Leave granted for disproportionate impact and lack of reasons challenge against bus stop planning decision.

[2024] IEHC 364

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000297]

BETWEEN

ÁINE KELLY

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

NATIONAL TRANSPORT AUTHORITY

NOTICE PARTY

JUDGMENT of Humphreys J. delivered on Wednesday the 19th day of June, 2024

“This is what I envisage for my future for the rest of my life. Again, remember that I have

no front garden, and my front door opens directly onto the path where the bus stop will be

situated. Never again being able to challenge anyone who is standing directly outside my

front door, no matter what hour of the day or night it is; coming home from work in the

dark, which in winter is the early evening, having unknown strangers standing outside my

front door, without any means for me to challenge their presence; putting my key into my

front door and opening the door with strangers standing beside me. If anyone wishes ill

intent on me or my property, they won't have to break in; I will be opening the door for

them. It is simply unacceptable for Aidan Gallagher and for the staff with the decision

making powers in the NTA and An Bord Pleanála to be placing me and my neighbours in this

situation, a situation, I hazard to guess, that they would not accept for a second if it affected

their own homes and families, when all they need to do to prevent this is to make a minor

adjustment to the plans to move the bus stop a short distance from its proposed location.”

[Applicant’s submission at the leave hearing, p. 21]

1. The applicant challenges a board decision authorising the erection of a bus stop directly

outside her front door, which opens directly onto the footpath with no garden, path or other buffer

zone. The applicant’s concerns were arguably swept aside in minimising language by the board and

held to be outweighed by the importance of the scheme. The central issue is whether the applicant

has shown substantial grounds to proceed with a challenge based on arguments related to

disproportionality and lack of reasons.

Geographical context

2. This leave application concerns the Clongriffin Scheme which is a public transport

infrastructure project comprising 5.7 km of bus priority infrastructure and ancillary traffic

management, together with 11.9 km of cycling infrastructure and facilities and the provision of new

and refurbished pedestrian facilities and associated works including upgrading of junctions,

reconfiguration of existing bus stops and public realm improvements and works, in the urban and

suburban north of Dublin City between Clongriffin and the city centre.

3. The contested part of the development occurs near the applicant’s house in the Malahide

Road area. On the inbound (city-bound) route the proposal is to remove two bus-stops in this area

and add a new stop, directly outside the applicant’s front door with no garden or other space acting

as a buffer zone. On data minimisation principles, there is no particular need to identify the street

or address more specifically.

Facts

4. Changes to bus arrangements on the Malahide Road have been in train for some time. The

applicant wrote to the Quality Bus Network design team as far back as 12th June 2006 expressing

some concerns.

5. Twelve years later, following the announcement of the Bus Connects strategy, she wrote to

public representatives outlining her views on 12th June 2018.

6. On 14th November 2018, the NTA launched a first round of non-statutory public consultation

on the Emerging Preferred Route Option for the Clongriffin to City Centre Core Bus Corridor Scheme.

Published drawings showed Existing Bus Stop 1220 (albeit relocated 15 m southwest) as that existing

bus stop was not proposed for removal at that time. In error, Existing Bus Stop 1219 was omitted

from the drawings. At that point, it was not proposed to place the Bus Stop at the location which is

now proposed.

7. The applicant is sceptical about the claim that the omission of existing bus-stops from the

first and second consultations was really accidental error. But that complaint hasn’t been developed

evidentially.

8. The applicant put forward a submission on 26th November 2018 (although for some reason

the NTA don’t have a record of this):

“26 November 2018 at 18:29 To: Project manager, Bus Connects (TDs and Councillors

cc'ed). I am writing on behalf of myself and my neighbours at [the street concerned],

Malahide Road, regarding the emerging preferred route for the Clongriffin to city centre bus

route.

I have previously contacted you via my public representatives (cc'ed here), expressing my

concern that any potential changes to the road layout would involve narrowing the footpath

in front of our houses. Having viewed Map 15 of the proposed route, it appears that you are

suggesting to take some of the footpath to widen the road in front of our houses.

As a first question, may I ask whether that is in fact the plan? I would appreciate clarification

on whether or not you propose to remove any of the footpath in front of our homes, since it

is not quite clear from the drawings.

I outline below my objections to any narrowing of the footpath in front of the houses at [the

street concerned].

1. There are no gardens in front of our houses, hence our front doors open directly onto the

footpath. Narrowing the footpath means that traffic on one of the busiest roads in the city

will pass even closer to the front of our properties.

2. This poses a grave safety risk to pedestrians and residents. In our experience, cars have

accidentally mounted the footpath on occasion. A truck mounted the path and demolished

the front wall of my home when turning the corner from the Kilmore Road junction too

sharply, when the house was occupied by the previous owner in the 1980s.

3. Many of the residents of the cottages are elderly people, some of whom have lived in their

homes for many years. They have expressed to me their very great fear of having traffic

brought closer to their homes.

4. Rear vehicular access to our properties is via a laneway barred by gates to which residents

have keys. In order for us to park to the rear of our properties, we must temporarily park

perpendicular to the road an open the gates manually. As it is, there is not enough room to

park a standard sized car safely while opening the gates. Narrowing the path will mean

leaving a sizeable part of the rear of the car blocking the bus lane, again posing a safety

risk.

5. As it is, proximity of traffic generates much dirt and debris on the footpath, particularly

in wet weather, that finds its way into our properties through doors and windows and affects

the air quality - this would be much worse if the footpath is narrowed.

6. There is ample space at the other side of the road at St David's Wood to carry out the

works there. This will not require purchase of land or inconvenience to anyone else, since

the path is bordered by publicly accessible grassy areas that I assume are owned by Dublin

City Council. I see from the maps that you propose creating a new boundary here in any

case - may I suggest that all of the road widening makes use of this footpath, and that if

necessary the footpath can be extended backwards into this grassy area?

A proposal to narrow the path was mooted in 2006. At that time, I wrote to Mr Ciaran de

Burca, the project manager, outlining the concerns I expressed above. A decision was made

not make significant changes to our path - I assume because the planners were convinced

by my arguments about safety and welfare. I suggest that that should still be the case. The

wording of that decision is below.

‘The Quality Bus Network Project Office has noted the objections raised by the residents of

[the street concerned] in relation to proposals to reduce the width of the footpath outside

their houses. The Quality Bus Network Project Office has prepared a revised layout for this

section of the scheme which minimises the impact on the footpath on the east side of

Malahide Road outside the [the street concerned]. The majority of the road widening will

take place on the west side of Malahide Road between St. Davids Wood and Kilmore Road.’

I support in principle the Bus Connects project. As a daily Dublin Bus user I welcome any

improvement to the safety and efficiency of the public transport network, but not at the

expense of the safety or wellbeing of the residents of Dublin. I would hope that the general

goodwill about the project is not marred by proposals that would diminish the quality of life

of myself and my neighbours and our enjoyment of the homes that many of us have lived

in for decades. If any proposal is made that will compromise the safety of my home or those

of my neighbours, I will oppose it in the strongest possible terms.”

9. This email wasn’t formally exhibited although the opposing parties didn’t strongly press any

point about that. That can be rectified if the matter goes further.

10. On 11th December 2018, the first Community Forum meeting for the Clongriffin to City

Centre Core Bus Corridor took place at the Hilton Hotel, Malahide Road with approximately 20 people

in attendance including the applicant.

11. On 10th January 2019, a public information event was held in relation to the Clongriffin

Scheme at the Hilton Hotel, Malahide Road where members of the public could drop in to view

information about the Emerging Preferred Route and ask questions of the BusConnects Infrastructure

team.

12. The applicant copied her 2018 submission to public representatives by email on 21st

February 2019.

13. 29th March 2019 was the deadline for submissions for the First round of non-statutory public

consultation on the Emerging Preferred Route Option for the Clongriffin Scheme.

14. On 11th September 2019, a community forum for the Clongriffin to City Centre Core Bus

Corridor took place in the Hilton Hotel, Malahide Road. There were approximately 15 in attendance

including the applicant.

15. A second round of non-statutory public consultation commenced on 4th March 2020 in

respect of the Preferred Route Option. In error, the drawings published in respect of the Preferred

Route Option did not identify Existing Bus Stops 1219 or 1220. At that time, it was not proposed to

place the bus stop at the location which is now proposed.

16. On 11th March 2020, a public information event was held in the Hilton Hotel, Malahide Road

in relation to the Preferred Route Option. The public could drop in to view information and ask

questions to the BusConnects Infrastructure team in relation to the Preferred Route Option.

17. The deadline for submissions for the second round of non-statutory public consultations on

the Preferred Route Option was 17th April 2020.

18. On 4th November 2020, the third round of non-statutory public consultation was launched

in respect of the Preferred Route Option. Existing Bus Stops 1219 and 1220 were not shown on the

drawings published as part of the third round of public consultation.

19. The applicant wrote on the same date seeking information on the proposals in relation to

the pavement at her house.

20. On 17th November 2020, the NTA replied referencing an intention to only provide for an

upgrade. The applicant takes issue with the accuracy of this given what later emerged.

21. On 18th November 2020, a community forum was held online via Zoom in relation to the

Clongriffin to City Centre Core Bus Corridor. Approximately 15 people were in attendance including

the applicant.

22. On 16th December 2020, the third round of non-statutory public consultations on the

Preferred Route Option closed.

23. The application for approval was submitted by the NTA to the board on 1st April 2022,

including an EIAR, a Bus Stop Review Methodology statement and Bus Stop Review Analysis as

Appendix H to the Preliminary Design Report. The application included the proposed new bus stop

outside the applicant’s house.

24. Public notices were issued and formal submissions were invited under the Roads Act 1993.

25. On 6th April 2022, the NTA wrote to the applicant enclosing the proposal to make a CPO in

relation to part of a lane in respect of which the relevant residents had an interest.

26. On 7th April 2022, a newspaper notice was published by the NTA in the Irish Independent

and the Dublin Gazette in accordance with section 51(3)(a) of the Roads Act 1993 notifying the

public of the making of the development consent application. It was outlined that the documents

were available for public inspection and that submissions could be made to the board by 2nd June

2022.

27. Another newspaper notice was published on the same day by the NTA in the Irish

Independent and the Dublin Gazette in accordance with s. 76 of the Housing Act 1966 notifying the

public of the CPO. The documents were made available for public inspection and it was outlined that

objections could be made to the board by 2nd June 2022.

28. On 8th April 2022, an application was made by the NTA to the board for confirmation of the

Clongriffin to City Centre Core Bus Corridor Scheme CPO 2022 under s. 76 of the 1966 Act.

29. On 10th May 2022 the board received a submission from the residents of [the street

concerned], which residents’ group included the applicant. The submission is described by the board

as a submission of “Anna Hofheinz & Ors”. The submission includes the following:

“An Bord Pleanála

Strategic Infrastructure Division

64 Marlborough Street

Dublin 1 D01 V902

Dublin, 10-05-2022

RE: Objection to Application for Approval of a Proposed Road - CLONGRIFFIN TO CITY

CENTRE CORE BUS CORRIDOR SCHEME – at [the street concerned], by the National

Transport Authority, Case Ref. HA29N.313182

Dear sir, madam,

[A]s residents and owners of properties on [the street concerned], Malahide Road, Dublin 5,

we would like to submit our strong objection to the location of a new bus stop in front of the

terrace of houses at [the street concerned] as part of the proposed development above.

1. Physical Context – [the street concerned]

The terraced single storey houses on [the street concerned] (approx 140m length) are the

oldest remaining buildings on this stretch of Malahide Road (dating back to the mid to late

1800s). They were built as smallholdings for tenants by Dublin Corporation and are the only

visible remnants of Artane’s history as a village on the outskirts of Dublin. They are now

unique along the length of the above scheme, in their situation directly on the road, without

the benefit of front gardens. All houses apart from no. 10 (now a two-storey mixed use

building of shops with apartments over) remain in residential use, and are suffering from

severe noise, air and light pollution due to the high volume of traffic on Malahide Road, as

well as from the lack of privacy due to high footfall along the footpath.

The EIA associated with the above application by the NTA to An Bord Pleanála identifies the

terrace as being of ‘medium regional significance’ (refer EIA Appendix A16.2 p. 30) and finds

that the proposal as submitted will cause negative long-term impact (refer fig. 1). We note

that [the street concerned] are the only ‘Other Structures of Architectural Heritage Interest’

(EIA, Chapter 16.4.4.4) negatively impacted along the entire scheme: ‘1-12 [the street

concerned] (CBC0001BTH013) where a new bus-stop is proposed in front of numbers 5 and

6, and cantilevered signals are proposed controlling the junction opposite Number 9. The

cottages are of Medium Sensitivity. The proposed new structures will have an adverse visual

impact on the setting of the terrace, the magnitude of which is Low. The potential

Operational Phase impact is Negative, Slight and Long-Term.’

We do not share the EIA’s assessment that the impact is slight. The further impact (beyond

architectural heritage) on residential amenity is not reflected anywhere in the EIA, and it is

not demonstrated how the NTA intends to mitigate against the negative longterm impact.

