under and subject to the modifications set out below.”

As is usual reasons and considerations were given in respect of the decision. The decision of An Bord Pleanála then went on to refer to modifications. Of issue in this case was Modification No. 1 which was as follows:

“The proposal for an underbridge on local road L-5334-0, closure of local road

L-13032-0 and link roads connecting L-5334-0 with L-13032-0 on either side of the N5 shall be modified by providing an overbridge on local road L-13032-0, closing local road L-5334-0 and providing link roads connecting L-13032-0 with L-5334-0 as shown on drawings No. 401-1A and 401-2A submitted to the oral hearing on 19th August 2004 by Mayo County Council.

Reason: to reduce the community severance impact of the proposed road development.”

The modification of the proposal providing for an overbridge as opposed to an underbridge has assumed a large degree of importance in the course of the arguments on behalf of Mr. McNicholas in the course of the appeal to this Court for reasons which will become apparent in the course of this judgment. The arguments of Mr. McNicholas centre on this modification to contend that the planning permission granted by An Bord Pleanála was not valid. I will return to this issue in the course of the judgment.

Following the decision of An Bord Pleanála, the concerns of Mr. McNicholas and his family centred on the access to be provided from their residence to the proposed bypass. This is reflected in the correspondence that took place following the decision to approve the proposed bypass scheme between Mr.McNicholas, Mayo County Council and the second named defendant/respondent, SIAC Wills JV Limited (hereinafter referred to as “SIAC”), the contractor engaged to build the proposed road scheme, in relation to the access road to be provided to the McNicholas property. In the course of those discussions and correspondence, various proposals were made to Mr. McNicholas with a view to resolving his concerns. Indeed, as part of their attempts to deal with the matter, Mayo County Council and SIAC went so far as to buy additional land adjacent to the McNicholas property from a family called Lynskey (hereinafter referred to as “the Lynskey Lands”) and put in an application for planning permission to revise the access road to the McNicholas property. Despite the fact that this was being done to try and alleviate the concerns of Mr. McNicholas, for some reason, Mr. McNicholas was not satisfied with the proposal contained in respect of the Lynskey Lands, for which planning permission was obtained on the 24th February, 2007. Mr. McNicholas appealed that decision to An Bord Pleanála but ultimately in June 2007, Mr. McNicholas withdrew his appeal in respect of the planning permission. Despite this, there was no resolution of the matters between Mr. McNicholas and Mayo County Council and the matter became urgent in that the deadline for SIAC to complete the contract to build the approved road was in December 2007. Ultimately, having failed to reach agreement with Mr. McNicholas in relation to the proposed access road, Mayo County Council and SIAC went ahead and completed the road in accordance with Drawing 401-1A depicting the modification to the plans as originally submitted to An Bord Pleanála.

The pleadings

The plenary summons herein was issued on the 17th August, 2007 together with a notice of motion in which an interlocutory injunction was sought restraining the defendants from constructing an alternative access to the plaintiffs’ property save in a form which accorded to the terms and specifications set out in planning permission P06/3897 either adapted to permit part of the road cross a portion of the plantiffs’ lands or in the alternative in accordance with the planning permission drawings and specifications. The planning permission referred to in that notice of motion (P06/3897) related to the planning permission in respect of the revised access road over the Lynskey Lands. Mr. McNicholas was not successful in obtaining injunctive relief. The statement of claim herein was delivered on the 5th September, 2007 in which the following reliefs were sought:

“(1). A declaration that the Defendants and each of them are obliged to provide to the Plaintiffs suitable alternative access to their property in a form...

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