The High Court has kept in place a stay on works to realign a public road in Bunbeg while Kathleen Coll’s judicial review of Donegal County Council’s decision to extinguish a public right of way proceeds. The court did not decide the judicial review itself or lift the stay in full; it said it would hear the parties on what preliminary works could go ahead.
The case concerns a council motion passed on 29 May 2006 to extinguish the public right of way at Strand Road, Bunbeg. The extinguishment was required by a planning permission condition for a filling station and supermarket at the junction of Strand Road and Bunbeg Road. Liam Gillespie is the notice party to the proceedings.
The council asked the court to vary the terms of leave for judicial review, require Coll to provide an undertaking to pay damages, and order her to provide security for costs. The council’s application relied in part on an earlier unsuccessful judicial review by Coll concerning an earlier decision to extinguish the right of way. Costs had been awarded against her in those proceedings, and an affidavit said she could not pay them. The council also argued that delay was causing significant financial consequences for the development.
Justice Dunne refused security for costs. She said there was no authority supporting such an order against an individual in these circumstances and no basis to make one at that stage. She also declined to require an undertaking as to damages, including a secured undertaking. Although she considered an unsecured undertaking from Coll would be of no value, she found the claim concerned a public law matter and was not satisfied that using an applicant without means was a deliberate tactic amounting to abuse of process.
On the stay, the judge said the applicant had shown arguable grounds by obtaining leave, but she would not assess the relative strength of the parties’ cases at this stage. She accepted that Gillespie had experienced considerable delay and further expense and losses. However, because the stayed works concerned realignment of the public road, she found the balance of convenience favoured Coll and declined to lift the stay in its entirety.
The judgment ended with the court to hear further submissions on the extent of preliminary works that could be carried out before the judicial review hearing. It did not specify what works, if any, would be permitted.