The impact on residential amenity is direct, severe and long-term if the proposed bus stop

is implemented in its currently proposed location and form. The architectural integrity of

the terrace at [the street concerned] is under threat already due to the pressures of a busy

arterial road on what historically were rural cottages. The lack of effort on the side of the

NTA as applicant to mitigate issues identified in the Architectural Heritage Impact

Assessment (fig. 1) shows a lack of respect for architectural heritage. The bus stop increases

pressures on those properties further and undermines efforts by the undersigned residents

to maintain the houses occupied and in their original character. We call on the NTA to

improve the residential amenity for residents at [the street concerned], and to work with

the residents during the implementation phase to lessen the impact that even a revised

scheme that relocates the bus stop away from the terrace would have on the buildings and

their occupants (refer section 4). …

2. Preferred Route Option development history

The scheme has been re-designed multiple times during its public consultation stages,

leading up to the submission to An Bord Pleanála now. We welcome that the Bus Connects

preferred route was re-designed between public consultations 1 and 2 to maintain the

footpath outside [the street concerned] (the only buffer between the road and the houses),

including the added distance to the carriageway by virtue of the segregated cyclepath,

and to introduce cycle / foot paths on the green verge on the (northbound) western side of

the road.

‘It is important to note that existing bus stops located along the Core Bus Corridors will have

been subject to considerable thought by Bus Operators, An Garda Siochana, and the Local

Authority. For this reason, it is imperative that each location is closely examined before it is

considered for relocation or removal.’ (Preliminary Design Report, Appendix H, p.1)

In the development of the Preferred Route Options, there is no evidence of such careful

consideration prior to proposing the removal of 2no. bus stops directly north and south to

the now proposed location:

The bus stop Danieli Road (1219) was removed prior to consultation 1.

Between consultations 1 and 2, a previously revised bus stop Killester Avenue (1220) was

removed, both crucially without replacement or an amalgamated new stop north or south of

map 15, refer fig. 2 and 3. …

Between consultations 2 and 3, the scheme was fundamentally re-designed between Kilmore

Road and Killester Avenue to include a new bus stop at [the street concerned]. This however

is only apparent in the detailed drawings (refer fig. 4).

The written report, which is the primary document for any non-technical person, does not

mention those changes. The public consultation brochure for consultation 3 (Preferred Route

Option Report, Appendix I) is in fact grossly misleading in its summary at 4.4 Gracefield

Road and Clontarf Road Malahide Road, and 4.5 Key Changes. While the proposal is

described in apparent detail in these sections, none of them mention an additional bus stop

at [the street concerned].

Elsewhere in the submitted documentation, stops Danieli Road (1219) and Killester Avenue

(1220) are listed as being removed ‘due to proximity with the new Kilmore Road Stop’.

(Preliminary Design Report, Appendix H, p. 44 of 52, Location Review). As demonstrated

above, this is factually incorrect and again misleading, as the new Kilmore Road Stop was

only introduced retrospectively in advance of consultation 3, while the other stops had been

removed prior to consultations 1 and 2 respectively.

‘Where existing bus stops on a route are in close proximity to each other they may be

amalgamated into a single stop. This must be assessed on a case-by-case basis.’ (Appendix

A4.1 - Preliminary Design Guidance Booklet for BusConnects Core Bus Corridor, section 11.

Bus stops)

No such assessment has been made public, and no details of alternative proposals are

available. Neither had the previous omissions of stops 1219 Danieli Road and 1220 Killester

Avenue triggered an amalgamated new stop until after consultation 2. It is also worth noting

that in the revisions of the Preferred Route Options up to consultation 3, no other bus stops

were added or removed anywhere along the line, with only minor adjustments or re-locations

made to some stops. We maintain that such a major and impacting change should have

been highlighted in consultation documents and directly to the impacted residents. This has

not happened, and it could be understood that the omission of such a relevant detail in the

written report may have been intentional to avoid complaints or objections. Despite this,

there have been multiple observations at consultation 3 of residents noting the unacceptable

design and location of the bus stop (refer Preferred Route Option Report, Appendix C, p. 46-

48), none of which have been addressed in the submitted proposal.

The final drawings lodged with the application (refer fig. 5) are broadly in line with

consultation 3, with an apparent slight improvement on the footpath width at [the street

concerned] (which had silently been narrowed again between consultations 2 and 3), and

further detail shown at the bus stop, refer to item 3 of this submission. …

3.3. Compromised proposed location

‘The basic criteria for consideration when locating a bus stop are as follows: (...)

• Where there is space for a bus shelter; (...)

• Adequate footway width.’ (Preliminary Design Report main report, p. 45) "(...) the size of

the stop needs to be sufficient to meet the expected passenger and bus demand, and the

bus stop itself must not become a bottle neck to the operation of the corridor.(...) (The

Preliminary Design Report, Appendix H, p.1)

Even though the NTA criteria are extremely limited in that they only consider the physical

constraints and traffic planning, we demonstrate in our submission that the proposed bus

stop location is in contravention to NTA’s own criteria, in addition to comments at 3.1 and

3.2. above.

The proposed bus stop is the only one along the entire length of the Clongriffin to City Centre

bus corridor scheme located in front of residential property without front gardens, and does

not provide space for a bus shelter, nor does it provide adequate footway width to

accommodate even a compromised stop.

The residents of [the street concerned] are already dealing with privacy issues due to the

proximity of the footpath, such as people shouting outside the (bedroom) windows, knocking

on windows and sitting down on window cills. These concerns are not taken into account.

However, a scheme in this constrained situation that - if successful - will increase the number

of bus users, will worsen the situation, especially for properties without any possibility to

privately react to this negative impact, is unacceptable: It is not an option here to densely

plant a front garden or erect a tall gate and boundary wall to the front. Bedrooms and living

rooms open out directly onto the footpath, often with the only window. It is the duty of the

local authority and the National Transport Authority to protect such properties and their

residents and if possible improve their amenities, or at least not worsen the arrangement.

We note that none of the Impact Assessments submitted with the application take note of

this severe, ongoing negative impact.

The bus stop is located less than 25m from the proposed controlled pedestrian crossing to

Kilmore Road, at a junction where two bus lines (from West on Kilmore Road, from North on

Malahide Road) converge. This will likely lead to busses backing up north and west of the

junction, which in turn will lead to busses backed up in front of nos. 7, 8 and 11 [the street

concerned], resulting in increased noise and air pollution, as well blocking out light to those

properties. This appears contrary to proper traffic planning and will further reduce residential

amenity of the entire terrace, and constitutes a bottle neck along the bus corridor.

In this context, we object also to the local narrowing of the footpath at the junction to

accommodate a right turn hold for the cycle path (refer Preliminary Design Report, Appendix

L, p. 40 of 68) – the proposed layout leaves less than 1.8m footpath, compared to currently

approx 3.5m, directly in front of the front door of no. 9 [the street concerned]. This is in

direct contravention to the commitment by the NTA to retain the full width of the footpath.

In addition to undue increased pressure on the residential amenity of no. 9, it also diverts

any pedestrian footfall closer to the front elevations to the terrace than a continuous 3m

wide footpath would do. Any right turn arrangement for inbound cyclists onto Kilmore Road

could conceivably be accommodated at the much wider footpath in front of no. 10 [the street

concerned], allowing for example a two-way cycle lane on the northern and western arm of

the junction, or a revised cycle crossing layout on the southern arm.

Note: this issue is independent of a relocation of the bus stop as argued elsewhere, and

should therefore be identified by way of a separate condition by An Bord Pleanála.

3.4. Alternative locations As demonstrated above, the proposed design and location is of a

lesser quality than both stops 1219 and 1220 currently. The proposal effectively replaces

two bus stops in front of wide footpaths and front gardens (1219: 14m footpath in front of

commercial property, 1220: 5m footpath plus 14m front garden to residential property) with

one bus stop with a 3m foot path outside residential properties without front gardens.

Both at the terrace of commercial properties at 25a-g Malahide Road (stop 1219 previously

outside 25G Malahide Road) and at 276 – 302 Malahide Road (stop 1220 previously outside

282 / 284 Malahide Road), there would be sufficient depth of the footpath / public realm to

introduce island bus stops fully in line with the stated preferred NTA bus stop design, refer

fig. 7.

A revision of bus stop 1219 south by approx. 30-50m to in front of 25a Malahide Road would

bring the distance Mornington Grove 1277 to Danieli Road to longer than 250m. In this

scenario, stop 1220 could be retained in its current location, and all distances southbound

would be within the proposed range as at 3.1.

If it was not deemed feasible to retain stops 1219 and 1220, the proposed new stop could

be relocated: The footpath widens a mere 65m south of the proposed bus stop, at nos. 302

/ 300 Malahide Road, to approx. 8m deep. The properties here have front gardens in excess

of 15m depth. The location would allow for adequate detailing of the bus stop (again fully in

line with details in fig. 7) and appropriate congregation space for people waiting for busses.

This, possibly in tandem with a relocation of stop 1277 south towards Danieli Road, would

achieve acceptable distances comparable to the proposed.

‘Another important aspect of bus stop positioning is proximity to pedestrian crossings.

Failure to provide high quality pedestrian facilities on the pedestrian desire line may lead to

a higher accident risk associated with a bus stop. Therefore, designers need to consider how

passengers are going to cross the road to get access to the stop, in general this will require

bus stops to be located close to safe crossing points.’ (Preliminary Design Report, Appendix

H, p.8)

The NTA proposal at [the street concerned] limits its considerations only to absolute

proximity to the pedestrian crossing. As above, if the stop was located 65m further south

where the footpath widens, the only pedestrian desire lines would be straight north towards

Kilmore Road (towards the pedestrian crossing) and south towards Killester Avenue, as there

is no permeability directly opposite to the west into St. David’s Wood and Pinebrook Road

residential estates (as noted before, there is no proposal by the NTA to improve permeability

here). The minimal improvement with regard to proximity to the crossing is disproportionate

to the negative impact on [the street concerned] and the bad bus stop design (refer section

3.2. of this submission).

The NTA proposes multiple bus stops with distances in excess of 50m to the nearest

pedestrian crossing, and only stops in excess of 100m from a junction (refer Kilmore Rd

outbound, Preliminary Design Report, Appendix L, p. 40 of 68) were relocated to be in line

with the criteria (refer Preliminary Design Report, Appendix H (Bus Stop Review

Methodology), p. 42-46 of 52 Location review). A relocation of the contested bus stop

outside [the street concerned] to 302 / 300 Malahide Road could still remain within the 100m

distance.”

30. 2nd June 2022 was the deadline for submissions and objections to made to the board in

relation to the s. 51 application and the CPO.

31. On 23rd June 2022, a letter was sent from the board to the NTA enclosing copies of the EIA

submissions, including submissions listed by the board as “Anna Hofheinz & Others” which was

signed by the applicant, requesting the NTA to make any submissions or observations that they

might have in relation to the submissions.

32. On the same day the board sent another letter to the NTA which enclosed copies of the

objections to the CPO (including the same submissions as noted above but which was also included

in this CPO bundle and marked by the board in their list as Áine Kelly) requesting the NTA to make

any submissions or observations that they might have in relation to CPO objections.

33. The NTA submitted a response document on 21st July 2022. That considered alternative

locations for the bus stops including no change:

“Scenario 1: Retain existing bus stop locations at Danieli Road (1219) and Killester Avenue

(1220) and avail of the wide footpaths in these areas …

Scenario 2: Relocate the Danieli Road stop (1219) 30-50m south and retain the Mornington

Grove Stop (1277) and Killester Avenue stop (1220) in existing locations …

Scenario 3: Remove the Danielli Road stop (1219) and the Killester Avenue(1220) stop and

provide a new bus stop outside 302/300 Malahide Road using the existing Mornington Grove

Stop (1277) or relocate the Mornington Grove Stop (1277) to accommodate a revised

spacing arrangement between bus stops.”

34. These scenarios are analysed as follows:

“The NTA welcome the understanding from the submissions regarding the importance of

spacing of bus stops along the corridor.

Scenario 1 does not perform as well as the Proposed Scheme against the bus stop review

criteria. Due to the close proximity of stops, this offers limited benefit for additional

catchment area as a result of the overlapping zone of influence and is likely to result in

increased delays due to dwell time (boarding/alighting) including speed reduction at each of

these stops which could compromise overall journey times for buses along the corridor.

Scenario 2 does provide an improvement from Scenario 1 by rationalising the distances

between stops, however this has a less effective catchment area from Kilmore Road by

comparison to the Proposed Scheme arrangement which is of particular importance in light

of the bus routing change on Kilmore Road as set out in Figure 2.3.6.

Similarly, Scenario 3 does provide an improvement from Scenario 1 by rationalising the

distances between stops, however this has a less effective catchment area from Kilmore

Road by comparison to the Proposed Scheme arrangement. Both Scenario 2 and Scenario 3

would also need to consider the impacts on the outbound services. As set out above, one of

the basic criteria in considering a location for bus stops is locating them in pairs on opposite

sides of the road. The Proposed Scheme achieves this using the Kilmore Road junction to

provide pedestrian crossing facilities. These bus stops have been specifically located

downstream of the Kilmore Road junction to optimise junction interaction for adaptive bus

signalling measures resulting in a lower impact on speed and capacity as well as increased

safety for passengers (crossing the road behind the bus, facing oncoming traffic).

