The Court of Appeal has dismissed Peter McNicholas’s appeal against an injunction preventing him from driving onto the N5 through a gap he created by demolishing a retaining wall. The injunction will remain in force pending the full trial of Mayo County Council’s action.
The dispute concerns local road 734NM, which once connected Mr McNicholas’s home and lands to the N5 near the Charlestown bypass at Cuilmore, Swinford, Co Mayo. The Council accepted that the local road had been taken in charge in 1977 and was a public road with a public right of way. Much of the road disappeared when the bypass was built.
The Council’s 2004 compulsory purchase order mistakenly described the road as a private access road with a private right of way. The order was confirmed by An Bord Pleanála. Although the Council served a notice to treat in 2005, the relevant part of Mr McNicholas’s lands had not been acquired, according to the judgment. He disputed that a notice of entry had been served; the Council’s engineer said one was served in February 2005. The court said the dispute did not defeat the Council’s arguable case at this stage.
After a dispute over the location and gradient of an accommodation road built for his premises, Mr McNicholas demolished the retaining wall beside the N5 in December 2013. He said he was using the route of the public right of way he contended had not been extinguished. The Council said the resulting access was irregular and dangerous, and installed bollards to block it.
The High Court granted an interlocutory injunction barring Mr McNicholas from using the exit onto the N5 or interfering with the bollards, pending trial. On appeal, the Court of Appeal held that the Council had shown a fair case to be tried: whether demolishing the wall, which the judgment described as Council property and part of a new public road, was unlawful. It also found that the balance of convenience favoured the Council and that damages would not be an adequate remedy, citing public safety concerns about the access.
The appeal was dismissed and the injunction continued. The court did not decide the underlying dispute over the public right of way or make a final finding that the wall’s demolition was unlawful; those matters remain for the full proceedings.