The High Court declined to order Mayo County Council and its road contractor to reroute a replacement access road serving Peter and Nancy McNicholas’s home near Swinford, County Mayo. The court found fault on both sides and said it would make no order or declaration in the proceedings.
The N5 Charlestown Bypass cut across the couple’s former driveway after part of their land was acquired under a compulsory purchase order. The replacement access runs alongside the bypass. The couple argued it was unsuitable and sought declarations and orders requiring a different access, including one that would cross land bought from a neighbouring farmer and part of their own property.
The council accepted for the purposes of its submissions that it had a duty to provide suitable alternative access. The judge agreed that this was the duty and considered whether it had been met. He found the built road complied with An Bord Pleanála’s planning approval, but the defendants accepted it was substandard because the land available was insufficient. The judge said it could therefore be described as unsuitable to that extent.
The couple also argued that they had understood the road would follow a different route if they withdrew their appeal against planning permission for a proposal involving the neighbouring farmer’s land. The judge found no final agreement on the route. By the time the couple withdrew their appeal in June 2007, they sought an earlier proposal that lacked planning permission; permission had been granted for the other proposal. The judge said the defendants could have built across the farmer’s land, which would have improved the access, and gave no satisfactory explanation for not doing so. He also found the couple had frustrated efforts to reach a solution and committed too late to the route requiring some of their own land.
The couple said the road’s gradient and proximity to the bypass made it unsafe for Peter McNicholas, who has vertigo. The judge found the evidence did not establish that the condition made the access unsuitable. He also said it was no more steep than parts of the former access. The court did not decide compensation for the loss of amenity or other effects of the road: those matters could be addressed in the forthcoming arbitration under the compulsory purchase order.
The judge said rerouting was no longer practical and declined to grant the requested relief. He made no order or declaration.