Thus, relocating the bus stop to 302/300 Malahide Road would potentially require a mid-

block pedestrian crossing and modifications to the outbound bus stop location. The other

potentially prohibitive challenge for siting the bus stop at 302/300 Malahide Road would be

physically installing the bus stop platform between vehicular driveways for properties at this

location. The submissions have proposed to use the larger island as per Figure 34 in

Appendix A4.1 which notes a 25m typical bus platform length. This arrangement will be very

challenging to be accommodated at 302/300 Malahide Road without impacting vehicular

access to properties. The location of the bus stop as set out in the Proposed Scheme does

not conflict with any existing driveway entrances.

For these reasons, the location of the bus stop in the Proposed Scheme, as shown in Figure

2.1.10, is considered to be the optimum location when assessed against the key bus stop

review criteria listed above and deemed to provide better alignment to the scheme

objectives.”

35. A second statutory consultation took place in June 2023, whereby the public were given an

opportunity to make submissions on the Response Document.

36. A further submission was made to the board by the residents of [the street concerned] dated

3rd July 2023, which included the following:

“To:

An Bord Pleanala

64 Marlborough Street

Dublin 1

D01 V902

3rd July 2023

RE: BusConnects Clongriffin to City Centre Core Bus Corridor Scheme, County Dublin

Case Numbers: ABP-313182-22 / ABP-313279-22

We appreciate the opportunity to comment further on the NTA's response to our submission.

We are disappointed that the NTA has not responded fully to our concerns, and implore An

Bord Pleanala to make clear instructions to the NTA regarding the scheme in line with our

concerns set out below.

There are three major points that we want to make in this response - first, the history of our

engagement with the NTA and our frustration that our most serious concerns are being

ignored; second, to reiterate the impact that the plans will have on the local community,

which was not addressed in the NTA response; and third, to reiterate the impact that the

plans will have on us as residents, which was not addressed in the NTA's response.

1. Engagement with NTA

The residents of [the street concerned] have been involved in discussions about the

BusConnects project throughout the lifetime of the project and have engaged with the NTA

in good faith, hoping that our concerns would be listened to.

A representative of the residents (Aine Kelly) attended the first community forum event on

11th December 2018, where she outlined our objections to the proposed narrowing of the

footpath as part of the initial design. She spoke personally with the NTA representatives

Hugh Creegan, John Fleming and Con Kehely, ensuring that they were aware at the earliest

opportunity of the unique vulnerability of our homes, which open directly onto the footpath.

One of the 3 action points listed in the Community Forum Report was to review the footpath

width outside the cottages.

She attended the next Community Forum Event on 11th September 2019, again to highlight

the potential compromise of safety and privacy resulting from the project design that are

unique to our homes. Two of the 3 action items from that event listed in the Community

Forum Report were to (i) review pedestrian arrangements and (ii) to review enforcement

requirements along the route, both of which pertain to our concerns. We were pleased that

the NTA responded to our concerns by abandoning the proposed footpath narrowing, taking

this as an indication that they understood the implications of such a proposal and that they

were willing to engage with us in good faith.

At no stage during these discussions was the insertion of a bus stop directly outside the

properties, which necessitates a narrowing of the footpath in front of numbers 5 and 6 [the

street concerned], mentioned or featured. This change to the design only appeared in the

final plans submitted to An Bord Pleanala in early 2022. This in itself was very disappointing,

given the efforts we expended over the previous 4 years to ensure that the NTA staff were

aware of our concerns about the risks of poor project design to our homes. We feel that our

good faith and openness to discussion and communication has not been matched by the

NTA.

2. Impact on local community

We have clearly articulated in our original submission that the proposal to remove the 2

existing bus stops and replace them with a single stop at [the street concerned] will result

in an inferior passenger experience for all bus users and in a reduced amenity for the entire

catchment between Artane roundabout and Maypark.

Because of the very confined space available on the footpath at [the street concerned], it is

impossible to include a bus shelter and seat, both of which are available at the existing

stops. The accessibility for wheelchair users and parents with young children in buggies will

be compromised. Due to the demographic of the area, there are many older people and

people with mobility issues using the bus service. They may not be able to continue to do

so if the only nearby bus stop has no amenity to rest and to shelter from weather. Please

see the photographs below that illustrate this point. We need hardly add that the solution to

this issue is not to attempt to shoehorn in a bus shelter at the proposed site, as the impact

on the quality of life of residents would be unthinkable.

Furthermore, the NTA does not seem to understand the catchment area and usage of the

bus stops. There is a laneway to the rear of the existing stop at Killester Avenue, connecting

through to Craigford Ave and Drive, through which the local Killester (Craigford, Killester

Park) residents access the bus stop. This community constitutes a large portion of the

existing catchment for the existing stop at Killester Avenue. There is no existing or proposed

permeability on the western side of Malahide Road into St. David's Wood and Pinebrook

estates, other than at the junction with Kilmore Road (Pinebrook) and Killester Avenue (St.

David's Wood). The omission of the existing bus stops at Killester Avenue and Danieli Road

therefore provides a lesser service even for those communities, and locating a bus stop

outside [the street concerned] would not improve the service to the western side of Malahide

Road.

The NTA submission fails to address the loss in service for the communities at St. Brigid's

and Brookwood, which are currently using the Danieli Road stop.

If all those parts of the catchment were to congregate at the proposed stop outside nos. 5

& 6 [the street concerned] Lower, much more pressure is put on a bus stop of inferior design,

therefore increasing the negative impact on the residents of [the street concerned], as

outlined below.

The distances between bus stops as proposed are at the longest distance in the entire

scheme (450m), whereas other stops remain as close together as 250m. Existing distances

between stops are 350m and 375m, with the only distance less than 250m between Artane

Roundabout and Danieli Road - suggesting an adjustment in this part of the scheme, rather

than outside [the street concerned].

3. Impact on residents of [the street concerned]

Most seriously for us, the NTA has made absolutely no attempt in its response to address

the most grave concerns of the residents of the cottages, namely the impact of this bus stop

proposal on our safety and privacy.

Both points were made in our submission, but the NTA failed to even list privacy as a point

to respond to, in contrast to submissions from other residents along the route, where they

explicitly list privacy as a concern (e.g. Mornington Park, Ayrfield Drive). It is hard to

understand why our, and only our, concerns about privacy were ignored, especially when it

is obvious on examination of the scheme design that we are the people whose privacy is

most seriously impacted by the project design.

Given that the NTA has not addressed this issue in any way, we include below individual

statements from households detailing exactly how this proposal will impact on our safety

and privacy.

We also show photographs giving examples of what buses stopping outside the doors of

numbers 5 and 6, and thus backing up north of number 6, would look like for residents and

what we would all have to live with on a constant basis.

3. 1. Effects of congregation outside our houses

Placing a bus stop in front of the terrace at [the street concerned] will mean passengers

congregating outside our homes. See an example below from a bus stop in Ringsend (stop

392), outside commercial premises rather than private homes, which shows that people

waiting for buses naturally spread out along the wall to their rear. There is no doubt that

this would happen outside our homes if this bus stop was positioned according to the current

plans, with the consequent impact on privacy, access and safety.

Note that the image below shows only 10 passengers waiting. As pointed out above, it is

likely that much larger numbers would congregate during rush hour in the mornings (for

work) and in the evenings (for city centre evening activities) or before large events (match

day, see below).

See below for example, just yesterday, 2nd July 2023, a crowd of people waiting at the

Killester Avenue bus stop 1220 en route to a match. If this happened directly outside our

doors and windows because the NTA were not willing to listen to our concerns and An Bord

Pleanala did not clearly instruct the NTA to revise their plans, it would be an egregious breach

of trust and a dereliction of duty of care to private citizens on the part of two national

authorities.

If a bin is placed alongside the proposed bus stop, ii is certain that dumping will occur. See

3 examples below from nearby Maryfield Crescent, Pinebrook Drive stop 4790 and Kilmore

Road stop 1220. This dumping would therefore be right outside our homes. If however no

bins were provided, there would be additional littering (cigarette butts, drinks bottles and

cans, general trash) at the bus stop too, as people waiting will be more likely to litter.

Our houses are already vulnerable, as all windows are to the footpath and at ground floor.

Due to the lack of front gardens, we have no measures available to us to protect us further

that wouldn't affect daylight, ventilation and views from our homes. Most rooms in the old

houses are single aspect and rely solely on their only window onto Malahide Road for air,

light and views. Even without the presence of a bus stop, we experience disturbing behaviour

from passers-by on a daily basis: People sitting on window sills, unaware of the fact that

these are our bedrooms and living rooms. Teenagers banging with their hands against every

single window as they pass by. People leaving empty pint glasses (from pub opposite), drinks

bottles and trash on our window sills. People spilling entire drinks against our windows. Dogs

being let to pee against our doors and walls.

With an increase in frequency of use, and an increase in time spent waiting at a bus stop

outside our houses, this behaviour is bound to increase, especially late in the evening when

passengers are waiting to go out in town, or after the pub closes.

3.2 Additional risk due to narrowing of footpaths

In addition to this lack of privacy, risk of littering, antisocial behaviour, blocking of windows

and doors, the design necessitates a narrowing of the footpath to accommodate a cycle lane

to the rear of the bus stop, and a right-turn cycle waiting lane at the junction with Kilmore

Road. This creates permanent bottlenecks on the footpaths created at the proposed bus stop

outside [specified addresses], and creates an additional safety concern for residents entering

and leaving their homes due to the speed of cyclists travelling on a continuous cycle lane. JI

is almost inevitable that accidents between cyclists and vulnerable pedestrians (elderly or

children) will occur.

3.3. Vehicular access

Furthermore, existing vehicular access to our homes will be compromised, in terms of access

and short term parking for carers, deliveries, emergency services etc to our homes from the

front. Some of the houses do not have vehicular access from the rear lane, and the elderly

residents are relying on front door access for these services. Likewise, the impact on access

to both the north and south gates, which give vehicular access to the rear of our homes via

a lane, has not been adequately addressed. With the expected frequency of use of both the

bus and cycle lanes, manual operation of those gates (while the cars would be blocking both

those lanes, as well as the footpath) is not feasible.

3.4. Damage to building fabric

We are aware of the damage the existing footpath design is causing to our properties. The

NTA has swept away our comments regarding the inadequate drainage along the houses

and impact sound due to bad detailing, arguing that their design would not worsen the

situation, and arguing that a legacy issue can remain as is. This is an insufficient response -

the aim of a national authority cannot be to merely maintain bad design from 20 years ago,

but must strive to improve the design in line with current best practice, especially since the

scheme requires the relaying of the entire stretch of footpath.

We must insist that the NTA be instructed that in the detail design, all rainwater discharge

from the terraces must be discharged directly into surface water drainage, with french drains

along the length of the terrace, and no direct contact between concrete footpaths and

masonry walls, to avoid transfer of impact sound.

Each of the above points has been made in detail in our original submission and we reiterate

them here to highlight that they were not addressed by the NTA in their response. We must

trust that An Bord Pleanala will make the correct decision to instruct the NTA to omit any

bus stop outside [the street concerned], and to fully address all of our concerns as the most

vulnerable parties to the scheme along the entire stretch.”

37. The submission includes the following personal statement from the applicant herself:

“RE: Objection to Application for Approval of a Proposed Road - CLONGRIFFIN TO CITY

CENTRE CORE

BUS CORRIDOR SCHEME - at [the street concerned]

I live in [address] and am writing on behalf of myself and my partner Peter Prendergast.

I grew up in Artane, and bought my house in 2003 so that I could live in the area close to

my parents, who needed help as they aged. Over the 20 years I have lived here I have

worked to create a safe and comfortable home for myself and my family, and we have never

intended to move from our home. That safety and comfort is threatened by the proposal to

place a bus stop directly on the footpath outside of our home and that of our neighbours in

number 6, a couple in their B0's. Below in Figure 1, is a photograph of the house, showing

that the front door, 3 front windows, and the side entrance door, which we use on a daily

basis, open directly onto the footpath where the bus stop is proposed to be situated. The

windows open from the living room, a bedroom and a sitting room.

There are several aspects of this proposal that concern me deeply. First, the plans show that

in order to accommodate the cycle lane into the design at this point of the route, the NTA

proposes to create a concrete 'island' for waiting passengers to stand on, and to swerve the

cycle lane to the rear of this island, thereby narrowing the footpath directly in front of my

front door and side door. This will bring cycle traffic, including electric bicycles that can reach

speeds of up to 45 km/hr, within 1.5 metres of my front door. The approximate position of

the east edge of this cycle lane is at the gully pictured in Figure 2 below. I'm sure you can

visualise the significant safety hazard this poses to us as we enter and leave our home.

