The Supreme Court has rejected John Conway’s application for State-funded legal assistance to pursue an appeal over changes to the A1/N1 road link between Dundalk and the border. It held that his claim did not engage the Aarhus Convention or the EU Public Participation Directives, and therefore did not decide whether those measures could require legal aid in other environmental cases.
Mr Conway sought an order requiring Ireland and the Attorney General to meet legal expenses for his appeal. The appeal followed the striking out of proceedings that sought, among other things, to have part of the route designated as a motorway and portions of the old N1 restored. He also sought orders concerning ratification of the Aarhus Convention and assistance from legal, engineering and quantity-surveying experts.
The proceedings began in 2007. An Bórd Pleanála had approved the road project in 2003 after an oral hearing at which Mr Conway made submissions. Work to fill in part of the old road began in June 2007 and was substantially complete by the time proceedings were issued. The Supreme Court judgment records no evidence that the works departed from the planning permission.
The High Court struck out the proceedings. It treated the roadworks claim as an impermissible late collateral challenge to the planning decision, and held that the claim seeking ratification of the Convention could not succeed under the Constitution. Ireland ratified the Convention in 2012. Mr Conway appealed in 2010 but took no steps to advance the appeal; in 2014, the State applied to have it dismissed for want of prosecution, prompting his legal-aid application.
In a judgment delivered by Justice Clarke on 24 February 2017, the Supreme Court considered whether the claim could fall within Article 9(3) of the Convention, which concerns acts or omissions alleged to breach national environmental law. It found that the claim, even read generously, did not identify a specific environmental-law breach or an omission by a public authority. The claim instead argued for a different road design on efficiency and road-safety grounds. The Court said the approved scheme could not be challenged indirectly in these proceedings, and no legal obligation to adopt Mr Conway’s alternative had been established.
The Court also noted that no basis had been identified for bringing the claim within Article 11 of the EU directives. It concluded that neither measure was engaged and declined to address the wider legal-aid questions, including whether public funding might be required in a case that did fall within their scope. The judgment does not determine those questions for other cases.