The Court of Appeal has rejected Alan Lynskey’s appeal over the grounds and costs attached to a High Court order quashing Mayo County Council’s decision to declare roads and footpaths in phase 1 of the Rath Dubh estate public roads.
In a judgment delivered on 17 April 2023, Ms Justice Butler said the High Court had granted the relief Lynskey sought, but relied on grounds E5, E6 and E19 of his statement of grounds. The appeal concerned his claim that the court should also have relied on other grounds, and his challenge to the costs order.
The council’s decision was made on 1 September 2021 under section 11 of the Roads Act 1993. Lynskey, owner of phase 1’s common areas, argued that the council had not satisfied itself that the roads were of general public utility and had not considered his submission. The council conceded judicial review on grounds E5, E6 and E19. The High Court quashed the decision on those grounds.
The Court of Appeal said the High Court judge had not found that the council’s decision was lawful on the other grounds; she had granted certiorari on what she considered the clearest basis. The court said quashing the decision on additional grounds would not change the legal effect of the relief already granted.
It declined to add grounds E4, E20 or E21 as further bases for the order. On ground E20, the court said the statutory process did not determine pre-existing rights of way and that the High Court was right not to decide the alleged effect on the value of Lynskey’s land or the dispute between neighbouring landowners. The court said ground E21 added nothing to ground E19 insofar as it concerned the Roads Act provisions. It also referred to judicial restraint on constitutional arguments where a case can be resolved without deciding them.
The appeal court amended the High Court order to state expressly that relief was granted on grounds E5, E6 and E19, and that the application before the High Court was for leave to seek judicial review. It rejected Lynskey’s argument that the council could not appear or seek costs because it had filed no statement of opposition. The council had been put on notice of the leave application and could explain its concession.
The Court of Appeal also rejected the costs appeal. The High Court had awarded Lynskey outlay and expenses up to 19 May 2022 and the council its costs from that date. The appeal court said he had been warned about the risk of costs after declining the council’s concession, and upheld that order.
The judgment noted a separate dispute between Lynskey and Frescobol Holdings Ltd about phase 2 residents’ access over phase 1. It said that private-law dispute was outside the judicial review appeal and was not resolved by the judgment.