High Court quashes Planning Commission approval regarding bus gates affecting a filling station but dismisses other challenges.

Lissan Coal v ABP & NTA [2026] IEHC 255

THE HIGH COURT PLANNING AND ENVIRONMENT JUDICIAL REVIEW Record No. 2024/1052 JR [2026] IEHC 255

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED BETWEEN:

LISSAN COAL COMPANY (IRELAND) LIMITED and LCC PROPERTIES AND INVESTMENTS (IRELAND) LIMITED Applicants and AN BORD PLEANÁLA, THE NATIONAL TRANSPORT AUTHORITY, IRELAND & THE ATTORNEY GENERAL Respondents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 30 APRIL 2026

CONTENTS

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 30 April 2026.............................................................1

RELIEFS SOUGHT ...................................................................................................................................................4

INTRODUCTION, FACTS & LISSAN’S RISK DECISION .............................................................................................5

Pre-CPO/Scheme – from November 2017........................................................................................................7

Figure 1 – “Map 28 Emerging Preferred Route” - November 2018 - Extract ...............................................9

Lissan’s Risk Decision ................................................................................................................................. 11

NTA e-mail of 8 March 2019 and thereafter ............................................................................................. 14

Development Potential if not a Filling Station .......................................................................................... 18

S.51 Approval Application June 2022, Scheme Description & EIAR .............................................................. 18

Figure 2 – Scheme Map 29 - Extract .......................................................................................................... 19

EIAR on Impact on Filling Station .............................................................................................................. 20

CPO & Lists of Public Rights of Way to be Extinguished, Restricted or Interfered with ............................... 21

S.51 Process - Lissan Submission August 2022, NTA Reply January 2023 & Lissan Reply July 2023 ............. 23

INSPECTOR’S REPORTS & IMPUGNED DECISIONS ............................................................................................. 25

Inspector on Lissan Objection & Observation Thereon ................................................................................ 28

Impugned Decisions ...................................................................................................................................... 30

OVERVIEW OF LISSAN’S COMPLAINT ................................................................................................................ 30

LIVE CORE GROUNDS......................................................................................................................................... 32

CG3 – CPO Does Not Authorize Interference with Public Right Of Way on Old Cabra Road ........................ 32

CG4 - CPO Confirmation in Breach of Fair Procedures .................................................................................. 33

CG5 – CPO an Unconstitutional Unjust Attack on Property Rights ............................................................... 33

Lissan Coal v ABP & NTA [2026] IEHC 255

CG6 - S.51 Approval – Material Error: Filling Station Could Continue in Business ........................................ 33

CG7 – No Oral Hearing................................................................................................................................... 34

CG8 – Legislation Unconstitutional ............................................................................................................... 34

PRELIMINARY ISSUES ......................................................................................................................................... 34

NTA’s Position - Standing & Evidential Matters ............................................................................................ 34

Commission’s Position - Evidential Matters .................................................................................................. 35

Lissan’s position - Standing & Evidential Matters ......................................................................................... 35

Preliminary Issues - Decision ......................................................................................................................... 36

LEGISLATIVE CONTEXT & COMMENTARY THEREON ......................................................................................... 37

National Transport Authority & Public Transport Infrastructure .................................................................. 37

Road Traffic Legislation ................................................................................................................................. 38

Proposed Road Development – Approval & EIA - Roads Act 1993 ............................................................... 38

Terminology - “Proposed Road Development”/“Scheme” ....................................................................... 38

S.51 Approval & EIA ................................................................................................................................... 39

CPOs – Making, Form, Confirmation, Oral Hearings & Effects ...................................................................... 40

Public Rights of Way – Extinguishment, Restriction & Interference ......................................................... 41

Form & Content of CPOs – Restrictions of & Interferences with Public Rights of Way ............................ 42

S.213(2)(a) PDA 2000 – Does it Encompass Restriction of or Interference with a Public Right of Way such

that a CPO must List it? ............................................................................................................................. 45

Conclusion – S.213(2)(a) PDA 2000 Does Not Require that a CPO List Restrictions to & Interferences with

Public Rights of Way - No Lands are to be Acquired From Lissan – Ground 3 .............................................. 49

No Disadvantage to Lissan......................................................................................................................... 49

CPOs – Compensation, Injurious Affection, S.68 of the 1845 Act, & McCarthy/Wildtree Principles ........... 50

McCarthy/Wildtree Principles ................................................................................................................... 53

Moto Hospitality ........................................................................................................................................ 57

Timing of s.68 Compensation Claim .......................................................................................................... 58

Assumption of no Statutory Compensation, Failure to List in CPO & Whether to Decide Constitutional

Issues ............................................................................................................................................................. 58

Alleged Inability to Claim Compensation by Reason of Failure to List in CPO or Serve Notice To Treat –

Decision ......................................................................................................................................................... 60

GROUND 5 – UNJUST ATTACK ON CONSTITUTIONAL & ECHR PROPERTY RIGHTS ........................................... 62

Ground 5 & Lissan’s Position ......................................................................................................................... 62

G5 – Opposing Positions ................................................................................................................................ 63

G5 - Introduction & Overall Significance Of Constitutional Issues ................................................................ 65

G5 - Frontager’s Private Right Of Access To Highway & Public Right Of Passage On Highway ..................... 65

Interferences with Frontager’s Rights Without Compensation ................................................................ 67

G5 - Public Nuisance ...................................................................................................................................... 70

General ...................................................................................................................................................... 70

Public & Private Nuisance.......................................................................................................................... 70

Particular Damage in Public Nuisance on the Highway - Loss of Custom/Passing Trade – Moto, Wilkes,

Gravesham, Colour Quest & Vasiliou ........................................................................................................ 72

Will Lissan suffer Special Damage sounding in Public Nuisance? ............................................................. 76

A Philosophical Difference – Whether Costs should be Internalised? ...................................................... 76

Lissan Coal v ABP & NTA [2026] IEHC 255

Do Bus Gates Obstruct the Highway within the Meaning of Public Nuisance? ........................................ 76

Statutory Authority – Introduction............................................................................................................ 77

Nature of Statutory Authority of Public Nuisance – Smyth v RPA ............................................................ 79

G5 - Constitutional & ECHR Property Rights ................................................................................................. 83

Bunreacht na hÉireann, Articles 40.3.1 & 43 ............................................................................................ 83

Earlier Cases, ESB v Good (2025) & Jones (2024) ...................................................................................... 84

Application of Law to Lissan’s Case ........................................................................................................... 98

ECHR ........................................................................................................................................................ 101

Interferences with Frontager’s Rights Without Compensation .............................................................. 103

G5 - Livelihood ............................................................................................................................................. 103

G5 - Unjust Attack on Constitutional Rights - Conclusion ........................................................................... 105

GROUNDS 5 & 8 - CONCLUSION ...................................................................................................................... 105

GROUND 7 – FAILURE TO HOLD ORAL HEARING............................................................................................. 106

G7 - Legislation ............................................................................................................................................ 107

G7 - Facts ..................................................................................................................................................... 107

G7 – Lissan’s Position .................................................................................................................................. 108

G7 - Opposition............................................................................................................................................ 109

G7 - Discussion & Decision .......................................................................................................................... 110

GROUND 3 – CPO FAILS TO LIST BUS GATES’ INTERFERENCE WITH PUBLIC RIGHT OF WAY .......................... 115

G3 - Lissan’s Position ................................................................................................................................... 116

G3 - Opposition............................................................................................................................................ 117

G3 - Discussion/Decision ............................................................................................................................. 117

