The High Court refused a resident’s application to have Ballyburn Road at Castledermot, County Kildare, restored after road works linked to a quarry development. Mr Justice Hedigan ruled on 25 January 2012 that the relief sought would be disproportionate, given the evidence and the applicant’s delay in bringing the case.
Keith Smyth had applied under section 160 of the Planning and Development Act 2000 for orders requiring Dan Morrissey Ireland Limited to stop unauthorised development, comply with the planning permission, or restore the road to its earlier condition. The requested restoration would have involved digging up and realigning the road and changing its level and width.
An Bord Pleanála granted planning permission for the quarry in August 2007, subject to 29 conditions. One condition required road improvements, including a footpath between the quarry entrance and Prumplestown Crossroads, before permitted works could begin. The plans showed a footpath in front of Smyth’s home and a road 6 to 6.5 metres wide there.
The judgment records that the respondent offered €150,000 for a two-metre strip in front of Smyth’s house to allow the road to be widened; Smyth declined. The respondent then acquired land across the road and built the footpath on that side. The completed road was 7.5 metres wide and 0.2 metres higher. Smyth argued that the missing footpath and reduced verge impaired visibility when leaving his property, and that the road surface and elevation also departed from the permission.
The company disputed Smyth’s account and said any planning deviations were minimal. It argued that Kildare County Council controlled and supervised the road works, and that the requested reconstruction would be costly and affect road users. Those were submissions by the respondent, not findings that the road complied with every planning condition.
The judge found the applicant’s evidence unsatisfactory. He noted that the planning permission did not specify a footpath width and that the roads department’s two-metre recommendation was not included in An Bord Pleanála’s permission. The respondent’s engineer’s evidence that deviations were minimal had not been challenged in cross-examination. The council was not joined to the case, and the court had no evidence of its position; the judge said he assumed it knew the road’s condition because it applied the final surface.
The court also considered that Smyth had not made a formal complaint to the council and had not satisfactorily explained why, despite a complaint to an area engineer. He first wrote to the respondent about obtaining an engineering report in May 2009; the court application issued in June 2010. The judge further accepted evidence that removing overgrown plants in front of the house could improve sight lines and concluded that reconstructing the road would be wholly disproportionate. He refused all relief sought.