THE SUPREME COURT
[Appeal No. 476/2009]
[Appeal No. 42/2010]
Clarke J.
Laffoy J.
Dunne J.
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:
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 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 Defendants (sic) 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, by their servants or agents, or howsoever, from constructing an alternative access to the Plaintiffs (sic) 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 (sic) 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 have been affected to deliver an access save in accordance with declaration at (1).”
Further and other relief was also sought. It would appear that the reference to the 2004 access proposal is a reference to Drawing No. 401-1A. For completeness I should refer to paragraph 9 of the statement of claim as Mr. McNicholas relied on the first sentence of paragraph 9 in the course of the appeal to this Court for the purpose of contending that the original permission granted by An Bord Pleanála in relation to the construction of the Charlestown bypass was not valid. Paragraph 9 stated as follows:
“The Defendants are purporting to construct an access that differs from that as promised. This alternative access is not a suitable alternative access as required by law. The conduct of the Defendants in proceeding to construct an access outside the terms on which the Planning permission appeal was withdrawn, following the commencement of these proceedings, are actions directly contrary to the position agreed with or represented to the Plaintiffs and in the fact of, knowledge of the Plaintiffs’ claim and full particulars of the basis of the [Plaintiffs’] claim. The Plaintiffs contend that the Defendants cannot by their own acts and or omissions avoid their obligation to deliver the promised access in return for the withdrawal of the Planning appeal.”
Paragraph 10 is also of relevance because it highlights the nature of the objection being made by Mr. McNicholas to the access proposed by Mayo County Council. It stated:
“Unless ordered by this Honourable Court the Defendants will refuse to construct the access as promised and the Plaintiff will suffer loss and damage. An access which differs to that contended for in these proceedings will damage the amenity value of the [Plaintiffs’] property and more importantly will result in an unsuitable access for the first named defendant who suffers from vertigo. This is because, inter alia, the access now being built is adjacent to the lip of a steep embankment which now formed the boundary of the carriageway, as constructed in accordance with the approved bypass scheme.”
The judgment of the High Court
Following a five day hearing in the High Court, before McGovern J., judgment was delivered on the 31st July, 2009 ([2009] IEHC 379). The principal issue before the High Court was the contention on the part of Mr. McNicholas that the local authority was under an obligation to provide “reasonable access or suitable alternative means of access” (as required by s. 49(4) of the Roads Act 1993) to the new public road. While Mayo County Council did not accept the McNicholas interpretation of the relevant legislation, they did accept that there were under a duty to construct a suitable alternative access but contended that the McNicholas family had failed to adduce any evidence to support the complaint that the Council had failed in its duty. Thus, the issue before the High Court turned on the question of the suitability of the access to the McNicholas property and from that property to the new road. One of the issues raised on behalf of Mr. McNicholas related to his complaint that he suffered from vertigo. Not only did Mr. McNicholas give evidence in regard to this issue but his general practitioner did likewise. Having considered the evidence from the general practitioner and medical reports that were available in relation to the complaints of Mr. McNicholas with regards to vertigo, it was accepted that he did indeed suffer from vertigo but the trial judge concluded that the condition of vertigo had nothing to do with the suitability of the access road.
The trial judge then noted that the bypass scheme was approved by An Bord Pleanála and was, in his view, valid. Furthermore, he pointed out that Mr. McNicholas did not challenge the scheme. He observed that the plaintiffs had wanted to have direct access on to the bypass but that this was never an option according to the officials from the County Council, something confirmed by a local public representative, Deputy Beverly Flynn T.D., who had engaged with the County Council on behalf of the McNicholas family. He then described the negotiations that had taken place between the parties with a view to providing appropriate access. McGovern J. outlined the various options available to the parties in relation to the access road. The first of those options was in accordance with Road Development Plan Drawing 401-1A, being the plan approved by An Bord Pleanála and the second option was the route proposed in planning permission P06/3897. This involved the possibility of routing the access road over the Lynskey Lands which had been acquired by SIAC. In the course of evidence, Ms. McNicholas, the plaintiffs’ daughter, who is a solicitor by profession, maintained that the access road was not included in the decision of An Bord Pleanála but she accepted that the plan incorporating the modification of the access road was included in the order. McGovern J. on this point concluded that (at para. 17):
“Even a cursory glance at Drawing 401-1A shows that the access road is included. This plan was included in the order of An Bord Pleanála under the heading ‘Modifications’.”
As is clear from the judgment, even though two alternative routes were the subject of negotiations, i.e., the route in Drawing 401-1A and the other route using the Lynskey Lands, the subject of planning permission P06/3897, the McNicholas family continued to pursue the question of direct access on to the new bypass. In the meantime planning permission was granted by Mayo County Council in respect of P06/3897 but an appeal was lodged by Mr. McNicholas in respect of that planning permission to An Bord Pleanála. In an endeavour to resolve the issue at an earlier stage a letter had been written on behalf of the County Council to Mr. McNicholas containing two proposals, namely Proposal A and Proposal B. Proposal B was the subject of the planning application P06/3897. Ultimately the negotiations reached the point that Mr. McNicholas wrote to the County Council on the 1st June, 2007 confirming that they were withdrawing their appeal from An Bord Pleanála and that they wished “to accept the accommodation works as set out in your letter of offer of the 13th July, 2006” opting for Proposal A in that letter of offer for which there was no planning permission. Thus the trial judge stated (at para. 24):
“By the time the plaintiffs withdrew their appeal in June 2007, they opted for Proposal A, which was no longer available and for which planning permission had not been obtained. By that time, the planning permission had been obtained for Proposal B.”
