Appeal dismissed; injunction upheld against unauthorized access to national road after wall removal.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 184

No. 2015/65

Ryan P.

Finlay Geoghegan J.

Hogan J.

BETWEEN/

MAYO COUNTY COUNCIL

PLAINTIFF/RESPONDENT

AND

PETER McNICHOLAS

DEFENDANT/APPELLANT

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 29th day of July 2015

1. This is an appeal from a decision of Gilligan J. in the High Court made on 29th January 2015 whereby he granted Mayo County

Council (“the Council”) an interlocutory injunction restraining the defendant, Mr. McNicholas, from availing of a local access road on to

the N5 national primary route. This is a case with certain unusual features which it is necessary first to set out. In essence, however,

Mr. McNicholas contends that there still subsists a public right of way which has not been extinguished which allows him to access

the N5 from the local access road in this manner. The Council contends in turn that the defendant removed a retaining wall

constructed alongside the N5 in 2007 and that he is thereby availing of a highly irregular access route onto the N5 which is dangerous

and is not sanctioned by the previous public right of way.

2. Mr. McNicholas lives immediately adjacent to the point where a local access road (734NM) intersects with the national primary road

N5 at the Charlestown bypass, Cuilmore, Swinford, Co. Mayo. It is not in dispute but that 734NM local road – which accesses Mr.

McNicholas’ dwelling and lands - was taken in charge by the Council in 1977 and that, prior to the events which gave rise to this

litigation, there was a public right of way in respect of this road. Save, however, for the stretch of local road which runs from the

defendant’s house to a retaining wall abutting the N5 – and which then blocked access onto the N5 until it was removed by the

defendant in December 2013 – the rest of the local road itself vanished following the construction of the new N5 by-pass route. In

fact, the new N5 route travels in the general north-westerly direction and bisects the original route of the old local road which

travelled in the general north-easterly direction. It is now necessary to describe how the new N5 by-pass route came to be

constructed.

3. The town of Charlestown lies several kilometres to the north of the by-pass at Cuilmore. As that town was clogged with major

traffic congestion, the Council decided that it was necessary to construct a by-pass. To that end the Council submitted the proposed

N5 Charlestown bypass roads development to An Bord Pleanála on 19th March 2004 pursuant to s. 51 of the Roads Act 1993 (“the

1993 Act”). As part of this exercise it was also necessary for the Council to acquire the lands necessary for this road development

and to extinguish the public rights of way which abutted or crossed the road development. Accordingly, shortly thereafter, the

Council submitted a further application to the Board to confirm a compulsory purchase order (“the CPO”) made on 25th February 2004

in accordance with the Third Schedule to the Housing Act (“the 1966 Act”).

4. The CPO described the lands to be acquired, but Part III, Schedule 2 of the CPO mistakenly described the 734NM local road (“the

local road”) as a private access road with a private right of way when it was, in fact, a public road with a public right of way. It is

this error which has, unfortunately, resulted in considerable confusion and indirectly given rise to the present proceedings. In effect,

therefore, by (wrongly) classifying the rights of way over the local road as private rights of way, the Council sought to have these

rights extinguished pursuant to s. 83(2) of the Housing Act 1966 (“the 1966 Act”). By contrast, had the lands been regarded as a

public right of way, the Council might have taken steps to have these rights extinguished under various statutory procedures

commonly used in the context of land acquisition for road development, namely, either s. 83(1) of the 1966 Act or s. 73 of the 1993

Act. The CPO containing this error was itself confirmed by the Board on 10 November 2004.

5. Although the Council served a notice to treat on 31 January 2005, it is agreed that the relevant portion of Mr. McNicholas’ lands

have in fact yet to be acquired. What is, however, in dispute is whether the Council served a notice of entry on the defendant

pursuant to s. 80 of the 1966 Act. Mr. McNicholas strongly disputes this in his affidavit, but the plaintiff’s senior engineer, Mr. Glancy,

is in turn emphatic that such a notice was served on 3rd February 2005.

6. In that affidavit Mr. Glancy further pointed to correspondence from the defendant’s then solicitors dated 23rd May 2005. In that

letter the solicitors stated that:

“Our clients are not in any way disputing the order made by An Bord Pleanála and are not preventing your clients in any

way from taking possession of the property to which you are legally entitled.”