Second, bus stops mean waiting passengers. There is a big difference between normal foot

traffic passing outside the house and having all the local residents of the catchment area

standing outside the house in order to use the bus service. Ever since this proposal has been

mooted I have been counting the number of passengers who congregate at the existing bus

stops at Killester Avenue and Danieli Road. On busy mornings there can be upwards of 20

people waiting at any given time. Assuming that passenger numbers will Increase as a result

of the BusConnects project, even if frequency of service increases, that means potentially

over 40 people waiting at peak times at the new proposed stop, which is intended to replace

the 2 existing bus stops. The proposed concrete island cannot accommodate these numbers,

especially if you factor in wheelchair users or people waiting with buggies. It is inevitable

that waiting passengers will congregate directly outside the front wall of the house,

physically blocking the doors and windows, including blocking light through the windows.

Imagine this on wet mornings, as people shelter at the wall with their umbrellas. This is

especially pertinent given that there will be no bus shelter and thus no protection from

weather in this arrangement due to the lack of space. Only a pole and digital display is

proposed. We do not know if a bin will be placed here. If no bin is provided, there will be

litter strewn on the ground or on our window sills. If a bin is provided, dumping will result,

and it will be a potential fire hazard (other bins locally have been set on fire either

purposefully or accidentally due to smouldering cigarettes). Neither is an attractive prospect

for the residents and no-one would wish to have this directly outside their front door.

The prospect of large numbers of people congregating directly in front of our home 24 hours

a day (since a 24 hour bus service is proposed) is, quite simply, frightening. There is a pub,

[named], located across the road; thus the potential for antisocial behaviour as people wait

late at night to catch the bus after the pub closes is clear. I do not relish the prospect of

myself and my family pushing our way through crowds of people to enter or leave the house,

all hours of the day and night, for the rest of our lives. I enclose photographs of the view

through my doors and windows in Figures 3 and 4. The impact this will have on safety and

privacy is obvious. Waiting passengers will see straight into our house as we open the front

door. We will not be able to open the windows without compromising privacy. Waiting

passengers will be able to peer inside our windows and we will be exposed to the increased

noise of conversation, cigarette smoke, blocking of light, potential for littering etc. We have

no front garden and there is nothing we can do to protect our privacy except to close the

curtains and live constantly under artificial light. This is unacceptable.

I am pleading with you to understand the position in which the NTA is placing myself, my

family and my neighbours, and the stress and worry this has caused since we became aware

of this plan. There are ample alternatives available to the NTA - they have not provided a

reasonable rationale not to retain either or both of the existing bus stops at Killester Avenue

and Danieli Road, both of which are situated on wide pathways that enable a full amenity

with access and bus shelter for all the local residents to be maintained. I implore you to

direct the NTA not to place a bus stop outside my home or that of any of my neighbours in

[the street concerned]. We are relying on you to protect our safety, privacy, comfort and

enjoyment of our own homes.

Yours sincerely,

Aine Kelly

Peter Prendergast”

38. I am not generally a huge fan of putting photos in judgments on the perhaps debatable

ground that such a practice might potentially reduce the pressure to make the written word do the

heavy lifting. But my prejudices in that regard are being strongly challenged in the present case

because the pictures do tell a story. If I had had them in linkable form I would certainly have

considered adding such a link for illumination.

39. The picture of on p. 6 of the submission shows about 13 people gathered on a match day at

one of the stops which is going to be removed and replaced by the bus stop outside the applicant’s

house. Even if they were no more than usually high-spirited for a match-going crowd, one can only

imagine the impact on the applicant when such a congregation descends on a narrow footpath

directly in front of her window.

40. The picture on p. 7 shows a passer-by oafishly squatting on the windowsill of one of the

houses in the terrace, as viewed from inside the bedroom window that looks out onto the street.

Not necessarily a vista that stirs up warm philanthropic feelings towards one’s fellow biped. More

probably it might induce one to associate with Sartre’s view of « les autres » in his 1944 play, Huis

clos. Admittedly such scenarios could happen anyway but one might imagine that they would only

be exacerbated by the erection of a bus stop as a magnet for such behaviour. The concept of hostile

architecture gets a bad press but it has a useful role in some situations, and one wonders whether

this is one of them, for example if the outside sills were to be treated with bolts to deter the

inconsiderate hordes from sitting down. That’s just a comment in passing because any such hostile

design would have to be progressed separately by homeowners, subject to any planning

requirements.

41. The photo on p. 12 shows the significant effect of just one person standing outside the

applicant’s living room window, creating an eerie, looming, presence. The critical point there for

present purposes is that passers-by come and go. But those waiting for a bus to arrive have little

choice but to be stationary. If only one person can block out massive amounts of light and create

an ominous view for the applicant in her living room, then obviously such problems can only be

multiplied by the proposed development.

42. The deadline for further submission in relation to the NTA’s response document was 5th July

2023.

43. The board’s Inspector Ms Sarah Lynch prepared a Report dated 9th August 2023,

recommended that approval be granted for the Clongriffin Scheme. Ms Lynch prepared another

report, dated 16th November 2023, relating to the CPO.

44. The Clongriffin Scheme, and the associated CPO, were approved by the board at a meeting

on 20th December 2023. The board direction is dated 4th January 2024, and the board order

approving the Scheme, subject to a schedule of 20 conditions, is dated 8th January 2024.

45. On 24th January 2024, the board published a newspaper notice regarding the approval of

the development consent application in accordance with s. 51(6C)(a) of the Roads Act 1993.

46. On 1st February 2024, the NTA published a newspaper notice of the confirmation of the CPO

in accordance with s. 78 of the 1966 Act.

47. A further notice of the confirmation was sent to every person who had an interest in the land

in the CPO who had made an objection including the applicant.

48. On the 22nd of February 2024, the CPO became operative. Furthermore, the Operative Date

Notice was sent in accordance with s. 78(5) of the 1966 Act to every person on whom a notice was

served by them of the NTA’s intention to submit the order to the board for confirmation including

the applicant.

Procedural history

49. The proceedings issued on 28th February 2024 by the filing of the statement of grounds and

grounding affidavit.

50. The matter was first mentioned on 4th March 2024 when I noted that the application was

moved. I gave liberty to amend the statement of grounds within 2 weeks to add a more specific

relief, and added the NTA as a notice party. The applicant was directed to put the board and NTA

on notice of the leave application within 1 week and the matter was adjourned to 8th April 2024.

51. An amended statement of grounds was delivered on 7th March 2024. On the following day

I fixed a date for the hearing of the leave application on notice. All papers were served by the

applicant on 28th March 2024.

52. On 8th March 2024, I permitted the notice party to file an affidavit and set out the timeline

for the exchange of legal submissions as well as indicating a date for the hearing of the contested

leave application which after some exchange of correspondence was listed for 11th June 2024.

53. On 15th April 2024, an Affidavit of Aidan Gallagher for the NTA was sworn and served. It

was filed on 16th April 2024.

54. Written submissions from the applicant, board and NTA were delivered dated 29th April and

13th and 14th May 2024 respectively. The matter was called over on 10th June 2024.

55. The leave application on notice was heard on 11th June 2024 when judgment was reserved.

Relief sought

56. The relief sought in the amended statement of grounds is as follows:

“(D) Relief Sought : Judicial Review and Quashing of the Decision of An Bord Pleanala

Reference No. ABP-313182-22 dated 9th day of January 2024.”

57. The board’s interpretation of this is:

“Whereas there may be pleading points, the Board believes it is acceptably clear from the

Amended Statement of Grounds that the Applicant is seeking to quash the approval by the

Board on 8th January 2024 (under ref. ABP-313182-22), under section 51 of the Roads Act

1993 of the proposed road development consisting of the construction of the Clongriffin to

City Centre Bus Corridor Scheme (‘the Section 51 Approval’).”

Grounds of challenge

58. The pleaded grounds of challenge are as follows:

“Failure by the NTA to follow Procedure. There was no Notification to the Applicant or any of

the affected Residents by the NTA of the proposed new Bus Stop arrangement, and there

was a material misstatement of the Consultation Procedure in the Application Documents

from the NTA. Neither the Applicant nor any of the Residents received any formal Notification

by Letter as impacted parties at the Third Consultation which the NTA states was issued in

November 2020. Consequently, neither the Applicant nor any of the Residents were given

the opportunity for one-to-one consultations as was their right as affected landowners.

Breach of Constitutional Property Rights under the Irish Constitution per Article 40.3 and 43

with regard to Applicants Constitutional Right to quiet enjoyment of one’s Property and the

expectation that a Property owning Citizen would not be disproportionately affected by

Planning Decisions of An Bord Pleanala or NTA Schemes.

Detailed and rational residents’ observations were not responded to in full by the NTA or

ABP internal Reports and the Final Decision specifically in relation to details highlighting the

Planning History and the justification for, location of, and the detailed design of the proposed

Bus Stop outside [the property concerned].

Such failings include but are not limited to the foregoing :-

(1) Lack of careful consideration of proposed removal of the existing Two fully functional

Sheltered Bus Stops and their replacement with merely one metal Bus Stop Sign with no

Shelter. There is no evidence of any such careful consideration in the relevant NTA

documentation.

(2) Bus Stop No. 1219 was simply omitted prior to Consultation 1 ( without any

replacement) and no justification; Bus Stop No. 1220 was removed prior to Consultation 2

(without replacement), and no justification. The proposed Bus Stop to be located at [the

property concerned] was introduced at Consultation 3 without any justification.

(3) Flaw in justification for new Bus Stop at Submission of Application ‘due to proximity

with the new Kilmore Road Stop’ ( Preliminary Design Report, Appendix H, Page 44 of 52,

Location Review ), which is a clear post-rationalisation of the planning process.

It is misleading, and appears to be used to justify the ‘amalgamation’ of a Bus Stop.

‘Where existing Bus Stops on a route are in close proximity to each other they may be

amalgamated into a single stop. This must be assessed on a case-by-case basis.’ ( Appendix

A4.1 – Preliminary Design Guidance Booklet for BusConnects Core Bus Corridor, section 11.

Bus stops ).

(4) Justification for new Bus Stop providing ‘greater permeability’ is not backed up with

details – the Applicant and Residents’ observations clearly set out the flaws in this argument

( Sections 3. & 3.1.).

(5) Alternative locations were demonstrated where the NTA preferred layout could have

been applied and there was an entirely insufficient response to such observations of the

Applicant and the Residents.

(6) Proposed substitute Bus Stop for two existing Bus Shelters was a late-stage design

change severely impacting Private Residences such as that of the Applicant at [the property

concerned] and was not communicated to the disproportionately affected Property owners

such as the Applicant.

(7) Contravention of the proposal with NTA internal design guidelines in the location and

design of the substitute Bus Stop outside the Cottages was not addressed in any way despite

being highlighted by the observations of the Applicant and Residents.

(8) Insufficient footway width to accommodate the substitute Bus Stop outside [the

street concerned].

(9) No reasonable space for the substitute Bus Shelter.

(10) Insufficient sizing of the substitute Bus Stop for expected passenger numbers and

Bus travel demand.

(11) Reduced width of cycle path behind said Bus Stop.

(12) Non application of ‘ Shared Bus Stop landing zone arrangement (Urban Centres)’

design for said Bus Stop.

(13) Non-provision of a Bus Shelter for said substitute Bus Stop in contravention of design

standards.

Disproportionate impact of Proposal on Residents and Residential Property in breach of

constitutional rights :

(14) The proposed substitute Bus Stop for two other fully operational Bus Shelter Stops

is the only Bus Stop in front of any houses without front gardens along the entire Scheme,

and indeed the only new Bus Stop proposed in front of any residential property.

(15) EIA does not account for impact on Residents at [the street concerned] including

increased physical danger through accidents due to narrowing of the existing footpath to

accommodate cycle lane and the impediment to safe entrance and exit at the Front Doors

of disproportionately affected Residential Properties due to the congregation of waiting

passengers at a 24hr Bus Stop.

Increased danger of crime being committed against Persons or Properties due to

congregation of waiting passengers at a 24 hour Bus Stop.

Reduced enjoyment of the Applicants and Residents Property and Privacy.

(16) No impact assessment provided on expected long-term very negative impact on the

Applicant and Residents of [the street concerned] Malahide Road.

(17) [the street concerned] are the only ‘ Other Structures of Architectural Heritage

Interest’ (EIA, 16.4.4) actually negatively affected by the entire Bus Connects Scheme.

(18) Residential amenities of the Properties further reduced after decades of incremental

negative impacts of poor infrastructure planning.

(19) Loss of Property Values of Applicant and Residents.

(20) Existing antisocial behaviour by passers-by likely to be aggravated by increased

times spent waiting at bus stop and no An Garda Siochana Assessment was provided.”

59. The NTA has helpfully sought to translate these complaints into more legally pertinent

language, and has proposed that the points sought to be made by the applicant can be reflected in

the following core grounds:

“(i) the decision of An Bord Pleanála to grant approval pursuant to section 51 of the

Roads Act, 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme

is invalid because of the failure of the National Transport Authority to notify affected

residents of the proposed bus stop arrangement in respect of the bus stop to be located at

approximate chainage A6575 outside [the applicant’s property] and failed to follow the

procedures explained in the Public Consultation Submission Report;

(ii) the decision of An Bord Pleanála to grant approval pursuant to section 51 of the

Roads Act, 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme

is invalid because it breaches the Applicant’s right to quiet enjoyment of their property

pursuant to Article 40.3 and 43 of the Constitution; and,

(iii) the decision of An Bord Pleanála to grant approval pursuant to section 51 of the

Roads Act, 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme

is invalid because the National Transport Authority and An Bord Pleanála did not respond in

full to the submissions made by residents in respect of the bus stop to be located at

approximate chainage A6575 outside ... [the street concerned].”