I note in passing in relation to that letter that a deadline had been given to Mr McNicholas that if agreement were not reached on or before 15th September, 2006 in regard to Proposal A, then works in connection with Proposal B would commence on 18th September, 2006. Curiously, as was noted by McGovern J. the position when that deadline ran out was that no planning permission had been obtained in relation to Proposal B although, as mentioned earlier, it was ultimately the subject of planning permission P06/3897. Accordingly, the situation in June of 2007 was that the McNicholas family withdrew their objection to the application for planning permission in respect of P06/3897. Nevertheless they opted for Proposal A as set out in the letter of offer of the 13th July, 2006 in respect of which there was no planning permission. At this stage, as the time provided for the completion of the bypass scheme was running out and given that there was still no final agreement between the parties that could be implemented the County Council and SIAC decided to build the access road in accordance with the planning approval for the scheme granted by An Bord Pleanála as set out in Drawing No. 401-1A. The road was then constructed in accordance with the planning permission incorporating the modification contained in Drawing 401-1A.
McGovern J. then outlined the evidence given by a number of witnesses in relation to the suitability of the road. Ultimately, the learned trial judge concluded that the access had been built in accordance with the planning approval for the scheme as passed by An Bord Pleanála. He also made a finding to the effect that (at para. 37):
“. . . it is accepted by the defendants that it is substandard on the grounds that it was built on lands which were insufficient for the purpose (see evidence of Mr. Tony McNulty and letter from second named defendant, 9th May, 2006). The first named defendant accepts that it is responsible for any acts of the second named defendant.
It must be pointed out that, insofar as there was an insufficient amount of land to enable a better access road to be built, the plaintiffs did not challenge the Compulsory Purchase Order. The access road, as built, is legal, in the sense that it has a permission from An Bord Pleanála. . . . The second named defendant went so far as to purchase part of the Lynskey lands and obtain a planning permission for the road to be built across those lands, but their plan was frustrated by the plaintiffs, who appealed the planning permission. The plaintiffs knew that the Bypass scheme had to be completed by the end of 2007. When a realistic proposal was put to them to deal with their concerns, they failed to properly engage with the defendants and make a decision within a reasonable time limit which was imposed on them. While the plaintiffs were understandably upset at the new Bypass crossing their original access road and the loss of amenity thereby arising, it did not excuse their conduct in frustrating the attempts of the defendants to provide a solution to the problem which had arisen.”
He went on to say (at para. 38 et seq):
On that basis the learned trial judge concluded that the road could be described as unsuitable access but likewise he said that he accepted that a suitable access could have been constructed if the plaintiffs had behaved in a more reasonable fashion and that they must bear responsibility for their own actions. He noted that an application for compensation in respect of the compulsory purchase order had been made and he expressed the view that it was not appropriate to make an award of damages “as any shortcomings in the suitability of the access are within the scope of the forthcoming arbitration and can properly be dealt with there” (para 40). Thus the position after the case was that the High Court refused the declarations and injunctive reliefs sought by the McNicholas family.
The issues under appeal
Following the delivery of the judgment of the learned trial judge a notice of appeal was lodged on behalf of Mr. McNicholas and a cross appeal was lodged by the first named defendant in relation to the findings of the learned trial judge that the access road was substandard or could be described as providing unsuitable access.
The issues raised by Mr. McNicholas on the appeal could be summarised as follows:
(a) Whether Mr. Justice McGovern strictly construed the decision of An Bord Pleanála made pursuant to s. 1 of the Roads Act 1993 on the 10th November, 2004 to approve N5 Charlestown Bypass.
(b) Whether Mr. Justice McGovern was correct in finding that the accommodation road met the National Roads Authority design standards.
(c) In circumstances where the respondents had made a representation to the appellants that the accommodation road would not be built if the appellants withdrew their appeal to planning permission P06/3897 and where both the respondents and the appellants had met and marked out on site where the access road would be built if the appeal was withdrawn, whether Mr. Justice McGovern had interpreted objectively paragraph 4 of the appellants’ statement of claim and whether the respondents should be allowed resile from their stated positions after the appellants withdrew their appeal to planning permission P06/3897.
A further issue emerged in the written submissions of Mr. Mc Nicholas to the effect that the consequence of the concession by the Council, since the High Court hearing, that the access road to the appellants’ premises is a public road, and not a private access road, is that the access road should have been constructed in accordance with certain national standards, which did not occur.
Thus as can be seen an issue arises as to the effect of the decision of Mr. McNicholas to withdraw his objection to planning permission P06/3897 and whether that had the effect of giving effect to a form of agreement between the parties that the accommodation road would not be constructed in accordance with drawing No. 401-1A. Secondly, the issue as to the status of the access road and what that now means in terms of standards and finally the issue in relation to the decision of An Bord Pleanála and whether that decision approved the construction of the access road.
The judgment of the learned trial judge focused on the question of the suitability of the access road constructed in accordance with the road scheme as modified by reference to Drawing 401-1A. It is worth noting that the papers before this Court include a synopsis of the plaintiffs’ arguments which were made to the learned trial judge and which synopsis was handed into the learned trial judge at the end of oral submissions. That synopsis was headed “Why the access built is not a ‘suitable alternative access’”. The following description of the unsuitability of the access road was as follows:
“
• Precipitous,
• Too narrow for any landscaping,
• Perched on the edge of an extremely steep slope which was unsettling for those using it and made it unsightly, difficult to use during inclement weather and was of a design that aggravated the first Plaintiffs (sic) vertigo.
• The design permitted the lights of any car travelling along the access to shine directly into the face of drivers using the new bypass when travelling in an easterly direction.
• The access is utilitarian in the extreme and built of the most basic of materials which are quite out of keeping with the treatment of other accommodation works on the road scheme that involve or are adjacent to residential buildings.