GROUND 4 – CPO FAILS TO PROVIDE FOR INTERFERENCE WITH OR RESTRICTION OF PUBLIC RIGHT OF WAY

......................................................................................................................................................................... 119

G4 - Lissan’s Position ................................................................................................................................... 119

G4 – Decision ............................................................................................................................................... 119

GROUND 6 – S.51 APPROVAL – BUSINESS VIABILITY IMPACTS ....................................................................... 120

Particulars ................................................................................................................................................ 121

G6 – Lissan’s Position .................................................................................................................................. 121

G6 – Commission’s Position ........................................................................................................................ 122

G6 – NTA’s position ..................................................................................................................................... 123

G6 – Discussion & Decision ......................................................................................................................... 124

Objectivity & Function of EIA .................................................................................................................. 124

Sensitive Receptors ................................................................................................................................. 125

Facts & Commentary Thereon................................................................................................................. 127

Analysis .................................................................................................................................................... 131

Environmental Effect? – Leth - & Significance of Effect .......................................................................... 135

Planning Consideration? .......................................................................................................................... 139

OVERALL CONCLUSION & OBSERVATIONS ON REMEDY ................................................................................. 140

Lissan Coal v ABP & NTA [2026] IEHC 255

RELIEFS SOUGHT1

1. The Applicants (“Lissan” and “LCC” - I will, in what follows, generally refer to “Lissan” or “the Applicants” as encompassing both Lissan and LCC save where the context suggests otherwise) in judicial review seek to quash, in whole or in part, the “Impugned Decisions” of the First Respondent (“the Commission”2) made on 21 June 2024 to,

• Approve, pursuant to s.51 of the Roads Act 1993,3 and ss.215 and 217C(2) PDA 2000,4 the Blanchardstown to City Centre Core Bus Corridor Scheme (“the s.51 Approval”5 and “the Scheme”).

• Confirm, pursuant to s.76 of the Housing Act 1966,6 and s.2147 and 217C(1) PDA 2000, the Bus Connects Blanchardstown to City Centre Core Bus Corridor Scheme Compulsory Purchase Order 2022 (“the CPO Confirmation”8 and “the CPO”).

Both the Scheme and CPO had been submitted to the Commission, for approval and confirmation respectively, by the Second Respondent (“the NTA”).

2. In addition or alternatively, Lissan seeks the following reliefs:

• A Declaration that the statutory provisions on the basis of which the CPO was confirmed and the s.51 approval granted are invalid as repugnant to Articles 40.3 and 43 of the Constitution9 and/or contrary to Article 1 of the First Protocol of the European Convention on Human Rights.10 These statutory provisions are identified as “including”11 o Part IV of the Roads Act 1993.

1 Headings are not a curial part of this judgment and do not circumscribe the content thereunder. They are provided for navigational assistance only.

2 Since trial, the Board has become An Coimisiún Pleanála. As the expense of some anachronistic references I have generally referred to it as the

Commission in what here follows.

3 All references to statutes in this judgment are to statutes as amended.

4 Planning and Development Act 2000 as amended. All references to statutes are to such statutes as amended unless otherwise indicated. S.215 relates

to “Transfer of certain Ministerial functions under Roads Acts, 1993 and 1998, to Board.” S.217C relates to “Board’s powers to make decisions on

transferred functions.”

5 ABP-313892-22.

6 S.76 reads: “A housing authority acquiring land compulsorily for the purposes of this Act may be authorised to do so by means of a compulsory

purchase order made by the authority and submitted to and confirmed by the Minister in accordance with the provisions contained in the Third

Schedule to this Act. §5 of the Third Schedule empowered the Minister to confirm a CPO.

7 Transfer of Minister’s functions in relation to compulsory acquisition of land to Board.

8 ABP-313961-22.

9 Article 40.3 reads in part: “1° the state guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal

rights of the citizen. 2° the state shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the

life, person, good name, and property rights of every citizen.”

Article 43 reads: “1 1° the State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private

ownership of external goods. 2° the state accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general

right to transfer, bequeath, and inherit property.

2 1° the state recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this article ought, in civil society, to be

regulated by the principles of social justice. 2° the state, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view

to reconciling their exercise with the exigencies of the common good.”

10 Article 1 of the First Protocol ECHR reads: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be

deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international

law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of

property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

11 What follows is the full pleaded list – the word “including” is pleaded. Lissan Coal v ABP & NTA [2026] IEHC 255

o S.44 of the Dublin Transport Authority Act 2008 (“DTA 2008”).

o S.184 of the Local Government Act 2001.

o Ss215 and/or 217C PDA 2000.

o S.10 of the Local Government (No. 2) Act 1960.12 and/or o Ss.63 and/or 68 of the Lands Clauses Consolidation Act 1845 (the “1845 Act”).

• A Declaration that the defence of statutory authority in the law of public nuisance or otherwise is unconstitutional in so far as it precludes, or does not provide for, an exception which would allow for the recovery of compensation in respect of o the reduction in the value of LCC’s land, and/or o the substantial loss to or likely closure of LCC’s business, at “Go Service”, Old Cabra Road, Cabra West, Dublin 7, in the circumstances outlined in this case.

• A Declaration that the NTA may not interfere with and/or restrict any public right of way along Old Cabra Road and/or at such other locations where the s.51 Approval proposes such interference and/or restriction, other than those referred to in Part III (Section B) of the Schedule to the CPO.

INTRODUCTION, FACTS & LISSAN’S RISK DECISION

3. The Scheme is one of 12 similar radial Core Bus Corridors in the “BusConnects” programme for Dublin. That programme includes the BusConnects Dublin - Core Bus Corridors Infrastructure Works – of which works the Scheme is part. The EIAR for the Scheme14 describes it generally as running for about 11 km inbound from the Blanchardstown/Mulhuddart junction of the N3 road via, inter alia, Blanchardstown Shopping Centre, the Navan Road, the Old Cabra Road, Prussia Street, Manor Street and Stoneybatter to the

North Quays in Dublin City centre. To state the obvious, these are “public roads” – for which, at least in this

judgment, “public right of way” and “highway” may be regarded as synonyms.

4. The EIAR says that this access corridor is currently characterised by traffic congestion and, while bus lanes exist on most of the route, buses and cyclists compete for space with the general traffic, diminishing the attractiveness of these sustainable transport modes. The primary objective of the Scheme is to facilitate modal shift from car dependency by the provision of enhanced walking, cycle, and bus infrastructure, thereby contributing to an efficient, integrated transport system and a low-carbon and climate-resilient city. It is intended to significantly enhance travel by public transport by providing bus priority and improved pedestrian and cycling infrastructure. Particularly, the Scheme is to “Enhance the capacity and potential of

12 As substituted by S.86 of the Housing Act, 1966 as amended by Section 6 and the Second Schedule of the Roads Act, 1993, and Section 76 of the

Housing Act 1966 and the Third Schedule thereto.

13 Identified in the Transport Strategy for the Greater Dublin Area 2016-2035.

14 Environmental Impact Assessment Report as required by the EIA Directive - Directive 2011/92/EU on the assessment of the effects of certain public

and private projects on the as amended by Directive 2014/52/EU - and s.51 of the Roads Act 1993. See Generally, Chapter 1.

Lissan Coal v ABP & NTA [2026] IEHC 255

the public transport system by improving bus speeds, reliability and punctuality through the provision of bus lanes and other measures to provide priority to bus movement over general traffic movements”. The EIAR states that the Scheme

“will improve both the overall journey times for buses along the route and their journey time reliability, by providing increased bus priority infrastructure. The result will be increased journey reliability, by largely removing interaction between bus traffic and general traffic, thereby delivering significant benefits to the travelling public and to the environment.”

