McNicholas v Mayo County Council & SIAC Wills JV Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian J. McGovern |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] IEHC 379 |
| Docket Number | [No. 6160 P/2007] |
| Court | High Court |
| Date | 31 July 2009 |
[2009] IEHC 379
THE HIGH COURT
BETWEEN
AND
ROADS ACT 1993 S49(4)
ROADS ACT 1993 S51
HOUSING ACT 1966 S76
HOUSING ACT 1966 SCHED 3
LOCAL GOVT (NO 2) ACT 1960 S10
HOUSING ACT 1966 S86
ROADS ACT 1993 S52
ROADS ACT 1993 S52(2)
LOCAL GOVERNMENT
Compulsory purchase
Acquisition of lands - Constructing bypass - Alleged unsuitability of alternative means of access - Declaratory relief - Injunctive relief - Standard of access - Reasonable or suitable alternative means of access - Whether suitable alternative means of access provided - Evidence - Access road built in accordance with planning approval for scheme - Unsuitability of access road - Failure to challenge scheme - Failure to properly engage with defendants - Pending arbitration - Appropriateness of dealing with shortcomings of access within arbitration - Roads Act 1993 (No 14), ss 49 and 52 - Relief refused (2007/6160P - McGovern J - 31/7/2009) [2009] IEHC 379
McNicholas v Mayo County Council
The plaintiffs are the owners of a residential property at Culmore, Swinford, County Mayo. The property is adjacent to the N5 Charlestown Bypass, and for the purpose of constructing that road, part of the plaintiffs' lands was acquired by way of a Compulsory Purchase Order ("the CPO"). The Bypass cuts across what was formerly an access road to the plaintiffs' dwelling. The plaintiffs have been provided with an alternative means of access which they claim is unsuitable.
In these proceedings, they seek the following relief:
(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 which accords to the terms and specifications set out in planning permission either adapted to permit part of the road cross a portion of the plaintiffs' lands or, in the alternative, in accordance with the planning permission drawings and specifications (including those to be agreed).
(2) An injunction restraining the defendants, or either of them, whether servants or agents, or howsoever, from constructing an alternative access to the plaintiffs' property save in accordance with the declaration at (1).
(3) A declaration that the 2004 Access Proposal does not constitute suitable alternative access to the plaintiffs' lands as required by the Roads Act.
(4) An order directing the defendants to meet and agree outstanding specifications and to construct alternative access to the plaintiffs' property in accordance with the declaration at (1).
(5) An order that the defendants remove any works which may have been effected to deliver an access save in accordance with declaration at (1).
3. The plaintiffs contend that the standard of access that is required to be provided is"reasonable access or suitable alternative means of access". They refer, in particular, to s. 49(4) of the Roads Act 1993, as amended. Other legislative provisions relied on by the plaintiffs provide that the Road Authority shall not remove, alter or restrict a means of access until an alternative means of access to or from a public road has been provided. I will deal with the legislative procedures in more detail later in this judgment.
4. While the first named defendant does not accept that the plaintiffs' interpretation of the legislation is correct, their legal submissions proceed on the basis of an assumption that the Local Authority was under a duty to construct a suitable alternative access. But they say that the plaintiffs have failed to adduce any evidence to support their assertion that the Council have failed in their duty. I am satisfied that the duty imposed on the first named defendant was to provide a suitable alternative means of access. The issue that arises in this case is whether or not that was done.
5. The approval for the Charlestown Bypass Scheme was granted on 10th November, 2004, by An Bord Pleanála under s. 51 of the Roads Act 1993. This section deals with Road Developments. In March 2004, an application was made for a Compulsory Purchase Order and approved on 10th November, 2004, pursuant to s. 76 of the Third Schedule to the Housing Act 1966, as extended by s. 10 of the Local Government (No. 2) Act 1960 (as substituted by s. 86 of the Housing Act 1966). In the application for approval under s. 51 of the Roads Act 1993, the Bypass was described as a "proposed road development … known as the N5 Charlestown Bypass Scheme". In the confirmation of the CPO, it was described as "road construction and improvement".
