Peter Carvill and Mannix Flynn v Dublin City Council, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] IEHC 544
• Court: High Court
• Docket Number: [2021 No. 111 JR]

Between

Peter Carvill and Mannix Flynn

Applicants

and

Dublin City Council, Ireland and The Attorney General

Respondents

[2021] IEHC 544

[2021 No. 111 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Environmental Impact Assessment – Appropriate Assessment – Applicants seeking an order of certiorari quashing the decision of the first respondent to proceed with a cycleway trial – Whether the decision of the first respondent to proceed with the cycleway trial was unlawful, void and/or had no lawful effect

Facts: The first respondent, Dublin City Council, to achieve the objective of enabling more people to cycle, proposed the Strand Road cycleway trial. The applicants, Mr Carvill and Mr Flynn, applied to the High Court seeking certain reliefs by way of judicial review to halt the cycleway trial as proposed. The essential reliefs were: (1) an order of certiorari quashing the decision of the City Council to proceed with the cycleway trial; and (2) a declaration that the decision of the City Council to proceed with the cycleway trial was unlawful, void and/or had no lawful effect, insofar as it was in breach of the Environmental Impact Assessment Directive (Directive 2011/92/EU) and/or the principle of nemo iudex en sua causa and/or the Habitats Directive (Directive 92/43/EEC).

Held by Meenan J that both an Environmental Impact Assessment and an Appropriate Assessment was required for the proposed cycleway and that the screening reports commissioned by the City Council were fundamentally flawed. Meenan J held that it followed that if the cycleway was to proceed, the requirements of the Environmental Impact Assessment Directive and the Habitats Directive needed to be addressed and complied with.

Meenan J held that the applicants had succeeded in their application.

Application granted.

JUDGMENT of Mr. Justice Meenan delivered on the 30 ^th day of July, 2021

Introduction

1 . The effects of the COVID-19 pandemic have reached into almost every aspect of our working, social and family lives. This application concerns the impact which the pandemic has had and, possibly, will continue to have on our transport system.

2 . For many months following March 2020, levels of traffic on our streets and roads reduced dramatically. This presented the first named respondent (“the City Council”) with an opportunity to reshape transport policy for the future. With this in mind, the City Council published a document entitled: “Enabling the City to Return to Work Interim Mobility Intervention Programme for Dublin City (May 2020)”.

3 . This document, under the heading “Scope and Objectives”, states:-

“The goal of this programme, in essence, is to allow the city to function under the new arrangements arising from the COVID-19 Public Health Emergency, both in terms of providing space for safe movement plus business activities, and in accommodating the changed transport patterns.”

The document then sets out a number of “high-level aims” and continues:-

“These high-level aims have been translated into transport-specific objectives as follows:

• • To improve pedestrian safety through the provision of additional space for movement and enhanced pedestrian areas;

• • To enable more people to cycle by providing safer cycling facilities; …”

To achieve the objective of enabling more people to cycle, the City Council proposed the Strand Road cycleway trial.

4 . The applicants have brought these proceedings to seek certain reliefs by way of judicial review to halt the cycleway trial as presently proposed. It should be stated at the outset, lest there be any doubt about it, that the Court in determining this application is not concerned with policy matters, such as the appropriateness or otherwise of the aims and objectives of the transport policy of the City Council.

5 . The first named applicant is a retired Civil Servant who resides at Farney Park, Sandymount, Dublin 4. The second named applicant is an elected member of the City Council.

Strand Road Cycleway Trial (“the Cycleway Trial”)

6 . Strand Road is located in the Sandymount area of Dublin and runs between Merrion Gates and Beach Road/Sean Moore Road. Strand Road is mainly made up of residential dwellings on the west side of the road, with the Irish Sea on the east side. There are numerous roads off Strand Road.

7 . The cycleway trial is proposed to involve the following:-

• i. Provision of a two-way separated cycle track from Sean Moore Road to Merrion Gates;

• ii. The removal of the northbound traffic lane on Strand Road to provide for a one-way south bound traffic system to facilitate the proposed two-way cycle track;

• iii. The provision of bollards and orcas along the proposed cycle track; and

• iv. The installation of traffic signals equipped with Smart Micro technology to monitor cyclist numbers and vehicle classification.