5. The Scheme is complex. As its name suggests, its primary feature is “21.2 km (two-way) of bus priority infrastructure and traffic management”. It will require both appreciable physical changes to, and in the vicinity of, existing roads on the route and regulatory management of the resulting road space. It is a encompasses cycling and pedestrian facilities.15 Old Cabra Road is too narrow for continuous bus lanes and general traffic lanes in both directions. Accordingly, and in accordance with its premise, the Scheme will prioritise public transport and prohibit general through-traffic on Old Cabra Road between the Navan Road/Old Cabra Road/Ratoath Road Junction and the North Circular Road, allowing only public transport, local access traffic, cyclists, and pedestrians on that stretch. Through vehicles will be diverted via alternative routes. So the Scheme envisages bus gates at, inter alia, locations which, as it were, bracket the stretch of the Old Cabra Road onto which the Site fronts. These gates are to be north west of the Site - just south east of the Navan Road/Old Cabra Road/Ratoath Road Junction - and south-east of the Site – at the Old Cabra Road Railway Overbridge.

6. Lissan own and, since May 2022, operate a “Go Service” self-service, unmanned petrol filling station business, (the “Filling Station”) at 87- 89 Old Cabra Road, on the southern side of Old Cabra Road, Cabra West, Dublin 7 (the "Site"). Lissan bought the Site in February 2016 for €600,000 and operates the Filling Station. LCC now owns the Site.

7. The Site is on the stretch of Old Cabra Road between the Navan Road to the north-west and the North Circular Road to the south-east. The Site, of about 0.1 hectares, has frontage to Old Cabra Road of about 43m,16 in which frontage two entrances/exits give direct vehicular access and egress between the Filling Station and Old Cabra Road. On appeal17 by third parties, the Commission granted planning permission for the Filling Station in January 2019.18 Lissan claims to have invested over €4 million in the Site and business, including purchase, planning and construction costs – the latter of €1.8 million. Nothing turns in these proceedings on the precise quantum of the investment. It was clearly substantial.

15 As to what follows here, see, inter alia, the affidavit of Diarmuid Healy for the Applicants sworn on 17 April 2024. See also the exhibited Scheme

documents.

16 Colloquially, Old Cabra Road is clearly a “main” road.

17 In January 2018, Dublin City Council decided to grant permission for the Filling Station described as, inter alia, the construction of a new fuel

forecourt with 3 no. forecourt fuel pumps and forecourt canopy, control / store and offset fill buildings, air and water services area, underground storage

tanks as well as other associated development works.

18 ABP Ref. No. 300958-18. Lissan Coal v ABP & NTA [2026] IEHC 255

8. The Scheme will not, technically, restrict the traffic – in terms of vehicle type – actually passing the

Filling Station. And vehicles exiting the Filling Station will be able to travel freely in either direction. But the

two “bus gates” on the Old Cabra Road either side of and some distance from the Filling Station19 will in effect prevent inbound and outbound through traffic by private motor vehicles along the Old Cabra Road passing the Filling Station. Broadly, all accept that, even though public access to the Filling Station by a circuitous route (Glenbeigh Road) will remain, the bus gates and traffic restrictions will in reality remove over 90% of the private motor traffic from the stretch of Old Cabra Road onto which the Filling Station fronts and so will remove over 90% of the passing trade on which its viability depends. While the point has been put in official documents in various less alarming – indeed, regrettably euphemistic – ways, there is in the end no real dispute but that, in reality the Scheme and specifically the bus gates will put the Filling Station out of business.

9. Lissan in essence assert that, as matters stand on foot of the Impugned Decisions, their business will be ruined by the Scheme, without compensation and unlawfully in breach of their constitutional and legal rights.

PRE-CPO/SCHEME – FROM NOVEMBER 2017

10. Lissan attempts to make something of the fact that the NTA was a statutory consultee in Lissan’s planning application but made no submission in that process. There is nothing in that attempt:

• First, the NTA is not obliged to make a submission or observation in a planning application.

• Second, and at least generally, any such obligation could not be on pain of its breach fettering the NTA’s later exercise of other statutory powers and discretions.

• Third, on the facts, the point is anachronistic. As the NTA points out, the planning application was made in November 2017 and Dublin City Council decided in January 2018 to grant it. But the NTA did not publish, as a discussion document, the Core Bus Corridors Project Report until June 2018.

11. The NTA’s Core Bus Corridors Project Report discussion document of 12 June 201820 set out draft Bus Corridor proposals - including the Blanchardstown to City Centre Core Bus Corridor. An indicative route map - Map 5 - under the heading “Additional Specific Challenges on Route”, states: “Old Cabra Road and Prussia Street: In order to provide bus lanes, a proposal is to remove general through traffic on these two streets. Local access would still be maintained including to the shopping centre.”21 The NTA deposes and I accept that the “proposal that general through traffic would be removed on Old Cabra Road and Prussia

19 The papers referred also to other bus gates but I was absolved of their consideration – Day 1 12:15.

20 A copy of this Core Bus Corridors Project Report 2018 is well-buried in the Appendix to the Core Bus Corridor Scheme Public Consultation Report

2018-2022 – Exhibit AG1 Tab 1. The relevant map and text are further buried in an Appendix to that Core Bus Corridors Project Report 2018.

21 Emphasis added. Lissan Coal v ABP & NTA [2026] IEHC 255

Street was made public since June 2018”.22 This is important. One must presume that Lissan, as a competent commercial enterprise taking, doubtless, a keen interest in the matter, must have noted, in June 2018 and before it even had planning permission for the Filling Station, at least the explicit prospect of removal of “general through traffic” on Old Cabra Road.

12. On 23 November 2018, the NTA wrote to Lissan stating that

“the proposals contained in the Emerging Preferred Route for the Scheme for the Blanchardstown to City Centre Core Bus Corridor may impact on part of your property. An extract from a layout map showing an indicative layout of the scheme in the vicinity of your property is attached. The plan shows where the car lanes, bus lanes, cycle lanes and footpaths will be. … We do wish to reiterate that these are proposals only which are not fixed or finalised. If any …. land was ultimately necessary to be acquired from your property, appropriate compensation would have to be paid.”23

The letter offered a one-to-one meeting to discuss the project. Lissan did not take up the offer.

13. Lissan emphasises the underlined words above almost as if they rendered it prudent of Lissan to ignore the proposals in the letter. That is not so – if so, why bother sending the letter? In truth, this letter represents part of a proper, prudent, early and, in respect of Lissan (and no doubt others), targeted consultation process initiated by the NTA. The letter of 23 November 2018 makes clear that the Emerging Preferred Route was no mere straw in the wind: it was described as, subject to a consultation process, “the

proposal which, …. is considered to offer the best solution to improve the bus and cycle network.”24 Lissan will

have properly been expected, of its commercial competence and in its own interests, to carefully consider the contents of the letter and alert itself to any risk they may pose to its interests. Any failure to do so was at its own peril.

14. “Map 28: Emerging Preferred Route”, attached to the NTA’s letter of 23 November 2018, depicted

• blue bus lane markings to the north-west of the Filling Station (inbound) and to the south-east of both the Filling Station and the junction of Old Cabra Road and Glenbeigh Road (outbound).

• a two-way vehicular carriageway on the Old Cabra Road at the location of the Site open to general traffic. But it is clear that the bus lanes on either side would in reality eliminate general through traffic and limit general traffic to access and egress via Glenbeigh Road.