6. Section 52 of the Roads Act1993, is entitled 'Acquisition of Land and Implementation of Scheme'. The section authorises a Local Authority to compulsorily acquire any land or any right in relation to land and:
"… for that purpose, the Scheme shall have the same effect as if it were a compulsory purchase order in respect of that land or any rights in relation to land which, consequent on a decision made by the road authority, pursuant to s. 10(1) of the Local Government (No. 2) Act 1960 (as inserted by s. 86 of the Housing Act, 1966) had been duly made and confirmed".
The plaintiffs argue that property rights in both instances are affected and treated similarly and to the same extent.
7. Section 49(4) of the Roads Act1993, as amended, provides that An Bord Pleanála may, in any case where it considers it reasonable to do so, "direct the road authority to provide for any person who, by reason of the implementation of a motorway, busway or protected road scheme -
(a) is permanently deprived of reasonable access to or from his property or to or from one part of his property to another - a suitable alternative means of access,
(b) is, during construction, temporarily deprived of reasonable access to or from his property or to or from one part of his property to another - a temporary means of access during the course of such construction, and the road authority shall comply with any such direction."
8. Section 52 of the Roads Act1993, provides that in any case where the closing or restricting of an existing means of direct access under sub-section (2), results in the owner of any land being deprived of the only means of access from that land to any public road, or to that land from a public road, the road authority shall not close or restrict such means of access until an alternative means of access to or from the public road has been provided.
9. The Bypass cuts across the original driveway up to the plaintiffs' home. Originally, it was proposed to have an underpass to enable people in the locality to cross from one side of the bypass to the other. At a public hearing in August 2004, a design change to the road was requested by the Inspector for discussion purposes. This involved an overpass in place of the underpass. It was felt that this would address, in a more suitable way, the division of the community by the new roadway. The overpass is approximately 300m, from the plaintiffs' dwelling house. On the south side of the overpass, there is a local road from which the new access to the plaintiffs' premises has been constructed. The new access runs parallel to the Bypass on the south side and has a downhill gradient. Between the access road and the Bypass, is a block wall approximately 2m. in height, and this, in turn, runs along the top of an embankment which slopes down to the Bypass.
10. I have seen photographs of the new access road. From a functional point of view, it appears to be adequate. In the photographs, the quality of the surface appears to be somewhat rough and unfinished, particularly at the edges. The block wall, although it has been properly capped, has a fairly crude finish. Indeed, in an email of 24th August, 2006, Mr. Richard Glancy of Mayo County Council, admitted that:
"A block wall 1.5m high would be visually intrusive on the landscape, especially at that section of the access through the additional lands acquired from Mr. Lynskey."
The evidence of the County Council was that it is a standard type of wall used alongside major routes. No evidence was given to the contrary. For the purpose of this case, it has to be considered in the context that it is some distance removed from the dwelling house. There was evidence given that further landscaping was envisaged along the boundary, and a stone clad entrance is to be constructed. What appears on the photographs is not the finished road. Insofar as the finish to the roadway and wall to date is not aesthetically pleasing, these are matters that will be ameliorated in due course by landscaping and other entrance works, and in any event, this issue is not pleaded as part of the plaintiffs' case.
11. One of the major complaints made by the plaintiffs is that the access road is so steep and so close to the edge of the Bypass that it cannot be used safely by the first named plaintiff because he suffers from vertigo.
12. The evidence establishes that the road is no more steep than part of the original access at certain places along its route. Furthermore, on an objective view of the photographs, it does not appear to be particularly steep. The plaintiff undoubtedly suffers from vertigo and agreed medical reports were produced which establish that. I also heard evidence from his General Practitioner confirming the fact. The first named plaintiff's General Practitioner saw him at home when he got dizzy spells. Clearly, this had nothing to do with driving a motorcar. But the first named plaintiff gave evidence that he suffers vertigo when...
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...Act, 1993. The action was heard over five days in the High Court and judgment was delivered on the 31st July, 2009 by McGovern J. ( [2009] I.E.H.C. 379). 4 The said judgment noted that the appellants had never challenged the bypass scheme and CPO which had been approved by An Bord Pleanála.......
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McNicholas v Mayo County Council
...the High Court 11 Following a five day hearing in the High Court, before McGovern J., judgment was delivered on the 31st July, 2009 ( [2009] I.E.H.C. 379). The principal issue before the High Court was the contention on the part of Mr. McNicholas that the local authority was under an oblig......