The Supreme Court has dismissed Peter and Nancy McNicholas’s appeal over the access road built to their home beside the N5 Charlestown bypass in County Mayo. It also allowed Mayo County Council’s cross-appeal, overturning the High Court’s finding that the road was substandard because the land acquired for it was insufficient.
In a judgment delivered by Ms Justice Dunne on 1 June 2017, the Court held that the access road was covered by An Bord Pleanála’s 2004 approval of the bypass, as modified by Drawing No. 401-1A. The drawing showed the road, and the Board’s decision expressly incorporated it as part of a change from an underbridge to an overbridge intended to reduce community severance.
The couple had sought declarations and orders requiring the defendants to provide a suitable alternative access, as well as an injunction and removal of works. Their concerns included the steepness and position of the road and its effect on Mr McNicholas, who had evidence of vertigo. The Supreme Court did not grant those remedies. It said shortcomings in the access could be addressed in the still-outstanding arbitration concerning the compulsory purchase order.
The judgment recounted that the Council and contractor SIAC Wills JV Limited discussed alternative access options with the McNicholases. Planning permission was obtained for one option using land bought from neighbouring landowners, but the couple withdrew their appeal against that permission in June 2007 and sought a different option for which no planning permission had been obtained. The Court found no evidence that the Council had promised that withdrawing the appeal would secure that preferred option. It rejected the legitimate-expectation ground of appeal.
The Court also refused to consider an argument that the access road conflicted with environmental mitigation measures in the project’s Environmental Impact Statement. That issue had not been pleaded or argued in the High Court, and there was no evidence there on the effects of the road on those measures. The Court treated the argument as an impermissible late challenge to An Bord Pleanála’s decision, which had not been challenged through the statutory judicial-review procedure.
On the Council’s cross-appeal, the Court said the evidence showed that the new access was not as good as the previous entrance or as Mr McNicholas would have wished. It did not establish that the land acquired was insufficient to build an access road. The High Court’s finding of substandard construction on that basis was therefore set aside.