• Is so designed to require the property over which the access rubs to require to kept (sic) in the ownership of Mayo and be subject to right of access by [Mayo County Council] so compromising the private nature of such access and the security of such access.
• Not a design sympathetic to the property left after the original access had been taken despite the fact that there is no impediment in providing such an access.”
The thrust of the case being made by Mr. McNicholas focused almost solely and completely on the suitability of the access to the McNicholas property. To that extent, one can see that the learned trial judge also focused on that issue in his judgment. There was nothing in the case as pleaded which suggested that the access road was not part of the decision of An Bord Pleanála although some evidence was given to support that contention. I will return to this issue later.
It should be noted that by an order of this Court of the 20th January, 2016, the McNicholas family were allowed adduce additional evidence which included, inter alia, an extract from the transcript of Day 2 of the oral hearing, the Inspector’s report and various drawings together with a letter of the County engineer of the 20th September, 1977 relating to a declaration of the road,734NM, to be a public road. It is now contended that as that road which led to the McNicholas property was a public road, it would have required the extinguishment of the public right of way as part of the proposed road scheme. To a certain extent, this is not a relevant issue in these proceedings but seems to have more relevance to other proceedings involving Mayo County Council and Mr. McNicholas (see his affidavit of 14th December 2015.) This issue was raised in the context of the alleged illegality of the accommodation road. I cannot see how this issue helps Mr. McNicholas on his core arguments, particularly as it is conceded that the public right of way over that road could still be extinguished. In his affidavit of that date, Mr. McNicholas averred “that the legality of the Accommodation Road was an essential element in any argument [Mayo County Council] would submit in proving the common law extinguishment of 734NM.” Given that this issue seems to have more relevance to the other proceedings referred to and does not advance any argument made by Mr. McNicholas as to the “legality” of the accommodation road, I do not propose to consider it further.
Submissions
The Court has had the benefit of comprehensive written and oral submissions on behalf of the parties. In addition the Court had the benefit of notes of the evidence heard in the High Court prepared on behalf of Mr. McNicholas and on behalf of Mayo County Council and SIAC. (The parties could not agree a note of the evidence.) In the oral submissions made to the Court the first point that was made was an assertion on behalf of Mr. McNicholas that concerned an issue in relation to whether or not the report of the Inspector modified the proposed road development and ultimately whether the decision of An Bord Pleanála modified the proposed road scheme to provide for an alternative access to the McNicholas home. In essence, the legality of the accommodation road was being challenged on the basis that the decision of An Bord Pleanála did not afford permission for the road as constructed. It was pointed out by the Court that this was not a matter pleaded and it was argued on behalf of Mr. McNicholas that in fact the issue had been raised in the pleadings by reference to paragraph 9 of the statement of claim which I have referred to previously but for ease of reference is in the following terms:
“The [respondents] are purporting to construct an access that differs from that as promised. This alternative access is not a suitable alternative access as required by law.”
It was pointed out on behalf of Mr. McNicholas that no particulars were sought as to that claim and that Mayo County Council in their defence simply stated at paragraph 9:
“It is denied that what was constructed was not built in accordance with law.”
Mayo County Council, in their submissions, took issue with the contention that the decision of An Bord Pleanála published on the 10th November, 2004 authorising the road scheme was not in accordance with law and was outside the scope of the pleadings. The issue here is this - Mr Mc Nicholas had always contested the suitability of the road and in that context sought to suggest that the road was not constructed with the standards prescribed by law but had never suggested in the pleadings that the decision of An Bord Pleanála did not include the accommodation road and was thus not constructed in accordance with law.
Accordingly, the issue now being raised on this appeal concerns whether or not the construction of the accommodation road was legal in the sense that it was covered by the decision of An Bord Pleanála of the 10th November, 2004. It has to be said at the outset that an examination of the pleadings in this case would lead one to believe that the challenge to the legality of the accommodation road was firmly based on the contention that the accommodation road was not legal because of a failure to comply with the requirements of the Roads Act and not by reason of any deficiency in the planning process. The reliance on paragraph 9 of the statement of claim in this respect is in my view misplaced. When one considers the declarations sought in the statement of claim this point is reinforced. At no point or stage was any form of declaration sought suggesting that the accommodation road as constructed did not come within the decision of An Bord Pleanála. Rather the complaint throughout was that it did not constitute suitable alternative access to the McNicholas lands as required by the Roads Act. My view in this regard is reinforced by the content of the affidavit sworn herein by Marilyn McNicholas, solicitor, the daughter of Mr. McNicholas. In her affidavit, sworn on 16th August, 2007, there is no suggestion whatsoever that the decision of An Bord Pleanála did not include the modification proposed in Drawing 401-1A. The only complaint made related to detail. This can be seen from paragraph 3 of that affidavit in which it was deposed as follows (at para. 3):
“The approved carriageway followed the route of the proposal. However the Inspector recommended a modification. An intended underpass further east along the proposed carriageway was removed from the proposed scheme and replaced with an overpass adjacent to the Plaintiffs (sic) land. Although there was some detail available at the oral hearing concerning the modification the exact impact of this change on the provision of alternative access to the plaintiffs’ land remained unclear because of lack of detail. All understood more detail would be provided.”
At that point Ms. McNicholas exhibited Drawing 401-1A. The thrust of her affidavit concerned the nature of the access to be provided to the McNicholas home, the correspondence and negotiations that took place in that regard between the McNicholas family and Mayo County Council and SIAC and the suitability of the road. This is perhaps encapsulated in paragraph 24 of her affidavit where she stated:
“The Plaintiffs herein have seen what was a beautiful secluded property being seriously encroached upon by a major road development. They have lost a portion of woodland which was clearly a very attractive amenity for their property. They are now being asked to accept an entrance which they have been advised materially impacts upon the amenity value of their property. And (sic) is unsuitable for the first plaintiff because of his vertigo.”
