The Court of Appeal upheld an interlocutory injunction restraining Peter McNicholas from using an opening he made onto the N5 Charlestown bypass, interfering with bollards blocking it, or further interfering with the adjacent public road. The injunction applies pending the plenary trial of Mayo County Council’s action. The appeal concerned whether the Council had shown a sufficient case for that interim relief, not the final status of the disputed road rights.
The Council built the bypass between 2005 and 2007. It blocked the old local road, NM 734, which had provided access from Mr McNicholas’s home. The judgment records that the road had been designated public by a 1977 council resolution, but the Council’s 2004 compulsory purchase documentation treated it as a private right of way. The Council acknowledged that it had mistakenly classified the road and did not establish at this stage a statutory means by which the public right of way was extinguished.
The parties also disputed the status of a replacement access road. The Council said it was a public road under the Roads Act 1993 and had been dedicated for public use. Mr McNicholas challenged the access arrangements and argued that the old public right of way continued because the required process to extinguish it had not been followed. The judgment noted that the legality of the replacement access had been considered in earlier High Court proceedings, where declarations sought by Mr McNicholas and his wife were refused; that decision was under appeal.
On 19 December 2013, Mr McNicholas removed part of the wall blocking the old road to gain access onto the N5. The Court acknowledged the Council’s difficulty in showing how the right of way had been extinguished, but said the road’s physical layout raised a question about whether a right that could not be enjoyed could persist indefinitely. It also noted the potential road-safety hazard of an unauthorised opening onto a busy national route, and that the wall was Council property.
The court held that the Council had established a fair issue to be tried: whether Mr McNicholas was entitled to act as he did in purported defence of a public right. It considered the balance of convenience to favour an injunction and damages inadequate. The court did not finally determine the status of NM 734 or resolve the parties’ underlying rights. It said those disputes should be pursued through litigation or negotiation, and upheld the restraint pending trial.