I am satisfied that a proper analysis of Map 28 Emerging Preferred Route discloses that, albeit only as an Emerging Preferred Route, the NTA had in mind a scheme which would, as the Scheme later adopted and of which Lissan complains did, at very least highly restrict, if not eliminate, through traffic on the Lower Cabra Road past the Site - as Figure 1 below explains.

22 Affidavit of Aidan Gallagher Sworn 25 February 2025.

23 Emphases added.

24 Emphasis added. Lissan Coal v ABP & NTA [2026] IEHC 255

15. It is also clear to me that this depiction was, in its essentials and as relevant to the viability of the Filling Station, very similar to the Scheme later adopted.

Figure 1 – “Map 28 Emerging Preferred Route” - November 2018 - Extract

• I have circled the Site on Old Cabra Road.

• The city centre is to the south-east of the Site. North-west of the Site, just off the Figure, lies a “Major Junction” – of Old Cabra Road/Ratoath Road25 with the Cabra Road/Navan Road.26 Old Cabra Road runs south-east from the Major Junction to the North Circular Road.

• Bus Lanes are depicted in Blue. While they may vary somewhat as to hours of operation, any reader – certainly any reader such as Lissan with usual anxiety for its business and access to expertise - would infer at least the likelihood that in very considerable degree most traffic other than buses, other public service vehicles and bicycles, would be excluded from those lanes.

• There is a bus lane running on Old Cabra Road from the Major Junction to the north-west, in towards the city centre. It ends at a point clearly designed to allow local access to and egress from houses on the northern side of Old Cabra Road. While such minor local traffic could travel towards the city centre on Old Cabra Road, it is clear that the bus lane depicted would prevent in-bound through traffic from the Major Junction to the north west along Old Cabra Road into the city.

• There is an outbound bus lane running on Old Cabra Road from the south-east to a point just short of

25 R805. The Ratoath Road is the outbound continuation of the Old Cabra Road.

26 R147. The Navan Road is the outbound continuation of the Cabra Road. Lissan Coal v ABP & NTA [2026] IEHC 255

the “signalised junction”. It would prevent outbound through traffic from the south-east along Old Cabra Road.

• The “signalised junction” is that of Old Cabra Road with Glenbeigh Road. It is clear that the only outbound general traffic (as opposed to busses and cyclists) along Old Cabra Road will be that emanating from Glenbeigh Road.

16. While hours of operation of the bus lanes might affect the detail and degree of effect, the net result of the Emerging Preferred Route depicted in this Map 28, if effected, would have been a loss of inbound and outbound passing trade to the Filling Station of broadly the same order as that which will be caused by the approved Scheme. I may say that I discerned this from my own examination of this Map 28. But it is confirmed by the Affidavit of Aidan Gallagher for NTA,27 to the effect that this Map 28 “made it clear that the proposal would be to remove general through traffic on Old Cabra Road and meant that the Filling Station would only be accessible by private car via Glenbeigh Road.”

17. Daniel Loughran deposes for Lissan28 that “While the NTA’s letter dated 23 November 2018 and "Map 28: Emerging Preferred Route" were received, I say and believe that these communications did not adequately explain the catastrophic impact the proposed scheme would have on the viability of the Applicants’ business” and that “it was entirely unclear from Map 28 that the proposal would reduce passing traffic on the Old Cabra Road by approximately 92 per cent and/or that private vehicle use of the Old Cabra Road was intended to be limited to local access only.” I do not impugn Mr Loughran’s account of Lissan’s subjective interpretation of the position. But as this is a matter of the objective interpretation of the documents in question, I respectfully disagree with him. Lissan were objectively put on notice in November 2018 of the risk of the loss of its passing trade. Indeed, Map 5 in the June 2018 Report, in the public domain, had said clearly that the removal of through traffic on the Old Cabra Road was in prospect. Mr Gallagher deposes, and I agree, that “the Applicants were on actual notice of the emerging proposals for the route, including that general through traffic along Old Cabra Road would be removed, since the NTA letter dated 23 November 2018 which was sent prior to the grant of planning permission on 21 January 2019”.

18. Map 28 Emerging Preferred Route also envisaged a single outward bus lane on the southern (Site) side and a cycle lane on the opposite side - which would have required some road widening and hence land acquisition from the Site. That is not required by the Scheme approved. The CPO does not encompass acquisition of any land from Lissan.29

19. The letter of 18 November 2018 also alerted Lissan to an imminent public consultation process as the Emerging Preferred Route proposals would be “published in full shortly to get public feedback in relation to them. No decisions have been made to proceed with these proposals, and none would be taken until we

27 Sworn 25 February 2025.

28 Affidavit sworn 17 April 2025.

29 From the second round of non-statutory public consultation on, it was no longer proposed to acquire lands from the Applicants because the updated

proposal included a shorter outbound bus lane on Old Cabra Road at this location and it was no longer necessary to widen the road at this location.

Lissan Coal v ABP & NTA [2026] IEHC 255

have concluded the consultation process”. Again, any failure to participate was at Lissan’s own peril. Map 28 Emerging Preferred Route was in fact part of an “Emerging Preferred Route Option: First Round of Non- Statutory Public Consultation” which the NTA held from November 2018 to May 2019 and for which it published a consultation document which included Map 28 Emerging Preferred Route.30 That consultation document also included following text:

“It is proposed that public transport, local traffic and cyclists only are permitted on the section of the Old Cabra Road between the Ratoath Road junction31 and North Circular Road with through traffic prohibited on this link.” 32

20. It was, therefore, perfectly clear from documents repeatedly published by the NTA and in the public domain in 2018 and over a year before they started construction of the Filling Station – which documents, in its own interest, Lissan should have consulted and on which it should have taken expert advice if needs be - that there was a real prospect of prohibition of through traffic, and hence loss of the passing trade, on the Old Cabra Road.

Lissan’s Risk Decision

21. In short, if Lissan did not see from Map 5 in November 2018 the risk to their business of which they now complain, they ought to have seen it and cannot blame others for their ignorance of it prior to their investing in the Site. If Lissan’s eyes were not open to the risk to its contemplated Filling Station business from, at latest, the NTA’s letter of 23 November 2018 and attached map implied, they should have been.

22. On 28 February 2019, citing liaison with “experienced planning and building experts”, Lissan wrote to the NTA by letter headed “Objection to Emerging Preferred Route”. They asserted that the proposed road widening would have a significant and detrimental impact on the Site which was at that point being made ready for the construction of the Filling Station in accordance with planning permission and by way of a considerable capital investment. The letter detailed foreseen impacts of the intimated land acquisition for road widening33 and suggested that “a reasonable alternative to your current proposal would be to commence the road widening after our site adjacent to Earls Court”. As stated above, the road widening and hence the compulsory purchase of part of the Site, is no longer intended.

30 The 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p116.

Map 28: Emerging Preferred Route is on page 174.

31 i.e. the Junction next North-west of the Site at which the Scheme now intends a bus gate. – see Map 27 Emerging Preferred Route on page 174 of

the 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022.

32 The 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, §2.2.3 is at p129.

33 “The current proposal will impact on the following aspects of our site:

• Eliminate the pump lane closest to the road therefore reduced facilities for customers.