Finally at paragraph 27 she commented:
“I am advised and believe that the sole issue in this case is whether or not the Defendants are obliged to deliver a suitable alternative access in accordance with the planning permission using also part of the Plaintiffs’ lands to construct the access.”
Mayo County Council contend that this issue was not before the High Court.
It would be fair to point out that in the course of his judgment the learned trial judge referred to the evidence given before him and noted that Ms. Geraldine Fahy, a town planner, gave evidence on behalf of the McNicholas family and stated that the modifications in Drawing 401-1A would not have been considered by An Bord Pleanála. By contrast Mr. Richard Glancy, a senior executive engineer with Mayo County Council, said that Drawing No. 401-1A went to An Bord Pleanála following the hearing before the Inspector and became part of the plan. The learned trial judge preferred the evidence of Mr. Glancy to that of Ms. Fahy. Thus, it seems to me that the issue as to whether the accommodation road was legal in the sense that it was covered by the decision of An Bord Pleanála was before the learned trial judge and he concluded that the accommodation road as contained in Drawing No. 401-1A was legal in the sense that its construction was authorised by the decision of An Bord Pleanála.
A further aspect of the submissions made on behalf of Mr. McNicholas was to the effect that Mayo County Council in the course of the hearing before the learned trial judge in some way misled him as to the source of the request for the modification. The Court has been furnished with a copy of extracts from the transcript of the oral hearing from Day 2 and Day 3 and on reading the same the impression I get is that it was the Inspector at the oral hearing who inquired as to whether or not it would be possible to provide an overbridge as opposed to an underbridge. However, it seems to me to be irrelevant for any consideration that arises in this case as to whether or not it was the Inspector who raised the issue of an alteration to the proposed road scheme by providing an overbridge as opposed to an underpass to allow access to the MrNicholas property. At the end of the day the drawing was produced to the Inspector at the oral hearing on the third day of the hearing and formed part of his recommendation and became part of the modifications provided for in the decision of An Bord Pleanála. It is immaterial to the decision of An Bord Pleanála whether Mayo County Council or the Inspector first raised the possibility of an overbridge as opposed to an underbridge.
Another argument made on behalf of Mr. McNicholas was to the effect that even if the decision of An Bord Pleanála had the effect of incorporating and modifying the proposed road development by reference to Drawing 401-1A that the modification did not include or authorise the construction of the accommodation road. This was because it is said that An Bord Pleanála did not consider the effect of the change on the mitigation measures that had previously been submitted by reason of the Environmental Impact Statement (“the EIS”). Thus, it is contended that when one examines the decision of An Bord Pleanála including the modification it makes no express reference to the construction of the accommodation road in the location of the mitigation measure.
I have read through the note of evidence provided on behalf of Mr. McNicholas and the separate note provided by the respondents. It is clear that a major concern on his part was the effect of building the new accommodation road and the effect it would have on the screening provided by trees planted by Mr. McNicholas and his family over the years. It was clearly of importance to him that some of these could be saved. Indeed some of the correspondence reflected that. It was also clear from the evidence that a major consideration for Mr. McNicholas was the possibility of obtaining direct access to the new road. There was undoubtedly a great deal of discussion and correspondence on this issue. However, what is also clear from the evidence is that Mr. McNicholas did not challenge the decision of An Bord Pleanála once he was made aware of the decision. As he said in the course of his evidence: “Challenges cost money. I was advised that Mayo would sort it out”.
Nevertheless, there is nothing in the evidence which indicates that there was any question as to the validity of the decision of An Bord Pleanála by virtue of any conflict between the construction of the accommodation road and the mitigation measures set out in the EIS. The argument made to this Court in this context was that the EIS in relation to the proposed road development had specified landscaping mitigation measures because the carriageway proposed was cutting through a plantation area and the idea of a mitigation measure was to link the various bits of forestry that were left after the road went through it but that there was a mitigation measure proposed for almost a kilometre along the road and the mitigation measure ran through the area where the accommodation road is now built. It was a ten metre deep mitigation measure. There was room for nothing else there. Reference was made to the decision of An Bord Pleanála and in particular to the paragraph headed “Reasons and Considerations” in which it is stated as follows:
“Having considered the environmental impact statement submitted with the application, including the mitigation measures set out therein, the submissions made in relation to the likely effects on the environment of the proposed road development and the report and recommendation of the person who conducted the overall hearing . . . the Board has concluded that, subject to compliance with the modifications set out below, the proposed road development would not give rise to significant adverse effects on the environment and would be in accordance with the proper planning and sustainable development of the area.”
Thus it was contended that Drawing No. 401-1A could not have been approved as such because it would conflict with the drawings in the EIS which were expressly referred to in the reasons and considerations and that all that was accepted by the Board was a change from an underpass to an overpass.
The argument being made is that An Bord Pleanála in its decision accepted a proposal to change the bridge layout so that the design of an underbridge be modified to an overbridge with link roads on either side of the carriageway and no more. I have to say that I think that that is an oversimplification of the situation. In short it is contended that the Drawing No. 401-1A was in conflict with the drawings in relation to the EIS and thus could not have been approved. All that was done was that the Board had approved a change from an underpass to an overpass. Reference was made to a number of drawings in support of this contention. I have to say that I have difficulty with this contention. It is clear from an examination of the drawings both in the original form and as proposed by Drawing No. 401-1A that the manner in which the link road would connect with the proposed road scheme was quite different and involved the approach from the McNicholas home to the proposed overbridge from a different direction than would have been the case in respect of the proposal for an underbridge.