60. The board has suggested a fourth core ground:

“the Section 51 Approval constitutes a ‘Disproportionate impact of Proposal on Residents

and Residential Property in breach of constitutional rights’.”

The law in relation to leave

61. The main requirements in relation to leave to apply for judicial review under G. v. D.P.P.

[1994] 1 I.R. 374 (Finlay C.J.) as that applies to planning cases, bearing in mind the adjustments

to that test required by amendments to O. 84 RSC since then and by statutory modification, were

referred to in Reid v. An Bord Pleanála (No. 5) [2022] IEHC 687, [2022] 12 JIC 0902 (Unreported,

High Court, 9th December, 2022) and more recently in Duffy v. Clare County Council [2023] IEHC

430, [2023] 7 JIC 2404 and in Morehart v. Monaghan County Council [2024] IEHC 100, [2023] 2

JIC 2601 at §23.

62. Duffy attempted to summarise the requirements for the grant of leave in planning cases as

follows:

(i) that the applicant has standing by way of having a sufficient interest (O. 84 r. 20(5)

RSC, s. 50A(3)(b)(i) of the 2000 Act);

(ii) that the facts averred in the affidavit would be sufficient, if proved, to support a

substantial ground for the form of relief sought by way of judicial review (G. v. D.P.P.

as modified by s. 50A(3)(a) of the 2000 Act);

(iii) that on those facts a substantial case in law can be made that the applicant is entitled

to the relief which she seeks (G. v. D.P.P. as modified by s. 50A(3)(a) of the 2000

Act);

(iv) compliance with time limits, normally 8 weeks in the planning context (s. 50(6) and

(7));

(v) capacity of the applicant (as a matter of general law – only an issue in applications

by unincorporated bodies);

(vi) exhaustion of remedies, or as put in G. v. D.P.P., that the only effective remedy, on

the facts established by the applicant, which the applicant could obtain would be an

order by way of judicial review or, if there be an alternative remedy, that the

application by way of judicial review is, on all the facts of the case, a more

appropriate method of procedure (s. 50A(3)(c) inserted by s. 22 of the Planning and

Development, Maritime and Valuation (Amendment) Act 2022, which has been in

force since 20th October, 2022 by virtue of the Planning and Development, Maritime

and Valuation (Amendment) Act 2022 (Commencement of Certain Provisions) (No.

3) Order 2022 (S.I. 523 of 2022));

(vii) compliance with relevant procedural requirements, particularly other provisions of

O. 84 RSC or the terms of High Court Practice Direction HC124 – although normally

this would affect the specifics of any leave in how the reliefs and grounds should be

worded, rather than whether leave should be granted at all; and

(viii) that there are no other grounds to warrant refusal of leave on a discretionary basis

(see North East Pylon Pressure Campaign Limited & Ors v. An Bord Pleanála (No. 1)

[2016] IEHC 300; 2016 WJSC-HC 4214, [2016] 5 JIC 1215 (Unreported, High Court,

12th May, 2016), which refers to triviality or lack of good faith for example).

63. As regards the extent to which the court can determine contested factual or legal issues at

the leave stage, the position was addressed in Reid v. An Bord Pleanála (No. 5) [2022] IEHC 687,

[2022] 12 JIC 0902:

(i) as regards jurisdictional requirements, the logic of the leave procedure, as

interpreted in G. v. D.P.P., is that the court must determine those issues in some

form at the leave stage, albeit that, for example, a decision to extend time could be

revisited later if a party that hadn’t been heard comes forward with something

determinative that wasn’t taken into account in the original order;

(ii) as regards to factual issues (and leaving aside the distinction between arguability

and substantial grounds), G. v. D.P.P. implies that one starts by taking the facts

averred to at their high water mark. However it is also clear that the court can have

regard to facts averred to by the opposing parties, such that it may become apparent

even at leave stage that the necessary factual basis for any given point may not

arise; and

(iii) as regards legal issues, the wording of G. v. D.P.P. implies that frequently any legal

contention will only be finally determined at the substantive hearing. But there are

some exceptions to that.

64. As regards whether to determine legal issues at the leave stage:

(i) Where the law has been clarified already (in the sense of having been set out in a

previous judicial decision: McNamara v. An Bord Pleanála [1996] IEHC 60, 1995

WJSC-HC 1122, [1996] 2 I.L.R.M.339, [1996] 5 JIC 1001, [1995] 1 JIC 2403 Carroll

J.), the court can simply apply that clear law to the facts. A “clear” law for this

purpose includes law as clarified by the High Court or the Court of Appeal as well as

purely by the Supreme Court, assuming that the party arguing for an alternative

position doesn’t put up any plausible argument as to why the position as so set out

is wrong (as outlined in Reid (No. 5)). And even a settled authority (even

occasionally a Supreme Court decision if one dare say so) may need to be

distinguished or clarified over time as statute law changes or as new situations arise

in a complex society. Otherwise the law would fossilise and the necessary evolution

of law as a practical and living instrument of human government would grind to a

halt.

(ii) If the law has not been clarified, but is not particularly complex and is readily able

to be clarified with some certainty in the limited forum of a leave hearing, the court

can decide such issues at leave stage, rather than parking them for a later full trial.

The necessity for this to be a process that can be readily conducted within the limited

confines of a leave hearing is an important feature. Considerations of practicality

and jealous husbandry of limited judicial resources strongly militate against turning

any and every leave application into something that would rival a full blown

substantive hearing with an equivalent level of argument.

(iii) If the law has not been already clarified (or if it has been clarified, but the applicant

can advance substantial grounds for distinguishing, clarifying, nuancing or arguing

for the need for evolution in that law), and if, even bearing in mind the perspective

that a point that seems complex initially might appear more straightforward in the

light of submissions of the opposing parties, the precise legal position can’t be

determined to the appropriate level of certainty within the limited confines of a leave

hearing, then the court can grant leave provided that sufficient facts are averred to

in order to provide a basis for relief having regard to the legal proposition being

advanced, and that any other procedural and jurisdictional requirements are met.

In such a case any determination of the merits of that legal argument will be a

matter for the substantive hearing (see Kenny v. An Bord Pleanála (No. 1) [2000]

IEHC 146, [2001] I.R. 565, [2000] 1 I.L.R.M. 68, [2000] 12 JIC 1502 at para. 7,

McKechnie J., Arklow Holidays Limited v. An Bord Pleanála & Others [2006] IEHC

15, [2006] 1 JIC 1802 at para. 3.9, Clarke J.).

The law in relation to applications by litigants in person

65. As regards how the court should address applications, including leave applications, made by

personal litigants, the position is as follows:

(i) A court may extend a degree of latitude to a lay litigant to ensure that she is not

unduly disadvantaged by a lack of being conversant with procedural requirements:

C.O'S. & Anor v. Doyle & Others [2013] IESC 60, [2014] 1 I.R. 556 [2014] 1 I.L.R.M.

424, [2013] 12 JIC 1907 (MacMenamin J.), Talbot v. Hermitage Golf Club [2014]

IESC 57, [2014] 10 JIC 0901 at [48] per Charleton J., Flynn v. Desmond [2015]

IECA 34, [2015] 2 JIC 2604 at [19] per Mahon J. (Hogan and Peart JJ. concurring),

Delany and McGrath on Civil Procedure (5th Ed., Round Hall, 2023) at [31-140] and

the case law cited. This can take the form of either expressly outlining such

requirements for the information of the litigant concerned or affording latitude in

endeavouring to facilitate such a litigant in framing her papers and submissions in

such a way as to bring out the real issues in dispute, or both. Such an exercise does

not inherently constitute unfair prejudice to other parties and is instead aimed at

arriving at a more level playing field. But it should not be taken to extremes whereby

unfair prejudice could arise.

(ii) Such latitude does not extend to the application of different legal tests. In principle

a litigant in person is subject to the same substantive and procedural legal rules as

other litigants: Knowles v. Governor of Limerick Prison [2016] IEHC 33, [2016] 1

JIC 2503, Burke v. O'Halloran [2009] IEHC 343, [2009] 3 I.R. 809, [2009] 7 JIC

1002 (Clarke J.), O’Neill v. An Bord Pleanála [2020] IEHC 356, [2020] 7 JIC 2201 at

§29 and §30 (McDonald J.), O’Connell v. Financial Services and Pension Ombudsman

[2020] IEHC 559, [2020] 11 JIC 0501 at §7 to §12 (O’Connor J.), Murphy v. Garda

Síochána Ombudsman Commission & Others [2021] IECA 26, [2021] 2 JIC 0401 at

[51] (Collins J).

Whether leave should be granted here

66. Applying the foregoing to the leave applications here, the position is as follows:

(i) sufficient interest – this was not hugely disputed;

(ii) that the facts averred in the affidavit would be sufficient, if proved, to support a

substantial ground – that issue was not really severable from whether there is a

substantial ground in principle;

(iii) that on those facts a substantial case in law can be made that the applicant is entitled

to the relief which she seeks – that is discussed further below;

(iv) compliance with time limits – that was not significantly disputed;

(v) capacity of the applicant – not an issue;

(vi) exhaustion of remedies – not an issue;

(vii) compliance with relevant procedural requirements, e.g., O. 84 RSC, Practice

Direction HC124 – there was a certain informality or non-compliance in the papers

but that is capable of being addressed by directions if the matter were to proceed;

and

(viii) discretion – that wasn’t a significant independent issue.

67. We can then turn to the issue of substantial grounds.

Core ground 1 – failure to give notice of bus stop location

68. Core ground 1 is:

“the decision of An Bord Pleanála to grant approval pursuant to section 51 of the Roads Act,

1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme is invalid

because of the failure of the National Transport Authority to notify affected residents of the

proposed bus stop arrangement in respect of the bus stop to be located at approximate

chainage A6575 outside [the property concerned] and failed to follow the procedures

explained in the Public Consultation Submission Report;”

69. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground No. 1

The Applicant

The decision of An Bord Pleanála to grant approval pursuant to section 51 of the Roads Act,

1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme is invalid

because of the failure of the National Transport Authority to notify affected residents of the

proposed bus stop arrangement in respect of the bus stop to be located at approximate

chainage A6575 outside [the properties concerned] and failed to follow the procedures

explained in the Public Consultation Submission Report;

The Board

Core Ground No. 1 does not meet the threshold for leave. It is a complaint directed at the

third round of pre-application non-statutory public consultation in November 2020 by the

Notice Party (NTA). It does not meet the threshold for leave because it does not go to the

validity of the Board’s Decision at all. It relates solely to a non-statutory consultation carried

out by the NTA that occurred in November 2020 before it made the application for approval

to the Board (which was on 1st April 2022). Core Ground No. 1 does not postulate a basis

for an entitlement to relief by reference to some identified legal provision or doctrine and an

explanation as to how that gives rise to an entitlement to the remedy sought. It discloses

no route-map from the complaint made to the relief claimed.

The National Transport Authority

Core Ground No. 1 is directed at the non-statutory consultation process which occurred as

part of the design process for the Clongriffin to City Centre Bus Corridor Scheme and prior

to the lodgement of an application for approval to the Board pursuant to section 51 of the

Roads Act, 1993 (as amended). The Applicant cannot impugn the Section 51 Approval by

reference to any issue raised as part of Core Ground 1, as all her complaints relate to the

non-statutory consultation process which occurred prior to the submission of the application

for approval to the Board. The complaints raised by the Applicant do not go to the validity

of the decision of the Board and are not a basis upon which any relief could be granted.

70. As a domestic law ground for the actual relief claimed, this complaint is unfounded because

it relates to the pre-application procedure. Any alleged shortcomings in the NTA’s actions in its non-

statutory pre-application consultations do not give rise to a right of action against the board and do

not affect the validity of the decision on the application that was ultimately made.”

71. The applicant sought to introduce the Aarhus convention in support of core ground 1, by

exhibiting the UNECE document, The Aarhus Convention: An Implementation Guide 2nd ed (Geneva,

UN, 2014).

72. Article 6 of the Aarhus convention provides:

“Article 6

PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES

1. Each Party:

(a) Shall apply the provisions of this article with respect to decisions on whether to

permit proposed activities listed in annex I;

(b) Shall, in accordance with its national law, also apply the provisions of this article

to decisions on proposed activities not listed in annex I which may have a significant

effect on the environment. To this end, Parties shall determine whether such a

proposed activity is subject to these provisions; and

(c) May decide, on a case-by-case basis if so provided under national law, not to

apply the provisions of this article to proposed activities serving national defence

purposes, if that Party deems that such application would have an adverse effect on

these purposes.

