The High Court has quashed two decisions concerning Dublin Bus’s altered 41X bus route between Swords and Dublin city centre via the Port Tunnel, and declared that the Minister unlawfully delayed deciding a second licence application by Digital Messenger Limited, trading as Swords Express.
Mr Justice McMahon ruled that the Minister’s August 2009 decision that the revised 41X route did not compete with Swords Express was based on the wrong question. Section 25 of the Transport Act 1958 required the Minister to decide whether the services competed. The Minister had instead relied on analysis of whether removing a bus stop took away Dublin Bus’s competitive advantage.
The judgment distinguishes that competition question from the separate question of whether the Minister should consent to a competing route. If there is a prima facie issue of competition, the matter must go to the Minister for a consent decision. At that later stage, the Minister has wide discretion to consider matters including fairness, subject to the applicable legal standard.
The dispute followed changes to the 41X route through the Port Tunnel. A consultants’ first report found that the route competed with Swords Express. After Dublin Bus proposed removing the Ballintrane stop, a second report focused on whether that change removed a competitive advantage. The Department concluded there was no competition and that consent was unnecessary. The judge held that this approach was in error.
The court also examined the delay in deciding Swords Express’s B1 licence application, submitted around February 2008. The Department said the application was queued behind a third-party application. The judge found that this did not justify a delay of almost two and a half years. He also criticised the inconsistent use of the Department’s first-come, first-served guidelines and noted the Minister’s earlier undertaking to use best endeavours to decide the application within three months of the competition determination.
The Department had indicated in July 2010 that it intended to reject the B1 application, citing a lack of evidence that Swords Express had the resources to provide the service. The judge said the decision was not final and that the court could not challenge it on its merits. The court did not decide whether the licence should be granted.
The orders quashed the August 2009 decision that the altered 41X route did not compete with Swords Express, and the related decision authorising or permitting Dublin Bus to operate that altered route. The court also declared that the respondent had unlawfully delayed deciding the B1 application. The judgment does not determine the eventual outcome of that application.