Counsel on behalf of Mayo County Council in the course of his submissions referred to the pleadings in the case and to the correspondence that preceded the issuing of proceedings and referred to the fact that the complaints about the suitability of access made were the steepness of the accommodation road and the fact that Mr. McNicholas suffered from vertigo. Although direct access was an issue raised as well in the course of correspondence and negotiations and indeed was referred to in the course of the hearing, it was never asserted on behalf of Mr. McNicholas in the pleadings before the Court that he was entitled to direct access. Essentially he made the case that it was never part of the pleadings that an alternative access was not provided for in the decision of the Board and it was not part of the proceedings that the alternative access as shown on Drawing No. 401-1A was not approved by the Board. As such it was contended that these matters had not been canvassed before the High Court. Insofar as there is a dispute at this stage as to whether or not the Inspector invited the modification by reference to the change from an underpass to an overpass, it was contended that this was at the request of the Inspector. As I have indicated previously it seems to me to be irrelevant as to where the modification came from but as a matter of practicality I am satisfied that the Inspector was the person who invited the modification and that it did not come in the first instance from Mayo County Council. Nevertheless as I have said this is a matter of irrelevance given that ultimately An Bord Pleanála approved and accepted the recommendation of the Inspector in this regard and specifically referred to the modification in its decision.
The point was made on behalf of Mayo County Council that following the decision of An Bord Pleanála negotiations took place over a considerable period of time to meet the concerns of Mr. McNicholas. In order to do so, the Council went to far as to acquire additional lands from a neighbour of Mr. McNicholas called Mr. Lynskey as proposals being discussed by Mayo County Council with Mr. McNicholas in order to provide suitable alternative access could not be effected within the confines of the land acquired by the compulsory purchase order. It was in those circumstances that further land was acquired as indicated above and secondly that an application was made for planning permission P06/3897.
Counsel highlighted some of the issues that were raised in the course of the discussions and negotiations between Mr. McNicholas and his representatives and Mayo County Council and SIAC and their representatives. Thus following a meeting on site in 2006, SIAC wrote to Mayo County Council by letter dated the 2nd November referring to the meeting and to a draft proposal put forward by Mr. McNicholas regarding the requirements of his entrance in which SIAC stated:
“We are currently unable to complete works at this location as Mr. McNicholas will not permit them to be constructed in the form currently proposed by [SIAC] or [Mayo County Council]. He has cited the steepness of the lane and insufficient space for a tree lined avenue. He considers that the current proposals are for a much lower standard of entrance than existed previously and as such are unacceptable to him.”
Thus, it was pointed out that at that stage, the appearance of the avenue to his house and the steepness of the access were the concerns. Again reference was made to a letter from Mr. Bergin, an engineer who gave evidence of behalf of Mr. McNicholas in the course of the proceedings, in which he expressed concerns regarding the feasibility of constructing the access road and retaining wall and further emphasised the fact that having regard to the fact that Mr. McNicholas suffered from vertigo it was necessary that that should be taken into account in order for the access to be “of practical use”. A further letter from Marilyn McNicholas to the manager of the Council dated the 2nd August, 2007 was referred to and in the course of that letter the following was stated:
“Whilst, it was erroneous not to have teased out this matter at the hearing, we can only deal with the facts as they are now. The access that is proposed is of a poor standard in comparison with that which existed previously. It is at a very raised height in a precarious position. My father suffers from vertigo and I would submit that this is not acceptable for his needs. I would suggest that there are alternatives here and ask that you please reconsider the position.”
Accordingly, it was emphasised that the matters being raised by Mr. McNicholas prior to the commencement of the proceedings were matters of design, namely that the accommodation road was precipitous, too narrow for landscaping and was perched on the edge of a steep slope. Finally, it was pointed out that at an early stage following the decision of the Board the solicitors acting on behalf of Mr. McNicholas in a letter of 23rd May, 2005 wrote:
“Our clients are not in any way disputing the Order made by An Bord Pleanála and are not preventing your clients in any way from taking possession of the property to which you are legally entitled.
All our clients require is that your clients follow the recommendations as set out in the Report of the Inspector which said report and recommendations were approved of by the Board and included in the Order dated the 10th November, 2004 and preserve the trees on the property being acquired from our clients.”
Discussion
It is important to say at the outset that the nature of this case and the issues that have arisen have changed considerably since the decision was first made by An Bord Pleanála to approve the Charlestown Bypass. Litigation is governed by rules of court and practices and procedures to ensure that the process of litigation is conducted fairly and efficiently. It is a feature of the requirements of our jurisprudence that a party making a claim against another should set out clearly the case being made against the other party. It does not take much consideration to realise why this must be the case. It would not be fair to allow a party to bring a case to court and then to confront the other side with arguments and issues that were not previously made known to the other party thus rendering the litigation process unfair and, in truth, unworkable. Thus it is a fundamental requirement that a party issuing proceedings pleads the nature of the case being made against the other side. This case however has been the subject of a number of changes of tack by Mr. McNicholas over the course of its history. The approach taken has been highly unsatisfactory and is not in accordance with the requirements of the practice and procedures to be followed in the course of litigation being conducted in this jurisdiction.