2. The public concerned shall be informed, either by public notice or individually as

appropriate, early in an environmental decision-making procedure, and in an adequate,

timely and effective manner, inter alia, of:

(a) The proposed activity and the application on which a decision will be taken;

(b) The nature of possible decisions or the draft decision;

(c) The public authority responsible for making the decision;

(d) The envisaged procedure, including, as and when this information can be

provided:

(i) The commencement of the procedure;

(ii) The opportunities for the public to participate;

(iii) The time and venue of any envisaged public hearing;

(iv) An indication of the public authority from which relevant information can

be obtained and where the relevant information has been deposited for

examination by the public;

(v) An indication of the relevant public authority or any other official body

to which comments or questions can be submitted and of the time schedule

for transmittal of

comments or questions; and

(vi) An indication of what environmental information relevant to the

proposed activity is available; and

(e) The fact that the activity is subject to a national or transboundary environmental

impact assessment procedure.

3. The public participation procedures shall include reasonable time-frames for the different

phases, allowing sufficient time for informing the public in accordance with paragraph 2

above and for the public to prepare and participate effectively during the environmental

decision-making.

4. Each Party shall provide for early public participation, when all options are open and

effective public participation can take place.

5. Each Party should, where appropriate, encourage prospective applicants to identify the

public concerned, to enter into discussions, and to provide information regarding the

objectives of their application before applying for a permit.

6. Each Party shall require the competent public authorities to give the public concerned

access for examination, upon request where so required under national law, free of charge

and as soon as it becomes available, to all information relevant to the decision-making

referred to in this article that is available at the time of the public participation procedure,

without prejudice to the right of Parties to refuse to disclose certain information in

accordance with article 4, paragraphs 3 and 4. The relevant information shall include at

least, and without prejudice to the provisions of article 4:

(a) A description of the site and the physical and technical characteristics of the

proposed activity, including an estimate of the expected residues and emissions;

(b) A description of the significant effects of the proposed activity on the

environment;

(c) A description of the measures envisaged to prevent and/or reduce the effects,

including emissions;

(d) A non-technical summary of the above;

(e) An outline of the main alternatives studied by the applicant; and

(f) In accordance with national legislation, the main reports and advice issued to the

public authority at the time when the public concerned shall be informed in

accordance with paragraph 2 above.

7. Procedures for public participation shall allow the public to submit, in writing or, as

appropriate, at a public hearing or inquiry with the applicant, any comments, information,

analyses or opinions that it considers relevant to the proposed activity.

8. Each Party shall ensure that in the decision due account is taken of the outcome of the

public participation.

9. Each Party shall ensure that, when the decision has been taken by the public authority,

the public is promptly informed of the decision in accordance with the appropriate

procedures. Each Party shall make accessible to the public the text of the decision along with

the reasons and considerations on which the decision is based.

10. Each Party shall ensure that, when a public authority reconsiders or updates the

operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs

2 to 9 of this article are applied mutatis mutandis, and where appropriate.

11. Each Party shall, within the framework of its national law, apply, to the extent feasible

and appropriate, provisions of this article to decisions on whether to permit the deliberate

release of genetically modified organisms into the environment.”

73. The applicant relies in particular on art. 6(4) to the effect that early, open and effective

public participation is required in relation to decision to which the article applies.

74. This issue isn’t properly pleaded and the applicant didn’t seek an amendment. Had she done

so, I don’t think such a plea if allowed to be added would have constituted a substantial ground for

certiorari given that the non-statutory process was followed by a statutory one which is not said to

be in breach of the Aarhus Convention. That said, one could see an interesting line of argument

that the State has failed to transpose art. 6(4) adequately, but that would have involved joining

State respondents and seeking declaratory relief. That wasn’t attempted. In particular, there wasn’t

any proposal to amend the proceedings to add a systemic challenge to the architecture of the Roads

Act 1993 for failing to require some more specific kind of pre-application consultation.

75. The NTA also made the point that the Aarhus Convention is only part of Irish law to the

extent that it is part of EU law, and the EU has only implemented it with respect to the formal

planning process by means of the EIA directive. Inferentially therefore, parts of the Aarhus

convention that are not part of EU law are not justiciable. I don’t need to decide on the merits of

that defence now because we don’t get to that point, but I can note in passing that the CJEU has

declared there to be a fairly wide obligation to interpret national law in line with Aarhus where

possible.

76. The conclusion on core ground 1 is that the applicant has not demonstrated substantial

grounds for the relief actually sought and has not sought to amend the pleadings to add a relief that

would more properly relate to this ground.

Core ground 2 – property rights

77. Core ground 2 is:

“The decision of An Bord Pleanála to grant approval pursuant to section 51 of the Roads Act,

1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme is invalid

because it breaches the Applicant’s right to quiet enjoyment of her property pursuant to

Article 40.3 and 43 of the Constitution.”

78. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground No. 2

The Applicant

The decision of An Bord Pleanála to grant approval pursuant to section 51 of the Roads Act,

1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme is invalid

because it breaches the Applicant’s right to quiet enjoyment of their property pursuant to

Article 40.3 and 43 of the Constitution; and,

The Board

Core Ground No.2 does not meet the threshold for leave. It discloses no route-map from the

complaint made to the relief claimed. The necessary factual basis for this point does not

arise. No breach of the Applicant’s property rights protected under Article 40.3 and 43 of the

Constitution has been identified. The Board Order for the Section 51 Approval (at pages 8-

9) records that the Board considered, for stated reasons, that the proposed development

would be in accordance with the proper planning and sustainable development of the area.

Insofar as constitutional rights are concerned, proper planning and sustainable development

is the prior and superior concept, with the primary process being that the Board has to form

a judgement as to what is required by proper planning and sustainable development and

give reasons for that. That was done here. If such a reasoned decision impacts on property

rights, that is not in itself unjust. As regards Core Ground No.2, there is also no engagement

with how a disproportionate as opposed to proportionate interference is said to arise. At

Core Ground No.2, the Applicant has not established to the substantial grounds threshold

that the Section 51 Approval by the Board involves an unjust attack on the Applicant’s

property rights or any failure to vindicate them.

Further, the Applicant has not established to the substantial grounds threshold that the

Section 51 Approval involves a disproportionate impact on the Applicant and on residents

and residential property in breach of constitutional rights (see e.g., the Table below §34 in

the Board’s submissions). It is also not open to the Applicant to rely on third party property

rights and/or rules to protect those rights to invalidate the Board’s Decision.

The National Transport Authority

Having not invoked any reliance on her Constitutional rights before the Board, the Applicant

cannot impugn the decision by reference to those alleged rights.

Without prejudice to the foregoing, the decision of the Board does not cause any

infringement of the property rights of the Applicant and where it was determined that the

grant of approval for the Clongriffin to City Centre Core Bus Corridor Scheme was in

accordance with the proper planning and sustainable development of the area, the

Constitutional rights asserted by the Applicant are not engaged. The right of quiet enjoyment

of one’s property does not include a right not to have persons use the public footpath outside

that property, including for the purposes of accessing public transport and the Applicant has

not discharged the burden of proof of demonstrating that her rights would be infringed.

Insofar as there is any infringement of her rights (which is denied), that is proportionate

having regard to the public good served by the development of important public

infrastructure which forms part of the overall public transport and cycling network developed

for the city of Dublin.”

79. Without going through every issue raised, given the need to tie everything to the pleadings,

the applicant’s submission at the hearing included the following, before going on to stress the point

quoted at the outset of this judgment:

“The second ground on which I apply for permission to seek judicial review is that of a breach

to my constitutional property rights under the Irish Constitution per Article 40.3 and 43 with

regard to a constitutional right to quiet enjoyment of one's property. Given these

constitutional rights, I believe there is an expectation that a property owning citizen would

not be disproportionately affected by planning decisions of An Bord Pleanála or NTA schemes.

I am grossly and disproportionately affected by the decision of the NTA to place a bus stop

directly outside my home, given that I have no front garden and that waiting passengers

will congregate directly outside my front door and windows. The impact on residents is

clearly described in the submissions to An Bord Pleanála in May 2022 and July 2023, Exhibit

13. ...

The absolute lack of concern for my rights by An Bord Pleanála and the NTA is clear from

other aspects of the Inspector's Report. The Inspector sweeps away the legitimate concerns

the residents have regarding safety and privacy. On page 94, point 6.166, she states that

‘the cottages are located in an urban area’. This is not true. Artane is a suburban area,

populated by families and older people.

I note she contradicts herself on page 70, point 6.46, where she states that bus stops should

be located approximately 400 metres apart on typical suburban sections of route, dropping

to approximately 250 metres in urban centres. ...

As you will note from our submission in May 2022, the current bus stop distances along the

stretch of road in question are 225, 375 and 300 metres. Under the new proposal, the

distances are 450 metres. I would like to point out that these are the longest distances

between stops anywhere on the 6 kilometre Clongriffin to City Centre route, meaning a

reduced amenity for the local community. If, as the Inspector contends on page 94, I lived

in an urban area, then the bus stops should say exactly where they currently are, with

distances on average of 300 metres. By agreeing with the proposed bus stop distances of

450 metres, she is effectively agreeing that we are in a suburban area yet another

contradiction.

So, which is it? According to the Inspector, I live in Schrödinger's Cottage, which is

simultaneously suburban and urban, depending on which argument she wants to make to

justify the NTA's decisions. She also states on page 94, that there will be, I quote,

‘congregation of passengers for short periods of time at the bus stop location.’ This is

incorrect. A 24 hour bus service is proposed. Therefore, there will be congregation of people

outside my front door all day every day. Due to the fact that this bus stop is replacing two

existing bus stops, there will be even greater pressure on the new proposed bus stop. Added

to this, part of the rationale for BusConnects is to increase passenger numbers even further

and, indeed, the only attempt at an argument for the location of the bus stop is its proximity

to Kilmore Road, which may lose its current bus service, adding more people to the numbers

waiting outside my door. Added to this, two of the three most used routes in the entire

Dublin Bus network are the number 27 and number 15 routes, both of which will stop at this

bus stop.

So her contention that there will be congregation of passengers for short periods of time

does not hold water. Neither, does she or the NTA provide any data on passenger numbers

or waiting times, so her contentions are entirely unevidenced.

She acknowledges in point 6.167, the, I quote, ‘potential annoyance of the bus stop location’.

I wish it was only annoyance I was concerned about.”

80. Insofar as the opposing parties say that the applicant can’t make this point because she

didn’t raise it before the board (Coyne & Anor. v. An Bord Pleanála & Others [2023] IEHC 412,

[2023] 7 JIC 2104 per Holland J), they didn’t press that to the extent of saying that the applicant

was precluded from advancing the point merely because it wasn’t made in legal language. So for

leave purposes I think there was enough to render it arguable to the substantial grounds standard

that the basic issue of a disproportionate interference with her rights was before the board.

81. The NTA says that the applicant already has to deal with people who may be right outside

her front door, which is true up to a point, but the difference between the status quo and the

proposed situation is that such people at present don’t have an infrastructural basis to congregate

in a stationary position outside her dwelling.

82. The NTA also says that the road will be further away from her front door than it is at present,

but it is certainly arguable to a substantial grounds standard that that does not compensate for the

other negative effects of the imposition of a bus stop at that location.

83. The critical reasoning of the board is as follows:

“6.165 The issue for consideration at this juncture is the impact to residents in terms of any

loss of privacy or perceived intrusion into their privacy. I note that concerns were raised

during the non-statutory consultations in relation to the footpath width at this location which

were to be narrowed. The NTA resolved to retain the footpath width following consultation

with the exception of a 1.5 metres pinch point as detailed above. The situation in terms of

pedestrians will therefore remain as is currently. Whilst I acknowledge the residents’

concerns about people sitting on their windowsills, this is not a matter that the NTA can

resolve as part of the proposed scheme.

6.166 The introduction of a bus stop pole will undoubtedly give rise to people congregating

at this location and may give rise to additional people movement at the front of these

properties, however the cottages are located in an urban area that is heavily trafficked and

the benefits of providing a high quality sustainable and active travel network within this part

of the city will provide significant benefits that outweigh the congregation of passengers for

short periods of time at this location.

6.167 Thus, whilst I acknowledge the potential annoyance of having a bus stop adjacent

to these properties the impact to the residents of the [the street concerned] is not of such

significance to warrant refusal of this significant piece of infrastructure which would benefit

all residents along and within the area of the Malahide Road as a whole. I am satisfied that

the applicant has investigated all reasonable alternatives and has made appropriate

accommodations to protect the residential amenity of the [the street concerned].”