• Underground Tanks could be structurally undermined when widening construction works commence with the potential for significant environmental

impact …” Lissan Coal v ABP & NTA [2026] IEHC 255

23. However Lissan’s letter of 28 February 2019 said nothing of the prospect, explicitly published in 2018, that through traffic would be prohibited on the Old Cabra Road (“through traffic prohibited on this link.” 34) – as was in any event apparent from Map 28 Emerging Preferred Route. Their letter expressed no concern at the clearly implicit prospect of the loss of its passing trade. It is not apparent that Lissan had appreciated the potential implications of the Emerging Preferred Route proposals for their passing trade as described above. However, and clearly, they cannot complain that they had not been adequately informed in that regard - they had had the benefit of Map 28 Emerging Preferred Route and expert assessment of the Emerging Preferred Route.

24. Filling Station construction did not start until January 2020. The NTA by letter to Lissan of 31 January 2023 asserted that the Filling Station “was built in full knowledge of the emerging CBC scheme proposals following a grant of planning permission for the development by An Bord Pleanála in January 2019”. Lissan replied by submission of 12 July 2023 that this was “an entirely incorrect characterisation” on the basis that the NTA had made no comment in the planning process which resulted in Lissan’s planning permission, and that Lissan “had made a significant investment … including the purchase of the site and the appointment of a design team”. While that may be true, it is notable that in their submissions of 30 August 2022 in the S.51 Process and again in the affidavit of its director, Michael Loughran, sworn on 16 August 2024, Lissan asserts that

“The extent of financial investment has been wholly based on the extent of due diligence carried out in respect of the subject site prior to the lodgement of the planning application to develop a service station on the site. This due diligence, which took the form of extensive traffic assessment and modelling identified that the site would represent a highly lucrative location for the establishment of a petrol/service station due to its position on an arterial route into Dublin city centre.”35

25. Of this passage, I observe that

• The Site had been bought in 2016 – at the same general risk as any such commercial purchase.

• The planning application had been made in November 2017.36

• No doubt the BusConnects Scheme evolved over time – as is the nature of such schemes. Indeed, in November 2018 it was described as “the Emerging Preferred Scheme”. There is no suggestion that the NTA was dilatory in providing to Lissan the information it provided in November 2018 – including Map

28 Emerging Preferred Route.

• Lissan does not appear to have consulted the June 2018 report and/or the November 2018 consultation document, which it ought to have consulted and which made explicit the prospect of prohibition of through traffic on the Old Cabra Road. Even if I am wrong in so holding, that prospect was apparent to Lissan – or ought to have been - from Map 28 Emerging Preferred Scheme which the

34 The 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, §2.2.3 is at p129.

35 The two versions of this text differ immaterially.

36 Affidavit of Aidan Gallagher sworn 25 February 2025. Lissan Coal v ABP & NTA [2026] IEHC 255

NTA had sent it in November 2018.

• The planning permission was granted by the Commission in January 2019. Apologising for tautology, I observe that as, with all permissions, it was a permission. It did not oblige or commit Lissan to develop the Filling Station or invest in that project. Many planning permissions are never effected.

• Counsel for Lissan accepted, as he had to, that it had no obligation on foot of the permission to build a Filling Station. To the proposition that Lissan built knowing that the bus gates were at least potentially on the way, his response was that “they were absolutely entitled to”.37 One may say that of many commercial endeavours: it does not immunise the entrepreneur from the known risks of doing so.

• The passage in the submissions of 30 August 2022 in the s.51 Process, and again in the affidavit of Mr Loughran sworn on 16 August 2024, does not disclose whether Lissan had revisited its due diligence on receipt of Map 28 Emerging Preferred Route in November 2018, at any time after its 2017 planning application, or before actual development of the Filling Station which started in January 2020. Given the information available to Lissan as I have described it above, it is difficult to understand why this passage does not disclose the position in that regard. Lissan does not in these proceedings disclose its reasoning at that time as to why it built on from January 2020 despite, if nothing else, the implications of Map 28 Emerging Preferred Route and the explicit intimation, at least as in contemplation by the NTA, that “through traffic” would be “prohibited” “on the section of the Old Cabra Road between the Ratoath Road junction and North Circular Road.”

26. It appears to me that the appropriate inference is that Lissan must be taken to have

• understood prior to committing itself to development of the Filling Station that the Scheme, if effected and depending on the precise form it might ultimately take, posed a significant risk to its viability.

• decided to take that risk. That inference is appropriate whether Lissan in fact adverted to the risk and decided to take it, or failed to advert to the risk by failing to take obvious steps to protect its own interest by updating its due diligence in light of all, or for that matter any, of the June 2018 report, the November 2018 Emerging Preferred Route consultation document and Map 28 Emerging Preferred Route and/or before actual development of the Filling Station.

27. Taking Lissan as a competent investor which decided to take the risk of investing in the Filling Station, it is easy to speculate, but unnecessary to conclude, why it might have done so. Perhaps Lissan optimistically thought the possibility that the Scheme would not proceed, or would be re-routed to preserve its passing trade, worth risking.

28. Notably, Lissan’s submission of 30 August 2022 described the Site as

“a highly lucrative location for the establishment of a petrol/service station due to its position on an arterial route into Dublin City Centre. Such was the level of expectation on the financial

37 Day 3 13:28. Lissan Coal v ABP & NTA [2026] IEHC 255

performance of the petrol/service station, with this expectation realised on the basis of current operating profits, that the design parameters of the development were expanded accordingly with the intent of our client being to provide the state-of-the-art service station which exists on site at present …”

Perhaps Lissan took the view that, by the time the Scheme was actually effected, having overcome all planning and legal hurdles in the meantime, the likely return would already have made its investment worthwhile – no doubt taking into account residual Site value on cesser of business. Perhaps Lissan envisaged that it would be compensated if the Scheme proceeded. Perhaps none of these possibilities describe its rationale. Lissan does not tell us. And actual outturn does not illuminate its risk-based rationale at the relevant time. But what is clear is that the risk posed by the Scheme was progressively apparent from June and November 2018, whether or not Lissan in fact adverted to it. Lissan, as an entrepreneur38 in the business, inter alia, of identifying, assessing, quantifying, and deciding whether to take commercial risk, must be taken to have decided, before committing to developing the Filling Station, to take the risk disclosed to it in November 2018 by Map 28 Emerging Preferred Route. As a matter of fact, Lissan must be taken to have developed the Filling Station in the teeth of the risk of loss of its passing trade.

NTA e-mail of 8 March 2019 and thereafter

29. On 8 March 2019, the NTA by email replied – in part as follows:

'In the interim, it is entirely up to you to proceed with your formally approved plans. Should the BusConnects Programme get formal approval it will be 2021 at the earliest that any acquisition and construction could proceed, and appropriate compensation for any properties subject to the formal compulsory purchase order would be negotiated. The construction strategy and sequence of the 16 core bus corridors are not yet determined; construction of this corridor could start as early as 2021 or as late as 2026. We note and appreciate your suggested modifications to the concept plans. We will be happy to arrange a one-to-one meeting to discuss in more detail.'

30. Lissan criticise this letter “as a direct opportunity for the NTA to identify the possibility of introducing bus gates and the subsequent detrimental impact on the future station. The NTA failed to notify our client at this stage.”39 That is unfair. The NTA had already warned Lissan of the risk that the Filling Station would lose its passing trade and was entitled to assume that Lissan was aware of that risk.

31. The first sentence of the foregoing passage from the NTA letter of 8 March 2019 does not, literally,

makes sense. However, in context, its meaning is quite clear: it can be read as “In the interim, it is entirely up

38 Defined by Oxford as “a person who sets up a business or businesses, taking on financial risks in the hope of profit.”