The issue that the accommodation road was not provided for in the decision of An Bord Pleanála was raised in the course of the High Court hearing without having been pleaded. The argument made in that context was dealt with in evidence and decided by the learned High Court judge who, as previously pointed out, concluded that the evidence of Mr. Glancy was to be preferred to that of Ms. Fahy in this respect. It should be borne in mind that this contention derived from the evidence of Ms. Geraldine Fahy on behalf of Mr. McNicholas to the effect that the modifications in Drawing No. 401-1A would not have been considered by An Bord Pleanála. That evidence was contradicted by Mr. Glancy on behalf of the County Council who said that the drawing was submitted to An Bord Pleanála and became part of the plan. The learned trial judge stated that he preferred the evidence of Mr. Glancy on this issue and when one reads the decision of An Bord Pleanála it is impossible to see how the learned trial judge could have come to any other conclusion given the express reference to the modification of the plan by that drawing. In fairness to Mr. McNicholas one of the complaints made was that there was no express reference in the decision of An Bord Pleanála to the accommodation road. Whilst that is so, the accommodation road is included in the drawing No. 401-1A and in those circumstances there can be no doubt whatsoever that the decision of An Bord Pleanála modifying the proposed road scheme by reference to the inclusion of the Drawing No. 401-1A granted permission for the accommodation road. The point being made on behalf of Mr. McNicholas was that there was an error on the part of the learned trial judge in this context because there had been no reference to the accommodation road itself being approved in the decision of An Bord Pleanála. The drawing at issue was relevant to the modification alone, namely the provision of an overpass as opposed to an underpass as originally intended. However this submission ignores the fact that the purpose of the change was to “reduce the community severance impact of the proposed road development”. In other words the modification was not simply providing an over pass as opposed to an underpass. It was intended to give access by the users of the accommodation road to the new bypass. To that extent it seems to me to be impossible to accept the argument that the drawing No. 401-1A was used only to show the modification by means of an overpass as opposed to an underpass without reference at all to the necessary alternation in the accommodation road, the orientation of which was changed as a result of the modification.
The second issue raised in relation to the mitigation measures can be explained in the following way. As is necessary in relation to a proposal for a new road development it is necessary to submit an Environmental Impact Statement in relation to the effect that the construction of the road would have on the environment concerned. In this case mitigation measures were set out in the EIS and the decision of the Board expressly stated that:
“Having considered the environmental impact statement submitted with the application, including the mitigation measures set out therein . . . the proposed road development would not give rise to significant adverse effects on the environment . . .”
The contention on behalf of Mr. McNicholas is that as a result of the building of the accommodation road, the mitigation measures included in the EIS or some of them have not been provided for as set out in the EIS. Thus it is contended that the construction of the accommodation road in the location of the mitigation measure is not provided for in the decision of An Bord Pleanála. It is one thing to say that the accommodation road is not included in the decision of An Bord Pleanála because there is no express reference to the accommodation road in the decision even if it is clearly shown in a drawing expressly referred to in the decision but it is another matter altogether to suggest that the accommodation road could not be valid because the decision properly construed required the mitigation measure and the construction of the accommodation road in that location resulted in the omission of the mitigation measure. The argument thus made seems to me to be a direct challenge to the validity of the decision of An Bord Pleanála. In other words this is not so much a question as to whether or not the accommodation road was in fact included in the decision itself but rather whether, assuming the accommodation road is included in the planning decision, it can be a valid decision in circumstances where by necessary implication the construction of the accommodation road means that certain mitigation measures have to be excluded notwithstanding that they have expressly been referred to in the decision. The nature of the argument being made in this regard highlights the unsatisfactory nature of the manner in which this issue has now been raised not having been pleaded and not have been argued before the learned High Court judge. There was no evidence before the High Court in relation to the Environmental Impact Statements, the mitigation measures and the extent to which mitigation measures have had to be omitted from the construction of the accommodation road. Thus this Court is being asked to deal with this issue in an evidential vacuum. Further, there was no discussion or argument before the learned High Court judge on this issue and obviously no conclusions reached as to the extent to which modifications resulting in changes to proposed mitigation measures could have an effect on the validity of a decision.
Fundamentally, however, it seems to me that there is an even greater problem for Mr. McNicholas in now pursuing this argument. It is this. As has been seen from references earlier in the course of this judgment to correspondence and to the judgment of the High Court, there was a decision taken by Mr. McNicholas following the 24th November, 2004 when the decision of An Bord Pleanála was published not to challenge that decision. I have referred previously to some of the correspondence that passed in that regard. The Planning and Development Act 2000 provides for the process to be employed when a party wishes to challenge a decision of An Bord Pleanála, namely, a challenge to be made by way of judicial review proceedings to which strict time limits apply. A conscious decision was made by Mr. McNicholas not to challenge the decision of An Bord Pleanála. That being so, it is not permissible at this stage to allow what is in effect a challenge to the validity of the decision of An Bord Pleanála to be raised on appeal in these proceedings to which An Bord Pleanála is not a party, never having been raised prior to this appeal. To do so is quite simply wrong. At the heart of the issue sought to be raised by Mr. McNicholas is an important question as to the extent to which a modification such as the one at issue in these proceedings could interfere with mitigation measures provided for in an EIS. It should be borne in mind that s 51 (1) of the Roads Act 1993 as amended provides:
“A proposed road development shall not be carried out unless An Bord Pleanála has approved it or approved it with modifications.”
There would be no point in having an oral hearing if there were not to be the possibility of modifications to the plan as submitted in the light of the issues raised at the oral hearing. Such oral hearing leads to the recommendations of the Inspector which may include modifications to the proposed road scheme, which in turn, can be taken into consideration and, where appropriate may be incorporated in the decision of An Bord Pleanála. Obviously, a modification of the scheme as proposed will result in changes to the original scheme and the extent of those changes will vary from case to case. However, there is no evidence on the effect of the modification contained in the decision and in circumstances where this issue was not raised previously, but particularly, given that this seems to me to be a challenge to the decision of An Bord Pleanála, it is not permissible to raise this issue in this way at this point in time. It was open to An Bord Pleanála to modify the proposed Road scheme as set out in the Act of 1993. If a party wishes to challenge a decision of An Bord Pleanála, there is a procedure provided for doing so. In this case that procedure was not adopted and therefore the matter is one which cannot now be raised.