84. Insofar as I understood the points being made by the applicant under this heading, the

complaint is one of disproportionality, which at its most basic involves a flawed assessment of the

benefits of the proposed public law act versus the detrimental impact on the applicant concerned

and of the reasoning to weigh the two. A decision-maker can exaggerate the benefits of the

proposed decision, or minimise the detriment to an affected party, or both. Here, as I understood

the applicant’s position, the allegation is both. There are substantial grounds for that allegation,

and in particular for the complaint that the board through adopting the inspector’s report mis-states

the detriment by characterising it as mere “potential annoyance”, while mischaracterising the benefit

as being the benefit of the scheme as a whole. But the essence of the complaint is that the benefit

isn’t the scheme as a whole – that could have gone ahead anyway with the existing bus stops 1219

and 1220 where they are (on broad pavements with real-time information and shelters, outside

shops and the like, not directly outside residential properties, still less ones with no gardens –

arguably far superior designs to the proposed new stop). Sure, the NTA did, as Ms Lynch says,

investigate reasonable alternatives as to locations, but it didn’t find such alternatives to be

impossible or even unduly difficult. It simply preferred the chosen solution as being somewhat better

when judged by technical criteria. The issue as articulated by the board was whether the benefits

of the scheme as a whole warrant the infliction of detriment on the applicant. There are substantial

grounds for contending that this is a flawed approach and that the correct question is whether the

marginal benefit of the chosen solution over the next best option, for example, the status quo,

regarding bus stop location, outweighs what are contended to be severe impacts on the applicant.

The argument that the board failed to make a proportional decision, either by not asking the right

question or by a flawed reasoning, is an arguable proposition to a substantial grounds standard.

85. The lack of challenge to the CPO isn’t a knock-out point in favour of the opposing parties

because that relates to a different property right, not the peaceful enjoyment of her own home.

86. Insofar as the opposing parties predictably say that this is a merits complaint, that isn’t

completely wrong. But nor is it necessarily a complete answer to this specific type of issue. Like

irrationality, a complaint of disproportionality inherently falls into the quasi-merits space where the

court does have to engage in a degree of assessment of the factual basis of the decision. It is often

said that one shouldn’t merely substitute the court’s own view, if hypothetically different from the

decision-maker’s, for the latter, and that’s fine insofar as it goes. The cliché is about not “stepping

into the shoes” of the decision-maker. Shoes aren’t something you can just “step” into anyway,

unless they are clown shoes. So it’s not even a minimally elegant formulation. But let’s not take it

too literally – the concept that the decision is in the first instance one for the decision-maker isn’t

some sort of guarantee that the decision-maker’s footwear confer infallibility – perhaps a secular

conceit inspired by Morris West’s novel The Shoes of the Fisherman (1963, William Morrow, New

York). If the decision-maker has a binary choice, X or not-X, and if position X is found by the court

to be objectively unreasonable, then the effect of that decision (even though it certainly won’t be

phrased along the lines that the court is substituting its own view) is to require the decision-maker

to go down the not-X route. There isn’t anything wrong with that. Nor is the conclusion about what

is unreasonable merely the court’s “own view”. Choosing between reasonable alternatives is a

matter for the executive or administrative body concerned, not the court. But deciding that a

particular conclusion is so unreasonable that it cannot lawfully be adopted is a judicial function. That

is the point I was trying to make in Sherwin v. An Bord Pleanála [2023] IEHC 26, [2023] 1 JIC 2701

at para. 224. I emphasise “trying” because when I said that non-X was a matter of “fact”, it would

in hindsight have been better to phrase that as saying that decision X was not a factual conclusion

that was reasonably open. My point was not that the court should somehow generally take over

factual evaluation by a decision-maker on an issue (like material contravention) that she has

jurisdiction to consider, but rather that if in a given instance the facts relating to a particular issue

that would normally be for an evaluative jurisdiction are so weighed in favour of one outcome that

the other outcome would be unreasonable, then those facts as objectively determined by the court

are decisive. An obvious example is The State (Creedon) v. Criminal Injuries Compensation Tribunal

[1988] I.R. 51, [1989] I.L.R.M. 104, 1988 WJSC-SC 79, [1988] 3 JIC 1403, where the Supreme

Court not only quashed a decision but unanimously told the tribunal what decision it was required

to make on remittal – find for the judicial review applicant: “an Order of Mandamus directing the

Tribunal to consider further her claim for compensation upon the basis that she is entitled to

compensation”. Opposing parties might try to mischaracterise that as trying on the decision-maker’s

shoes – but it isn’t, for the reasons I have attempted to make clear. But let’s not quibble about

phrasing – it all comes to the same thing. The upshot in any event is that the defence in the present

case that the contested issue fell within the decision-making freedom of the board on the merits is

one for the trial and is not something that is sufficiently clear as to preclude there being substantial

grounds for the challenge at this stage.

87. Insofar as the opposing parties say that the applicant already has to cope with passers-by

at the moment, that doesn’t at this stage remove the existence of substantial grounds for saying

that the situation will be severely worsened by creating a focus for congregation of such persons.

Insofar as the argument is that all the concerns were considered and dealt with by the NTA and the

board, that’s a point of defence for the trial but it isn’t so clear as to negative the argument that

there are substantial grounds to the contrary.

88. I can add that the applicant hasn’t pleaded, or sought an amendment in relation to, a breach

of property or privacy rights under the EU Charter or the ECHR, so I don’t need to consider those.

89. The conclusion on core ground 2 is that the applicant has demonstrated substantial grounds

to impugn the decision in the sense indicated in this judgment.

Core ground 3 - reasons

90. Core ground 3 is:

“The decision of An Bord Pleanála to grant approval pursuant to section 51 of the Roads Act,

1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme is invalid

because the National Transport Authority and An Bord Pleanála did not respond in full to the

submissions made by residents in respect of the bus stop to be located at approximate

chainage A6575 outside ... [the street concerned].”

91. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground No. 3

The Applicant

The decision of An Bord Pleanála to grant approval pursuant to section 51 of the Roads

Act, 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme is

invalid because the National Transport Authority and An Bord Pleanála did not respond in

full to the submissions made by residents in respect of the bus stop to be located at

approximate chainage A6575 outside [the properties concerned].

The Board

Core Ground No. 3 does not meet the threshold for leave. Insofar as Core Ground No.3

comprises a complaint as to a failure to give reasons, it is discernible at this leave stage of

these proceedings, that the Board did provide the main reasons for the main issues. The

reasons given by the Board in the Decision were adequate and complied with the relevant

legal principles on reasons and were sufficient to ensure that a person who had

participated in the process and was apprised of the main issues, would know why the

Board granted the Section 51 Approval and why it had not accepted the Applicant’s and

other residents’ objections/submissions. The Inspector expressly and properly summarised

and considered the Applicant’s and other residents’ submissions, with the Inspector

evidently not accepting the submissions made/objections raised for clear and stated

reasons (see e.g., the Table below §32 in the Board’s submissions). The Applicant has not

established to the substantial grounds threshold that the Board failed to respond / provide

adequate reasons for its decision and in relation to not accepting said

objections/submissions.

The National Transport Authority

The submission made by the residents of [the street concerned] was addressed by the NTA

in the Response Document, in particular at Section 2.3.

The issues raised by the residents were addressed by the Board in the Inspector’s Report.

In particular, the NTA attention to pages 19-20, 29-33, 65, 70-75, 86, 87, 93, 94, 235, 236,

238 and 250-255 of the Inspectors Report, and those extracts which are highlighted at §§73

– 76 of the NTA’s Legal Submissions, where the issues were addressed in detail. The manner

in which the issues were addressed discharges the obligation to give reasons and to consider

submissions made as part of the public consultation process.”

92. The obligation to consider submissions involves taking them into account and giving the

main reasons on the main issues: Balscadden Road Residents Association v. An Bord Pleanála [2020]

IEHC 586, [2020] 11 JIC 2501 at §38, O’Donnell v. An Bord Pleanála [2023] IEHC 381, [2023] 7 JIC

0501, insofar as those cases consider caselaw including Connelly v. An Bord Pleanála [2018] IESC

31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, [2018] 7 JIC 1701 (Clarke C.J.), Balz & Anor. v. An

Bord Pleanála [2019] IESC 90, [2020] 1 I.L.R.M. 367, [2019] 12 JIC 1202 (O’Donnell J.)), Sliabh

Luachra Against Ballydesmond Windfarm Committee v. An Bord Pleanála [2019] IEHC 888, [2019]

12 JIC 2017 (Mc Donald J.) at §38. This inherently involves taking the reasoning as a whole: per

Holland J., Monkstown Road v. An Bord Pleanála [2022] IEHC 318, [2022] 5 JIC 3106 at §159,

Shadowmill v. An Bord Pleanála [2023] IEHC 157, [2023] 3 JIC 3106 at §161.

93. Overall while the applicant raises complaints about reasons in relation to issues like design,

architectural heritage and so forth, I think that these are generally not sufficiently major issues to

warrant more reasons than are given, and insofar as they are main issues, sufficient main reasons

are given, in essence that the benefits of the scheme outweigh any contrary arguments under those

headings.

94. But there are substantial grounds for contend that what was a main issue was the personal

impact on the dwelling, privacy and safety of a home owner without a front garden of the

construction of infrastructure such that people congregate right at her front door. There is caselaw

supportive of the argument that the law requires close attention to a significant if not severe impact

on a single individual even in the context of important public works projects. An example is Flannery

& Others v. An Bord Pleanála [2022] IEHC 83, [2022] 2 JIC 2504 where “the impact of the

development on existing actual de facto uses on the grounds of the sites concerned was a sufficiently

major point to require the provision of reasons”, even where that affected a single landowner. The

Supreme Court has said that “[t]he Constitution, in protecting property rights, does not encompass

only property rights which are of great value. It protects such rights even when they are of modest

value”: In re Health (Amendment) (No. 2) Bill 2004 [2005] 2 JIC 1601. There is potential relevance

to the perspective that while in some situations, individual interests must yield to the common good,

there are lines of principle where the law protects the rights of one person, even if she is

outnumbered, and thus protects an individual from injustice even when the outcome would be of

benefit to the community interest, as in the Health (Amendment) Bill case. And finally, in the context

of whether there are substantial grounds, the implicit logic of the argument might appear to be: let’s

not pretend that there isn’t a latent gender perspective to all this that needed to be respected.

95. Are reasons provided? That is open to debate. Certainly there are substantial grounds to

contend not, when judged against the actual concerns of the applicant. Characterising a situation

whereby she would live in permanent anticipatory anxiety of having strangers standing beside her

any time she opens her front door as merely being “annoyance” could arguably, to a substantial

grounds threshold, be seen as a failure to give valid reasons.

96. As regards reasons viewed from an EU law perspective, the CJEU has recently confirmed

that the obligation to state the reasons to the requisite standard does not extend to an obligation to

address every argument of fact and law made by parties during a public consultation process:

judgment of 15 June 2023, Eco Advocacy, C-721/21, ECLI:EU:C:2023: 477 (at §42). So that

doesn’t add anything to the domestic argument.

97. The conclusion on core ground 3 is that the applicant has demonstrated substantial grounds

to impugn the decision. However, lack of reasons from the NTA is not a ground for judicial review.

The issue is whether the board has provided reasons. There are substantial grounds for saying that

the reasons were not sufficient. But the board can’t be condemned for not responding “in full” to

submissions. The substantial ground is concerned only with the lack of reasons in relation to the

impact on the applicant’s rights. The substantive complaint of breach of such rights (as opposed to

reasons for doing so) is covered by core grounds 2 and 4.

Core ground 4 – other breach of rights

98. Core ground 4 is:

the Section 51 Approval constitutes a “Disproportionate impact of Proposal on Residents and

Residential Property in breach of constitutional rights”.

99. Insofar as it complains about other people’s constitutional rights it is a ius tertii: Mohan v.

Ireland and the Attorney General [2019] IESC 18, [2021] 1 I.R. 293, [2019] 2 I.L.R.M. 1, [2019] 3

JIC 2101 at §10 and §26 (O’Donnell J.); Cahill v. Sutton [1980] I.R. 269, [1980] 7 JIC 0901 at 283

(Henchy J.); Hellfire Massy v. An Bord Pleanála & Others [2021] IEHC 424, [2021] 7 JIC 0201 at

§54.

100. Insofar as this relates to alleged disproportionate interference with rights of the applicant

other than those covered by other grounds, one can see substantial grounds for the argument that

there are a number of rights closely related to but conceptually distinct from property rights as such,

in particular the right to privacy, to the dwelling and to personal safety and physical and mental

health, however one wants to phrase that in constitutional terms. Sure the applicant hasn’t fully

particularised these in express terms but they seem fairly obvious. I am going to direct certain

particularisations anyway so I can include that and if anybody disagrees that such matters are

properly covered they should let me know as soon as possible and the matter can be debated. I

did consider whether the right to fair procedures was intended to be included but I don’t think that

that is acceptably clear and I am not going to include that in the particularisation order. The other

more substantive matters are, however, acceptably clear in my view from the applicant’s material,

so spelling them out is mere particularisation, not amendment in the strong sense.

101. The conclusion on core ground 4 is that the applicant has demonstrated substantial grounds

to impugn the decision. However that is limited to impact on the applicant’s rights, not on the rights

of residents generally.

Form of the amended statement of grounds

102. Since leave will therefore be granted, the appropriate step at this stage is to allow an

amended statement of grounds to be filed.