39 Submission 12 July 2023. Lissan Coal v ABP & NTA [2026] IEHC 255

to you whether to proceed with your formally approved plans.” In other words: proceed at your own risk. I have no doubt that a properly risk-conscious Lissan should have so read it.

32. Despite being offered one, Lissan did not request a meeting. They say40 and I accept that this was because the NTA’s email suggested that the scheme was still in its early stages, that construction would not commence until 2021 at the earliest and that further engagement would occur closer to the implementation of the Scheme. I also accept that Lissan believed that their concerns had been adequately raised in their letter dated 28 February 2019. However, I do not accept the averment that this belief was reasonable: that letter raised only their objection to the prospect of acquisition of land from the Site. It did not raise the prospect of the loss of their passing trade of which prospect, as I have held, they were long-since objectively on notice. As to the concerns actually raised in their letter, Lissan unfairly assert that “NTA failed to proactively follow up”. In fact, the NTA abandoned the land acquisition to which Lissan had objected.

33. Lissan’s affidavit41 is phrased as though it had complained in the letter dated 28 February 2019 of the prospect of the loss of passing trade. It did not. But if it had done, that would simply cast in further doubt its wisdom in starting development almost a year later with the passing trade issue, of which it had (on its hypothesis) complained, unresolved by reason of the NTA’s so-called failure to proactively follow up. And in any event, that observation raises the more pressing question why, as the party at risk of catastrophic loss of

passing trade of which it had supposedly inquired, Lissan itself did not “proactively follow up”? Of course, the

probable truth underlying the entire matter is that Lissan had not, as in my view it objectively should have, adverted at this time to the risk of catastrophic loss of passing trade or, having adverted to it, decided to proceed nonetheless. As I have tried to demonstrate, that such a course may now seem in hindsight to have been unwise does not mean that it must have seemed so to Lissan at the time - even if they saw the risk involved.

34. Between 4 March 2020 and 17 April 2020 the second, and between 4 November 2020 and 16 December 2020 the third, rounds of non-statutory public consultation on the Preferred Route Option for the Scheme took place. From the second round on, the NTA

• no longer proposed to acquire lands from the Site because the updated proposal included a shorter outbound bus lane on Old Cabra Road and it was no longer necessary to widen the road at this location.

• proposed 24-hour bus gates on Old Cabra Road.

40 Affidavit of Daniel Loughran sworn 17 April 2015.

41 Affidavit of Daniel Loughran sworn 17 April 2015 §§ 8 & 9. Lissan Coal v ABP & NTA [2026] IEHC 255

What are Bus Gates?

35. The term “bus gate” is not defined by or pursuant to statute. It does not refer to a physical gate or the like – rather it is created by signage and road markings restricting road use. In my view, nothing turns on whether the gate is physical or is the legal effect of signs and road markings if the net effect is the same in law. Bus gates are described as follows in the EIAR later submitted to the Commission:

“A Bus Gate is a sign-posted short length of stand-alone bus lane. This short length of road is restricted exclusively to buses, taxis, cyclists and emergency vehicles. It facilitates bus priority by removing general through traffic along the overall road where the bus gate is located. General traffic is directed by signage to divert towards other roads before it arrives at the Bus Gate”. 42

The Traffic Signs Manual43 describes bus gates as a “modal filter” and states that they “prohibit general traffic movements travelling in the same direction as buses and other authorised vehicles”. It stipulates road signs for that purpose.

36. As the foregoing states, and as is clear on the facts of this case, a bus gate is a type of bus lane. I am unclear of the precise significance of the phrase “stand-alone”. My impression is that a bus gate differs in practice from an ordinary bus lane in that,

• the former likely occupies the entire vehicular carriageway in at least one direction, so that general traffic in that direction is removed from the road in question.

• the latter may be more likely to be limited in their hours of operation and typically run parallel to lanes open to general traffic - so that general traffic, though removed from the bus lane, is not removed from the road in question.

37. Whatever the technical differences however, it is clear that the proposed bus gates relevant to this case will operate on a 24-hour basis and will, in effect, remove over 90% of through traffic from the stretch of Old Cabra Road which passes the Filling Station, and thereby a similar percentage of its passing trade. It is

also clear that the bus gates’ effect on the Filling Station’s passing trade will be similar to the effect which

the scheme depicted on Map 28 Emerging Preferred Route would have had.

38. As stated, on 4 March 2020, the NTA started the second round of non-statutory public consultation for the Blanchardstown to City Centre Core Bus Corridor – this time on the Preferred Route Option and in light of “Map 28: Preferred Route”.44 Like its predecessor, Map 28: Emerging Preferred Route, Map 28: Preferred Route also indicated that general through traffic along Old Cabra Road would be removed. (This map also deleted the prospect of land acquisition from the Site.)

42 EIAR Vol 2 §4.6.4.3. Emphasis added. See also Glossary in Blanchardstown to City Centre Core Bus Corridor Scheme Public Consultation Report 2018-

2022. See also Inspector’s S.51 Report §7.65.

43 Chapter 5, Regulatory Signs, p.50.

44 From “Blanchardstown to City Centre” Core Bus Corridor Preferred Route Public Consultation March 2020. It is found as an Appendix to the Core

Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p276. Map 28 is on page 329. Lissan Coal v ABP & NTA [2026] IEHC 255

39. Also, “Map 36: Preferred Route”45 clearly and explicitly showed the “Northbound Bus Gate” and the “Southbound Bus Gate” bracketing, as it were, the Site. Further, the March 2020 report states:

“Proposals to limit use of Old Cabra Road to local access traffic, buses, taxis and cyclists are retained as in the EPR,46 as follows:

No through traffic in the southbound direction at the northern end of Old Cabra Road (at its junction with Navan Road), except for buses, taxis and cyclists - which thus precludes general traffic from Navan Road travelling to Stoneybatter along Old Cabra Road;

No through traffic in the northbound direction except for buses, taxis and cyclists on Old Cabra Road between Cabra Drive and Glenbeigh Road – which thus precludes general traffic from Stoneybatter and the North Circular Road from travelling along Old Cabra Road through to Navan Road.”

40. Despite what can only have properly been seen as flashing red lights as to the prospect of the ending of through private traffic on the Old Cabra Road, Lissan’s apparent lassitude persisted – consistent, it seems to me, with either wilful blindness to, or acceptance of, the risk posed to the Filling Station on which they had lately started construction. They made no submission in the second round of non-statutory public consultation in March/April 2020. Even on their own view of what they ought to have known from November 2018, their explanation that they were not aware of any material changes to the Emerging Preferred Route that would have warranted further submissions47 cannot be given any weight given the content of the March 2020 maps and documents described above. If they were not aware of the bus gate proposals (taking them, as Lissan assert, to have been material changes – though in my view they were not), they should have been so aware and would readily have been so aware had they considered the available documents correctly.

41. By letter dated 15 December 2020, Lissan bestirred themselves and made a submission in the third round of pre-application public consultation. By that time they had, since January 2020, done substantial works in building the Filling Station on foot of their planning permission and, one may infer, were committed to the project. The submission expressed significant concern at what it described as Lissan’s “newly obtained understanding”48 that traffic flow would largely be curtailed to near zero by bus gates on Old Cabra Road. The letter requested that the NTA clarify precisely what its plans were in the vicinity of the Site. No such clarification was made. However, it is clear that, to any extent Lissan’s understanding was “newly obtained”, Lissan cannot criticise the NTA in that regard given the content of Map 28 Emerging Preferred Route, which

45 From “Blanchardstown to City Centre” Core Bus Corridor Preferred Route Public Consultation March 2020. It is found as an Appendix to the Core

Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p276. Map 36 is on page 339.