For the reasons outlined above, I am satisfied that no valid complaint can be made by Mr. McNicholas in relation to the planning status of the accommodation road on any basis.
Legitimate Expectation
As will be recalled, following the decision of An Bord Pleanála in 2004 to grant approval for the Charlestown bypass, Mr. McNicholas and Mayo County Council engaged in lengthy discussions and negotiations in respect of access to the bypass from the McNicholas home. Mr. McNicholas tried to obtain direct access to the new road but this was not acceptable to Mayo County Council. Ultimately, in a desire to meet Mr. Mc Nicholas’ concerns, additional property which had not been part of the original CPO was acquired from the adjoining landowners, the Lynskeys, and planning permission was sought from Mayo County Council to build a new, re-configured, accommodation road giving access to the McNicholas property. This was described by Mr. McNicholas as “Option B”. Mr. McNicholas objected to planning permission for this proposal which was nonetheless granted as Planning permission P06/3897. He then appealed the decision to grant permission for this alternative accommodation road to An Bord Pleanála. There was a further option, described as “Option A” which had become the preferred option of Mr. McNicholas. The third option was to build the accommodation road in accordance with Drawing No. 401-1A as provided for in the decision of An Bord Pleanála.
This issue is dealt with extensively in the judgment of McGovern J. (See paras. 16 - 22). Option A involved the construction of the accommodation road on lands made available by SIAC, subject to them acquiring the lands from the Lynskeys and on lands dedicated by Mr. McNicholas for the purpose to facilitate access at a new location. This option was contained in a proposal first made in an email from Mayo County Council to Mr. McNicholas agricultural consultant on 1st September 2006. It was added that if agreement was not reached by September 15th 2006 on that proposal, works would commence on the 18th September 2006 in accordance with Option B. There was no agreement on Option A within that time frame and as Option B was still on the table at that stage, Mayo County Council proceeded to obtain panning permission in respect of Option B, which was granted on the 24th February 2007. Option A was never the subject of an application for planning permission.
The position by the middle of September 2006 was summarised by the learned trial judge as follows (at para. 23):
“Therefore, on 18th September 2006, the position appears to have been as follows:
(i) the plaintiffs had failed to meet a deadline laid down by the first named defendant for reaching agreement with regard to Proposal A;
(ii) the first named defendant had indicated that the works would commence in accordance with Proposal B if no agreement was reached by that date;
(iii) the defendants, for their part, were not in a position to commence the works as planning permission had not been obtained for Proposal B at that time;”
He continued (at paras 24-25):
McGovern J. noted the contents of the letter of the 1st June 2007 from Mr. McNicholas’ Solicitors notifying Mayo County Council that they were withdrawing their appeal to An Bord Pleanála indicating that they wished to accept Option A as described in the letter of the 13th June 2006. This letter contained the original proposal in respect of Option A which became subject to the deadline imposed in the letter of the 1st September 2006. As McGovern J. observed (at para. 34) Mr. McNicholas “opted for the solution which had no planning permission at a time when the Bypass scheme was approaching its completion date.” Ultimately, in the course of his evidence, Mr. McNicholas conceded that by the time of the withdrawal of the appeal, there was no agreement as to which accommodation road was to be used.
Essentially, the claim made by Mr. McNicholas was that if the appeal was withdrawn, they would receive an access which would accord with P06/3897 “subject always to final agreement of the parties on certain matters that were fluid such as landscaping (the Planning Permission access)” as set out in Paragraph 4 of the Statement of Claim. This is amplified in paragraph 5 of the Statement of Claim in which it was stated that “the Plaintiffs withdrew their planning appeal it having been made clear to the Plaintiffs by the Defendants that construction of an access acceptable to the Plaintiffs would proceed only on basis that the Plaintiffs would withdraw their planning permission appeal.”
One of the points made on behalf of Mr. McNichol;as was that Option A did not require planning permission. Even if that were the case, it still does not get over the fact that as at the time when the appeal was withdrawn, it was far from clear as to what was going to happen. The test set out by Fennelly J. in the Supreme Court decision in Glencar Exploration v Mayo County Council [2002] 1 IR 84 in relation to a claim based on legitimate expectation requires three matters to be established. The first of those is that the public authority must have made a statement amounting to a promise or representation as to how it will act. It is clear from the evidence recorded by the McGovern J. that the position was that if the appeal was withdrawn then the matter of agreeing access to the McNicholas property could take place. In other words, the position was that there could be no further discussion between the parties unless and until the appeal was withdrawn. (See para. 27 of the judgment).
The evidence before McGovern J. failed to establish that Mayo County Council had made any representation to Mr. McNicholas of the kind contended for if he withdrew his appeal. Mr. McNicholas in the course of his evidence conceded that no final agreement had been reached with Mayo as to what would happen when the appeal was withdrawn. The position was that if the appeal was withdrawn, there could be further discussions to attempt to reach an agreement. The evidence was clear that there were a number of options still alive. There was the option provided for in the original decision and Option B. It may well be that Mr McNicholas hoped that by withdrawing the appeal agreement could be reached on Option A but there was no representation made by Mayo County Council to that effect. For that reason, the appeal on this ground must fail in my view.
The cross-appeal
Mayo County Council have cross-appealed from the findings of the learned trial judge that the accommodation road constructed by Mayo County Council and SIAC was “substandard”. In reaching these conclusions, McGovern J. relied on a letter of the 9th May, 2006 from Mr. John Mitchell, the project manager of SIAC, writing to Mayo County Council in relation to the plaintiffs’ entrance in which it was stated as follows:
McGovern J. went on to comment (at para. 36):
“This letter is significant. It acknowledges that any access which was built in order to fit into the lands which had been Compulsorily Purchased would be substandard. This letter was written before the purchase of the Lynskey lands by the second named defendant.”