7. While at the hearing of this appeal the defendant maintained that this letter had been sent without his authority, I do not think

that this Court can look behind that letter, at least for the purposes of the present interlocutory application. If there was, in fact,

such a notice of entry, then the Council would be lawfully entitled to enter onto the lands in question and to use the lands for the

purposes for which they were being acquired even prior to that ultimate acquisition.

8. It cannot be disputed but that the Council did in fact enter onto the lands and constructed a new access road and a retaining wall

which abutted the N5. Following a lengthy dispute with the Council regarding the location and gradient of the accommodation road to

his premises which was constructed as part of the by-pass the defendant took it upon himself in December 2013 to demolish the

retaining wall, despite warnings from the Council’s solicitors that this would constitute an unlawful act. Following the demolition of the

wall, the defendant asserted the right to drive directly onto the N5 from this unmarked and irregular access point on the ground that

he was simply following the route of (what he contended) was the unextinguished public right of way corresponding to the original

local road. Despite the protestations of the defendant to the contrary in the course of the appeal, the affidavit evidence of the

Council suggested that such an irregular access point presented a potentially serious traffic hazard. The Council subsequently

constructed bollards which served to block up this access from the local road on the N5 and sought the present injunction to restrain

the use of this access.

The High Court decision

9. In the High Court Gilligan J. granted the plaintiff an interlocutory injunction restraining the defendant “from using the exit which the

defendant has created from the public road at issue onto the N5 National Primary Route and/or from interfering with the bollards now

in situ preventing the use of the said exit pending the plenary trial of this action.” The defendant has now carried an appeal to this

Court against the making of this order.

10. The tests to be applied in a matter of this kind are not in doubt. The plaintiff must establish a fair case to be tried, demonstrate

that the balance of convenience is in its favour and show that damages would not be an adequate remedy: see Campus Oil Ltd. v.

Minister for Industry and Commerce (No. 2) [1983] I.R. 82. One may say immediately that the second and third limbs of the test

have been readily satisfied by the Council. There are certainly grounds for concern that the unauthorised access route created by the

defendant presents real public safety concerns. While these concerns have been disputed by Mr. McNicholas, it seems to me that this

is a consideration which cannot readily be dismissed, at least at this juncture prior to the full hearing of the matter. In that situation

damages would plainly be an inadequate remedy. The question as to whether the Council has in fact established a fair case is,

however, a more troubling one.

Whether the Council has established the existence of a fair case to be tried

11. It cannot be disputed that the Council has in fact utilised the compulsory purchase procedure and has thereby entered into

possession of the defendant’s lands which are proposed to be acquired. Indeed, the Council has served a notice of entry pursuant to

s. 80 of the Housing Act 1966. As I have already noted, this was acknowledged by the defendant’s former solicitors by letter of the

23 May 2005 in which they further stated that their clients were not preventing the Council “in any way from taking possession of the

property to which you are legally entitled." The fact that the service of the notice of re-entry and the authority of the solicitors to

write the letter is now disputed does not defeat the existence of an arguable case or issue should be tried.

12. The Council subsequently engaged contractors who built the new bypass in accordance with the planning permission which had

been obtained. These construction activities extended to at least part of the lands being acquired pursuant to the compulsory

purchase order. The construction also included the new N5, a new access road for the defendants and a retaining wall between the

new access road and the N5 as thus reconstructed.

13. In such circumstances I find myself obliged to admit that although the Council acknowledges that the old access road 734NM was

a public road (which was also in part demolished), it can nonetheless point to the existence of an arguable case to the effect that

the demolition by the defendant of the wall (which is the property of the Council) built adjacent to and forming part of a new public

road is unlawful.

Conclusions

14. Since there is no doubt but that the balance of convenience favours the Council and as damages would plainly be an inadequate

remedy, then as the Council has established the existence of a fair case to be tried – namely, whether the demolition of the wall was

unlawful – it follows that in the circumstances I would grant the Council an interlocutory injunction which prevented the defendants

from accessing the N5 national primary route through the gap which had been created by the demolition of the wall.

15. It is for these reasons that I would continue the interlocutory injunction granted by Gilligan J. I would accordingly dismiss the

appeal.