46 Emphasis added.

47 Affidavit of Daniel Loughran sworn 17 April 2015 §12.

48 Affidavit of Michael Loughran sworn 15 August 2024 §17. Lissan Coal v ABP & NTA [2026] IEHC 255

they had had since November 2018 and also the content of the June 2018 Report and the November 2018 consultation document. In short, if their understanding was in fact “newly obtained”, that was their own fault, not the NTA’s.

Development Potential if not a Filling Station

42. Rory McDonnell, planner for the NTA, deposes49 and I accept that if the Scheme proceeds and renders the Filling Station unviable, the Site will not be sterilised for development or rendered valueless. It is zoned “Land-Use Zoning Objective Z1: To protect, provide and improve residential amenities’” and various potential development types are permissible in principle or open for consideration.50 Mr Hughes, planner for Lissan, opines that in reality and for various reasons, the real prospect is of permission for a small housing development of four to six houses or, less commercially attractively, a small block of apartments. However, it is not appropriate that I enter into the detail of the development potential of the Site or its resultant value. While Mr Hughes may be properly pessimistic, and Lissan may have a point as to Site decommissioning costs51 and Mr McDonnell’s view is very generally expressed, all that can be said is that, if not as a filling station, the Site has some other development potential and commercial value.

S.51 APPROVAL APPLICATION JUNE 2022, SCHEME DESCRIPTION & EIAR

43. On 24 June 2022, the NTA lodged the Scheme and an EIAR with the Commission for s.51 approval. Generally, the relevant parts of the Scheme are shown below.

49 Affidavit of Rory McDonnell, Planner, sworn 25 February 2025.

50 Dublin City Development Plan 2022 – 2028. “Z1 – Permissible Uses Assisted living/retirement home, buildings for the health, safety and

welfare of the public, childcare facility, community facility, cultural/recreational building and uses, delicatessen, education, embassy residential,

enterprise centre, halting site, home-based economic activity, medical and related consultants, open space, place of public worship, public service

installation, residential, shop (local), sports facility and recreational uses, training centre.

Z1 – Open for Consideration Uses Allotments, beauty/ grooming services, bed and breakfast, betting office, Build to Rent residential,

café/tearoom, car park, civic and amenity/recycling centre, garden centre/plant nursery, guesthouse, hostel (tourist), hotel, industry (light),

laundromat, live/work units, media-associated uses, mobility hub, off-licence, off-licence (part), office, park and ride facility, petrol station, pigeon

loft, postal hotel/motel, primary health care centre, public house, residential institution, restaurant, student accommodation, veterinary surgery.”

51 Affidavit of Daniel Loughran 17 April 2025 §23. Lissan Coal v ABP & NTA [2026] IEHC 255

Figure 2 – Scheme Map 29 - Extract

Lissan Coal v ABP & NTA [2026] IEHC 255

Figure 2 – legend

• Again, the bus lanes/gates are depicted in blue.

• As stated, there will be a bus gate governing inbound traffic on Old Cabra Road.52 There will be a bus gate governing outbound traffic on Old Cabra Road at a point south east of Glenbeigh Road – I have circled the relevant text in red.53

• I have circled the Filling Station in red just south east of Earls Court. Glenbeigh Road is labelled south east of the Filling Station.

• Between the bus gates there is no apparent restriction on traffic on Old Cabra Road – for example any traffic may access that stretch of road from Glenbeigh Road or from properties adjacent Old Cabra Road and, having done so may travel unimpeded in-bound and out-bound. However, the effect of the bus gates is to exclude general through traffic along Old Cabra Road – removing over 90% of the existing traffic from this stretch of Old Cabra Road.

• The net effect on through traffic and on its access to the Filling Station is essentially the same as was depicted in Map 28 Emerging Preferred Route and is as presaged in the June 2018 Report and the November 2018 Consultation Document.

EIAR on Impact on Filling Station

44. Lissan abandoned any criticism of the EIAR as to its assessment of effect on the Filling Station.54 Chapter 10 of the EIAR, entitled “Population”, “considered the potential community and economic impacts on the human population ……… both social impacts on communities (community assessment) as well as economic impacts on commercial businesses (economic assessment).”55 It says that “The economic assessment considers impacts on individual commercial businesses” by reference to commercial amenity and to commercial land use and accessibility.56

45. Chapter 10 of the EIAR addressed the impact of the bus gates on the Filling Station:

“There is one business located along the bus gate, Go Station (filling station). Go Station is expected to be affected as a result of the proposed bus gate. Although this business can still be accessed by private vehicles, these will primarily be local residents in the surrounding community area and customers with existing knowledge of the location of the business. The primary source of income for the business is expected to be from passing trade,57 which is expected to be significantly reduced along Old Cabra Road due to the bus gates. During construction and operation of the Proposed Scheme it is expected that this business would no longer be able to operate successfully. The impact

52 See Lissan Submission dated 30 August 2022 in the S.51 Process: Figure 5.0 Extract from Sheet 28 of the General Arrangement drawing illustrating

the proposed bus gate (red dashed line) at the junction of Navan Road, Cabra Road and Old Cabra Road.

53 It reads “Proposed bus gate here. No through traffic except buses, taxis and bicycles.”

54 Day 2 16:29

55 EIAR §10.1.

56 EIAR §10.2.1.2.

57 Though slightly clumsily worded, this clearly describes the position prior to the implementation of the bus gate. See Day 1 12:13.

Lissan Coal v ABP & NTA [2026] IEHC 255

on this business is assessed as Negative, Very Significant and Long-Term during construction and operation of the Proposed Scheme.” 58

46. The impacts on the Filling Station in the construction and operational phases are summarised in the EIAR,59 as follows:

Residual Impact Impact Significance Residual Impact Significance Description (Pre-Mitigation) (Post-Mitigation)

Commercial Negative, Very Significant and Long-Term - Negative, Very Significant and Long-Term Accessibility Go Station (Aughrim Street)60 – Go Station (Aughrim Street)

CPO & LISTS OF PUBLIC RIGHTS OF WAY TO BE EXTINGUISHED, RESTRICTED OR INTERFERED WITH

47. On 28 June 2022, the NTA made the CPO. Subject to the Commission’s confirmation, it authorised61 the NTA to

• a. “acquire compulsorily” for the construction of the Scheme the lands described in Part I (lands being permanently acquired) and Part II (lands being temporarily acquired) of the Schedule and depicted in the deposited maps.

• b. “extinguish”, by order made after the acquisition of the land, the public rights of way described in Part III (Section A) of the Schedule.

• c. “restrict or otherwise interfere with” the public rights of way described in Part III (Section B) of the Schedule.

• d. acquire the private rights described in Part IV (Section A) of the Schedule

• e. restrict or otherwise interfere with the private rights described in Part IV (Section B) of the Schedule.

• f. temporarily restrict or otherwise interfere with the private rights described in Part IV (Section C) of the Schedule.

48. The public notice of the CPO recorded that owners, lessees and occupiers of the land and/or rights described in Parts I, II and IV of the Schedule would receive individual written notice of the CPO. As seen above, those Parts listed lands being permanently or temporarily acquired and private rights to be acquired,

58 Volume 2, §10.4.4.2.2.2, Economic Assessment, Commercial Accessibility - Emphasis added.

59 Volume 2, Ch 23. Summary of Significant Residual Impacts, Table 23.1.

60 Refers to the Applicants’ Go Station on Old Cabra Road. The Scheme passes through various “Community Areas” so designated for the purpose

of the Scheme. The Site is in the “Aughrim Street” area. See NTA response to submissions, January 2023, §4.57.2 (p.441) and Figure 4.57.1:

Community Study Area (extract from Figure 10.1 of Volume 3 of EIAR).