He then went on to conclude that it was accepted by the defendants that it is substandard on the grounds that it was built on lands which were insufficient for the purpose. In that regard Mr. Justice McGovern also relied on the evidence of Mr. Tony McNulty, a senior engineer with Mayo County Council. In the course of his evidence he accepted that the new access road would not be of the same standard as the original access road. It was submitted on behalf of Mayo County Council that the use of the word “substandard” in the letter of the 9th May, 2006 was not used in a technical sense but was only colloquial in nature. There is no dispute whatsoever that the road as constructed is not as good as that which was there prior to the construction of the road scheme and the new accommodation road. Mr. McNicholas in his submission has urged this Court to conclude that the learned High Court judge did not err in dealing with the issues raised on the cross-appeal.
It seems to me that the conclusions of the learned trial judge in this regard are somewhat unsatisfactory. Looking again at the passage cited by the learned trial judge from the letter of the 9th May, 2006, it is clear that insofar as there was a reference to the lands being insufficient for the purpose of constructing the access road and accommodation works that what was being said that it was insufficient to do so to the standard of the existing entrance or of Mr. McNicholas expectations. Looking at the evidence of Mr. McNulty quite clearly he was making the very same point. In other words he was saying that the new access road would not be as good as that which had existed prior to the change required as a result of the construction of the Charlestown Bypass. Reference has previously been made to the provisions of s. 49(4) of the Act of 1993 which requires that “a suitable alternative means of access” be provided. It is undoubtedly the case that what has been provided does not meet the standards that existed prior to the completion of the bypass scheme but in my view when one looks at the evidence relied on by the learned trial judge, it is quite apparent that the evidence simply established that, insofar as the lands available were concerned, that they were not sufficient to provide a new accommodation road and entrance to the standard required by Mr. McNicholas but this is not to say that the land was not sufficient to construct an accommodation road and as we know this has now been done. Equally, insofar as the construction of the accommodation road has been described as substandard, it seems to me that the use of that word has to be seen in the context of the evidence which was to the effect that it was not to the same standard as that which Mr. McNicholas had previously enjoyed. In the circumstances, I do not think it is correct for the learned trial judge to have found that the road was substandard on the grounds that it was built on lands which were insufficient for the purpose. It is clear from the evidence in this case that Mayo County Council went to a great deal of trouble as did SIAC to meet the requirements of Mr. McNicholas in relation to the construction of alternative access to their property. Unfortunately it was never possible for Mayo County Council and SIAC to reach agreement with Mr. McNicholas and in those circumstances, I have little doubt that what is now present is not to the standard that Mr. McNicholas would have wished for. That is not to say that the lands available by way of CPO for the construction of the accommodation road were insufficient and thus I am of the view that the learned trial judge erred in reaching that conclusion as in my view he was in reaching the conclusion that the road as constructed was substandard.
Conclusion
I am satisfied that the accommodation road as constructed was provided for in the decision of An Bord Pleanála by reference to the modification referred to in the decision of An Bord Pleanála and that the accommodation road was clearly shown on Drawing No. 401- 1A. The fact that there was a reference in the decision of An Bord Pleanála to mitigation measures does not mean that the accommodation road could not be built because An Bord Pleanála had had regard to the modification of the proposed scheme by reference to the drawing.
The conduct of this appeal on behalf of Mr. McNicholas was unsatisfactory to say the least. A number of issues were raised which had not been raised before the learned High Court judge. The question of whether or not the accommodation road was comprised in the decision of An Bord Pleanála as modified was an issue before the High Court despite not having been pleaded as such, but it was never an issue before the High Court that the accommodation road could not be constructed in accordance with the decision of An Bord Pleanála by reference to the mitigation measures referred to in the decision. In practical terms that was no more or less than a direct challenge to the decision of An Bord Pleanála. It was entirely inappropriate to attempt in this appeal to challenge the decision of An Bord Pleanála not least because such a challenge can only be brought in accordance with the statutory provisions contained in the Planning and Development Act 2000 and in proceedings in which An Bord Pleanála is a party.
It seems to me to be the case that Mayo County Council and SIAC bent over backwards to try and meet the requirements of Mr. McNicholas. They went so far as to acquire other lands and obtained planning permission to construct the accommodation road over those lands with a view to satisfying Mr. McNicholas’ requirements. Even that did not satisfy Mr. McNicholas and at the end of the day Mayo County Council constructed the accommodation road in accordance with the original decision of An Bord Pleanála. As a result, Mr. McNicholas has to some extent created the situation which has left him with the worst of the choices available to him. Initially, when proposals were made to him as to various options that were available, he did not come back to the Council accepting the proposal which ultimately was his preferred option. That led the Council to go to the trouble of obtaining planning permission in respect of Option B. However after he withdrew his appeal to An Bord Pleanála in respect of that planning permission, he then reverted to the situation where he wished to have Option A constructed. In those circumstances with time running out, the Council went ahead and constructed the accommodation road in accordance with the original decision of An Bord Pleanála. Unfortunately, this has left Mr. McNicholas with the worst option from his point of view.
It is to be hoped that the arbitration which remains outstanding in relation to the CPO can be concluded. As the learned trial judge pointed out any shortcomings in the suitability of the access are within the scope of the arbitration and can be dealt with there.
This case as was heard before the High Court to a large extent concerned the suitability of the accommodation road by reference to the complaints in relation to Mr. McNicholas’ vertigo and the height of the road. Those were the real issues before the High Court and it is unsatisfactory that the matter changed so significantly in the appeal to this Court.
In all the circumstances of this case I would dismiss the appeal of Mr. McNicholas and I would allow the cross-appeal of Mayo County Council.
