The High Court refused all relief sought by Kerry Fish (Ireland) Unlimited Company in its judicial review challenge to the resumption of daytime traffic restrictions on Bridge Street and The Mall in Tralee in May 2020.
The company, which trades as a fish shop, restaurant and delicatessen on The Mall, argued that Kerry County Council had to screen the restrictions for possible effects on a protected European site under the Habitats Directive and Ireland’s 2011 Birds and Natural Habitats Regulations. The council had not carried out such screening.
The restrictions, which barred vehicles from the two streets between 10.30am and 6pm, were introduced in December 2017 under a council decision made the previous month. The company did not challenge that decision. During the first COVID-19 lockdown, the council temporarily suspended the restrictions from 28 March 2020, after requests from businesses including the company. The suspension ended on 17 May, after the council agreed on 13 May to resume the measures.
The company applied for leave to bring judicial review on 27 July 2020. At the hearing, it abandoned its main challenge based on alleged failures to follow procedures under section 38 of the Road Traffic Act 1994. It relied instead on a pleaded ground concerning the Habitats Directive.
The court held that the company could not rely on an alleged breach of the 2011 regulations because they were not mentioned in its statement of grounds. The judge read that statement as covering the 2020 action under the Directive, but found that this did not extend to a separate claim under the regulations.
The judge also held that the council made only one decision to introduce the traffic scheme: in 2017. The 2020 action merely ended a temporary suspension, rather than creating a new scheme requiring fresh procedures or assessments. The company was out of time to challenge the 2017 decision, and could not bring a collateral challenge by framing it as a challenge to a new 2020 decision.
In the alternative, the judge found that reinstating the restrictions was not a “project” under the 2011 regulations because the streets remained public roads and their land use had not changed. The judge also concluded that the company had not established a real risk that the restrictions, or traffic diverted elsewhere, could significantly affect a protected site. The screening obligation therefore did not arise under Article 6(3) of the Directive.
The judgment was delivered by Mr Justice Barr on 21 January 2022.