8 . The effects of the cycleway trial are as follows:-

• i. Inbound city traffic along the Merrion Road intending to access the north side or certain areas of the south side would no longer be permitted to turn right at Merrion Gates and would have to continue along the Merrion Road to find available alternatives to turn right and head towards their destination. The National Transport Authority (“the NTA”) have calculated that this would increase the traffic on Merrion Road to the order of 114%. It is also the case that it would now be permitted to turn right at the junction of Strand Road and Merrion Road. It is not clear whether any increased traffic as a result of this new right hand turn on Merrion Road is part of the 114% increase referred to;

• ii. The traffic that would no longer be permitted to use Strand Road would have to use alternative roads. The NTA have calculated that this would lead to an increase of traffic on Park Avenue of 22%, Sandymount Road 22%, Serpentine Avenue 36% and Sandymount Avenue 63%. As against this there would be a reduction of traffic on Nutley Lane of 9%;

• iii. Making Strand Road one way would have an effect on local access for many homes and businesses located on and off Strand Road. There are numerous such residential roads which would obviously be affected. This was clearly understood by the City Council. In an affidavit by Mr. Brendan O'Brien, Head of Technical Services, Environment and Transportation for the City Council, it is stated:-

  “… The reduction in traffic on Strand Road and the provision of a two-way safe protected cycle route as part of the Cycle Trial means that residences and business are not able to travel in a Northbound direction, rather they do so by other modes of transport, namely walking, cycling or other modes of transport allowed on a cycleway. …”

  This would seem to suggest that residents and other persons in the affected roads should they wish to go to Dublin Airport would have to either walk or cycle. I am sure that this is not what was intended by the City Council but it does seem to show a level of indifference to those affected; and

• iv. As against the above, there would be a dedicated two-way cycle lane separated from the road. This would be to the benefit of those who wished to cycle.

9 . The works involved in establishing the cycleway are set out in detail in a document entitled: “Order of the Executive Manager (Acting) (ET/178/2021)”. These works are, for the most part, the installation of road signage, changing road markings and moving bus stops. Also involved is the removal of some six mini roundabouts on Strand Road. The provision of a new right hand turn from Strand Road to Merrion Road would involve road excavation in the removal of a concrete traffic island. There would also be some ducting work for cabling for traffic signals.

Public consultation

10 . The affidavit of Mr. O'Brien sets out, in some detail, various steps that the City Council took to consult the public on the cycleway trial. He makes the point that such consultation was “non-statutory”. It is not necessary to outline the various steps that were taken in the public consultation process in any detail since the primary complaint made by the applicants concerns the provisions of the EIA Directive and the Habitats Directive, which have not involved public consultation.

11 . The first named applicant is involved in a local residential organisation of those living on Serpentine Avenue, Tritonville Road, Claremont and other adjoining roads (STC Community Group). This Community Group proposed to the City Council an alternative cycleway trial. This proposal, according to STC, would avoid what it considered to be the adverse impacts on traffic movement in the area of Sandymount which would result from the cycleway trial proposed by the City Council.

12 . The cycleway trial was put before members of the City Council pursuant to s. 138 of the Local Government Act, 2001 (“the Act of 2001”). However, no vote was taken under s. 139 of the said Act.

Legal proceedings

13 . Despite the opposition of STC and others to the cycleway trial, the City Council was not for turning so it was inevitable that legal proceedings would ensue. Matters commenced with a letter from the Solicitor instructed by the applicants of 23 November 2020. It took some four weeks for the Acting Law Agent of the City Council to reply, from which I infer that the replying letter was a fully considered response to which I can attach weight.

14 . The Solicitor's letter from the applicants set out some seven questions concerning the cycleway trial, and the City Council responded to each. I set out below certain of the questions and the corresponding answers:-

• 1. What specific statutory authority is [the City Council] relying on to implement its proposal. Insofar as it is relying on either the Planning and Developments Act and/or the Road Traffic Acts? Please specify the relevant sections relied upon.

  Answer:

  The proposal involves local authority development,...