103. Without prejudice to any other procedural rights that the applicant has, this should delete

matters not given leave, and add headings for ease of navigation The only other bit of limited

redrafting that is required is that the complaint of disproportionate impact on rights generally was

argued as both a substantive disproportionality and as a reasons issue, but the layout of the grounds

could be clearer. The easiest way to simplify matters is to allow the applicant to repeat the language

under a disproportionality heading, leaving the language also stand under an reasons heading to be

added. To simply add the reasons heading to what is there would unfairly narrow the point the

applicant has sought to make.

104. The amendments also need to factor in the fact that the opposing parties have sought to

phrase the applicant’s points as core grounds. In that regard I think the best way to deal with things

is to use the opposing parties’ formulae as the starting point for the core grounds, although I have

narrowed the wording with various additional qualifiers (underlined) and used the applicant’s

language as the starting point for particulars of grounds.

105. Order 84 r. 20(4)(b) RSC does allow the court to direct particularisation of the claim:

“The Court hearing an application for leave may, on such terms, if any, as it thinks fit:

(a) allow the applicant’s statement to be amended, whether by specifying different or

additional grounds of relief or otherwise,

(b) where it thinks fit, require the applicant’s statement to be amended by setting out

further and better particulars of the grounds on which any relief is sought.”

106. I think it is appropriate to consider availing of that both for the clarifications I have already

mentioned and to set out the applicant’s complaint in slightly more detail. As regards adding further

particularisation, I don’t want the applicant to be disadvantaged due to lack of legal knowledge, or

to leave things undefined so that there will be legal arguments later, but on the other hand I don’t

want to encourage her to expand her case. (And lest anyone misunderstand, that doesn’t completely

preclude further amendment - it just precludes my encouraging that.) If I were to adjourn the

question of the wording of any particularisation to await correspondence between the parties that

will delay things further because leave can’t be granted until that is sorted out. On balance I think

the least bad approach is to extract from the materials and submissions what I think are the pertinent

particulars and allow them to be included, but if either side thinks this is problematic or needs to be

significantly re-worded they can raise it on the next occasion. I have also added sub-ground

numbers for ease of reference going forward.

107. So the redraft would be as follows (strike-through where leave refused, underlining for

additions):

“CORE GROUNDS

1. The decision of An Bord Pleanála to grant approval pursuant to section 51 of the

Roads Act 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme

is invalid because of the failure of the National Transport Authority to notify affected

residents of the proposed bus stop arrangement in respect of the bus stop to be located at

approximate chainage A6575 outside ... [the street concerned] and failed to follow the

procedures explained in the Public Consultation Submission Report

2. The decision of An Bord Pleanála to grant approval pursuant to section 51 of the

Roads Act 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme

is invalid because it breaches constitutes a disproportionate interference with the Applicant’s

right to quiet enjoyment of her property pursuant to Article 40.3 and 43 of the Constitution.

3. The decision of An Bord Pleanála to grant approval pursuant to section 51 of the

Roads Act, 1993 (as amended) for the Clongriffin to City Centre Core Bus Corridor Scheme

is invalid because the National Transport Authority and An Bord Pleanála did not respond in

full to the submissions made by residents provide adequate reasons in relation to the impact

on the applicant’s rights (as pleaded at core grounds 2 and 4) in respect of the bus stop to

be located at approximate chainage A6575 outside [the applicant’s property].

4. The Section 51 Approval constitutes a disproportionate impact of Proposal on

Residents and Residential Property the applicant in breach of constitutional rights.

PARTICULARS

Core ground 1 – failure to give notice

5. Failure by the NTA to follow Procedure. There was no Notification to the Applicant or

any of the affected Residents by the NTA of the proposed new Bus Stop arrangement, and

there was a material misstatement of the Consultation Procedure in the Application

Documents from the NTA. Neither the Applicant nor any of the Residents received any formal

Notification by Letter as impacted parties at the Third Consultation which the NTA states was

issued in November 2020. Consequently, neither the Applicant nor any of the Residents were

given the opportunity for one-to-one consultations as was their right as affected landowners.

Core ground 2 – breach of rights

6. Breach of Constitutional Property Rights under the Irish Constitution per Article 40.3

and 43 with regard to Applicant’s Constitutional Right to quiet enjoyment of one’s Property

and the expectation that a Property owning Citizen would not be disproportionately affected

by Planning Decisions of An Bord Pleanala or NTA Schemes.

7. In particular (insofar as concerns core grounds 2 and 4):

a. The decision impacted disproportionately on the privacy and personal safety

of the applicant and of her household;

b. The board erred in reasoning by adopting contradictory characterisation of

the area as urban and suburban;

c. The board made an erroneous statement that congregation of passengers

would be for short periods, having regard to the lack of data, the 24 hour

service, the decommissioning of 2 stops, the plan to expand numbers

further, and the demand on the service as it stands;

d. The board erred by mischaracterising the applicant’s safety concerns as

annoyance;

e. The board placed incorrect reliance on accommodations when no relevant

accommodations were proposed insofar as affects the applicant’s concerns;

f. The board incorrectly weighed the detriments to the applicant’s rights

against the benefits of the scheme as a whole when the correct comparison

was with the benefits of the particular location over an alternative bus stop

location such as maintaining the status quo.

Core ground 3 – lack of reasons

8. Detailed and rational residents’ observations insofar as they relate to issues

impacting on the applicant were not responded to in full by the NTA or ABP internal Reports

and the Final Decision specifically in relation to details highlighting the Planning History and

the justification for, location of, and the detailed design of the proposed Bus Stop outside

[the applicant’s property].

Such failings include but are not limited to the following foregoing :-

(1) Lack of careful consideration of proposed removal of the existing Two fully functional

Sheltered Bus Stops and their replacement with merely one metal Bus Stop Sign with no

Shelter. There is no evidence of any such careful consideration in the relevant NTA

documentation.

(2)

Bus Stop No. 1219 was simply omitted prior to Consultation 1 ( without any replacement)

and no justification; Bus Stop No. 1220 was removed prior to Consultation 2 (without

replacement), and no justification. The proposed Bus Stop to be located at [the property

concerned] was introduced at Consultation 3 without any justification.

(3) Flaw in justification for new Bus Stop at Submission of Application "due to proximity

with the new Kilmore Road Stop" ( Preliminary Design Report, Appendix H, Page 44 of 52,

Location Review ), which is a clear post-rationalisation of the planning process.

It is misleading, and appears to be used to justify the “amalgamation” of a Bus Stop.

“Where existing Bus Stops on a route are in close proximity to each other they may be

amalgamated into a single stop. This must be assessed on a case-by-case basis.” ( Appendix

A4.1 – Preliminary Design Guidance Booklet for BusConnects Core Bus Corridor, section 11.

Bus stops ).

(4) Justification for new Bus Stop providing “greater permeability” is not backed up with

details – the Applicant and Residents’ observations clearly set out the flaws in this argument

( Sections 3. & 3.1.).

(5) Alternative locations were demonstrated where the NTA preferred layout could have

been applied and there was an entirely insufficient response to such observations of the

Applicant and the Residents.

(6) Proposed substitute Bus Stop for two existing Bus Shelters was a late-stage design

change severely impacting Private Residences such as that of the Applicant at [the property

concerned] and was not communicated to the disproportionately affected Property owners

such as the Applicant.

(7) Contravention of the proposal with NTA internal design guidelines in the location and

design of the substitute Bus Stop outside the Cottages was not addressed in any way despite

being highlighted by the observations of the Applicant and Residents.

(8) Insufficient footway width to accommodate the substitute Bus Stop outside [the

street concerned].

(9) No reasonable space for the substitute Bus Shelter.

(10) Insufficient sizing of the substitute Bus Stop for expected passenger numbers and

Bus travel demand.

(11) Reduced width of cycle path behind said Bus Stop.

(12) Non application of “ Shared Bus Stop landing zone arrangement (Urban Centres) ”

design for said Bus Stop.

(13) Non-provision of a Bus Shelter for said substitute Bus Stop in contravention of design

standards.

(13a) Disproportionate impact of Proposal on Residents and Residential Property the

applicant in breach of constitutional rights :

(14) The proposed substitute Bus Stop for two other fully operational Bus Shelter Stops

is the only Bus Stop in front of any houses without front gardens along the entire Scheme,

and indeed the only new Bus Stop proposed in front of any residential property.

(15) EIA does not account for impact on the applicant Residents at [the street concerned]

including increased physical danger through accidents due to narrowing of the existing

footpath to accommodate cycle lane and the impediment to safe entrance and exit at the

Front Doors of disproportionately affected Residential Properties due to the congregation of

waiting passengers at a 24hr Bus Stop.

Increased danger of crime being committed against Persons or Properties insofar as that

affects the applicant due to congregation of waiting passengers at a 24 hour Bus Stop.

(15a) Reduced enjoyment of the Applicant’s and Residents Property and Privacy.

(16) No impact assessment provided on expected long-term very negative impact on the

Applicant and Residents of [the street concerned] Malahide Road.

(17) [the street concerned] are the only “ Other Structures of Architectural Heritage

Interest ” (EIA, 16.4.4) actually negatively affected by the entire Bus Connects Scheme.

(18) Residential amenities of the Properties further reduced after decades of incremental

negative impacts of poor infrastructure planning.

(19) Loss of Property Values of Applicant and Residents.

(20) Existing antisocial behaviour by passers-by likely to be aggravated by increased

times spent waiting at bus stop and no An Garda Siochana Assessment was provided.

Core ground 4 – disproportionate impact on other rights

9. Disproportionate impact on the applicant in breach of constitutional rights in

particular the right to privacy, to the dwelling and to personal safety and physical and mental

health.

10. Reduced enjoyment of the Applicant’s Property and Privacy.”

108. I would also give liberty to correct the format of the relief sought which should be along the

following lines:

“An order of certiorari removing for the purpose of being quashed the approval by An Bord

Pleanála on 8th January 2024 (under ref. ABP-313182-22), under section 51 of the Roads

Act 1993 of the proposed road development consisting of the construction of the Clongriffin

to City Centre Bus Corridor Scheme.”

109. Normally an applicant would also claim for further and other relief and costs. Further and

other relief isn’t perhaps strictly a necessary claim in judicial review (although it might be in other

contexts) because of the express power to grant unpleaded substantive reliefs under O. 84 r. 19

RSC, but it is always a tabula in naufragio. Costs might however be a necessary claim, and it seems

a bit harsh to say that the applicant can’t recover expenses (let alone costs if she gets representation

at a future point) because she didn’t add this. My provisional inclination would be to allow those

two standard generic reliefs to be added in the amended statement of grounds if the applicant so

wishes. If anyone wants to dispute that they can apply appropriately.

Summary

110. In outline summary, without taking from the more specific terms of this judgment:

(i) alleged defects in pre-statutory consultation are not a ground for certiorari if they

have been remedied in the statutory consultation process;

(ii) insofar as the applicant has raised issues regarding the non-implementation of the

Aarhus convention in relation to pre-application consultations, that isn’t properly

pleaded and no amendment was sought, and in any event is essentially a

transposition-type argument which requires State respondents to be joined;

(iii) the applicant has, however, demonstrated substantial grounds for alleged

disproportionate impacts on her property and other rights and for a lack of reasons

in that regard;

(iv) to avoid further procedural problems, and in the interests of clarity, the applicant’s

pleadings should be reformatted and further particulars directed as outlined in this

judgment; and

(v) on that basis leave is granted in the terms set out in the judgment and refused in

all other respects.

111. Before concluding maybe I could take the risk of saying that it isn’t apparent to me that this

dispute is utterly beyond the realm of settlement. If hypothetically that were to become a possibility,

it goes without saying that the court will assist in any way possible. But if not, I won’t hold that

against anybody.

112. If matters are going forward, I might, as in Dowling v. An Bord Pleanála [2024] IEHC 249,

[2024] 5 JIC 0103, draw attention to the benefits for parties and indeed for the court of litigants

obtaining legal representation, which may be easier for the applicant to arrange now that she has

leave. While the applicant did well to get across the first line of defences without such

representation, especially against teams of lawyers drawn from the leading ranks in a list where the

standard of practitioner intellectual fire-power is exceptionally high to begin with, her immediate

reward for scrambling over that hurdle is to discover a panorama of further procedural landmines

laid before her, stretched to the horizon. Especially given that the threshold at this point is only

substantial grounds rather than actually having a good point, she shouldn’t take excessive comfort

from the present decision on its own, even acknowledging, without at all taking from the helpful

submissions of the professionals, that her own submission was very persuasive and well-delivered.

Order

113. For the foregoing reasons, it is ordered that:

(i) there be an order granting leave on standard terms, on the basis of liberty to file an

amended statement of grounds in the terms indicated in the judgment, and refusing

leave in all other respects;

(ii) there be an order under Order 84 r. 20(4)(b) RSC directing further particularisation

of the claim, as set out in the judgment;

(iii) the amended statement be filed and served within 2 weeks of delivery of the

judgment and the originating notice of motion be filed and served within a further 2

weeks to be returnable for 9th September 2024;

(iv) the applicant be given liberty to file an affidavit before that date formally exhibiting

all documents relied on that have been put before the court but not as yet been

exhibited; and

(v) the formal order be perfected forthwith on the basis of the applicant’s expenses

being reserved.