61 §1. Lissan Coal v ABP & NTA [2026] IEHC 255

restricted or otherwise interfered with. The CPO did not authorise acquisition of any land from the Site or acquisition of, restriction of or interference with any private rights of Lissan. On that basis, Lissan were not listed in the Schedule to the CPO and were not served with notice of the CPO.

49. Notably, Part III of the CPO Schedule contains two sections corresponding to points b. and c. above and clearly intended to record different phenomena:

• Section A is entitled: “Description of public rights of way to be extinguished”. It states that no public rights of way are to be extinguished.

• Section B is entitled: “Description of public rights of way to be restricted or otherwise interfered with”.

It lists 12 public roads in respect of which all rights of vehicular traffic, including bicycles in three cases, are to be restricted along sections identified on specified deposit maps.

50. By way of observations on Part III of the CPO Schedule,

• As to Section B, I do not have the cited deposit maps and am not told the underlying purpose of the restrictions. It seems reasonable to infer that those instances in which the rights of cyclists were preserved related to some form of cycle track.

• Part III did not list persons affected by the scheduled extinguishments, restrictions, and interferences.

That is, no doubt, because the rights in question are public, not private. And it is accordingly impractical, if not impossible, to individually identify and list all those who will be appreciably affected.62 Notice of those extinguishments, restrictions and interferences is effected by the public notices of the CPO.

• Notably, Part III did not list as extinguished, restricted or otherwise interfered with, the public rights of way over stretches of road to which bus gates would apply. In particular, it did not list the bus gates or the stretch of the Old Cabra Road between them, passing the Site and relevant to these proceedings, as being subject to restriction or interference.

51. On 1 July 2022, the NTA lodged the CPO with the Commission for its confirmation.

62 For example, in the present case, one can envisage effect on commuters to Dublin from a large area. Lissan Coal v ABP & NTA [2026] IEHC 255

S.51 PROCESS - LISSAN SUBMISSION AUGUST 2022, NTA REPLY JANUARY 2023 & LISSAN REPLY JULY 2023

52. Lissan’s submission of 30 August 2022 to the Commission in the s.51 Process asserted, inter alia, that if the Scheme were implemented

• they would be uniquely impacted by it.63

• the resultant 92% drop in passing traffic along Old Cabra Road would catastrophically render the Filling Station “commercially unviable and near obsolete”.

• its remaining trade would only be able to access the Filling Station via Glenbeigh Road - a residential street which will have a signalised junction with Old Cabra Road and from which entry onto Old Cabra Road will continue for the purpose of access.

• as a result, Lissan would have to “identify an alternative commercial use and/or residential use” and incur costs in changing to such use. (This is a notable submission.)

• without compensation, the impact on their business would be an unjust and disproportionate attack on their constitutional rights. That part of the submission64 was contributed by Lissan’s solicitors and set out its position at some length and citing caselaw.

53. Lissan’s’ submission of 30 August 2022 also asserted that

• the consideration of alternatives to the Scheme in the Draft Preferred Route Option Statement and in the EIAR was “completely inadequate”.

• the bus gates should be omitted. I observe that that the submission did not elaborate as to available alternatives or as to the effect on the Scheme of omitting the bus gates.

54. Diarmuid Healy, traffic engineer, deposes65 for Lissan that his firm66 modelled current traffic volumes on the Old Cabra Road, and those expected if the Scheme were to proceed and access to the Filling Station was limited to access via Glenbeigh Road. It predicted that only a small amount of private vehicular traffic would access the Filling Station via Glenbeigh Road and predicted a c. 92% reduction in Filling Station trade, such that it would be unable to trade. He deposed that these findings had been put to the Commission. He explains the detail of these findings in his affidavit, including to the effect that access via Glenbeigh Road is unsuitable for various reasons. However, as the EIAR accepts that the Filling Station will fail, it seems unnecessary to recite here that content of the affidavit.

55. Lissan’s submission of 30 August 2022 called for an oral hearing “in light of the significant and adverse impacts of the proposal on our client's business” and “to discuss the significant, adverse and irreversible impact the subject scheme has on our client's commercial interest.”

63 Appending the report of Tent Engineering dated 30/08/22 to that effect.

64 4.5 Interference with Property Rights.

65 Affidavit sworn 17 April 2025.

66 Tent Engineering Ltd. Lissan Coal v ABP & NTA [2026] IEHC 255

56. By reply dated 31 January 2023 to that submission, the NTA responded at some length.67 It

• Recited in some detail Lissan’s objection of 30 August 2022 to “the catastrophic impact”, by way of a 92% drop in custom, of the proposed bus gates on the “long-term viability” of the Filling Station, their objection that alternatives had been inadequately considered, their citation of the relevant text of the EIAR – including that the expectation the Filling Station would “no longer be able to operate successfully” – and Lissan’s call to omit the bus gates.

• Responded in terms o asserting in some detail that alternatives, including alternative route options and traffic management options, had been explored in detail and found inadequate to the public interest pursued by the Scheme – as they could not meet the Scheme’s public transport objectives.

o describing the alternatives assessment as demonstrating the “criticality” of the bus gates as “fundamental” to achieving the entire Scheme’s objectives.

o asserting that, as none of Lissan’s land is to be acquired and no compensable rights of Lissan are being acquired or interfered with, listing Lissan in the CPO was unnecessary, the Scheme did not unjustly attack their property rights and no compensation was payable. Lissan’s complaint of interference in property rights by reason of reduced vehicular traffic on the Old Cabra Road is of indirect and non-compensatable interference.

o recording that the EIAR had assessed the impact on the Filling Station business as Negative, Very Significant and Long-Term. Though it did not in its response repeat the EIAR observation that the Filling Station would “no longer be able to operate successfully”, that observation was, as I have said included in the NTA’s recounting of Lissan’s objection as having been made in the EIAR.

57. By reply of 8 June 2023, the Commission refused an oral hearing – invoking its absolute discretion in that regard. But it invited Lissan to respond to the NTA submission dated 31 January 2023.

58. Lissan’s submissions of 12 July 2023 to the Commission ensued. They

• essentially repeated their earlier arguments by appending documents already sent to the Commission.

• asserted that they wanted no interference with their operations and believed it clear that alternatives to the bus gates were adequate.

• called, “Considering this seismic impact to existing commercial operations” and the prospect of the closure of the business by removal of its customer base, for the omission of the bus gates from the Scheme and for continued unrestricted vehicular access to the Filling Station.

• again sought “an oral hearing to discuss the significant, adverse and irreversible impact the subject scheme has on our client's commercial interest.”

67 NTA Observations on the Proposed Scheme Submissions and CPO Objections (January 2023) §4.57. Lissan Coal v ABP & NTA [2026] IEHC 255

INSPECTOR’S REPORTS & IMPUGNED DECISIONS

59. The Commission’s Inspector prepared reports dated 21 February 2024 on the CPO confirmation application and dated 27 March 2024 on the s.51 Application. They overlap considerably.

60. It is unnecessary here to recount at length the Inspector’s detailed views as to the public interest in and general justification for the Scheme or her account of the policy context68 – to which I have had regard. However, it appears to me that

• Lissan’s case is at least partly based on an allegation of unjust attack on its constitutionally-protected private property rights,

• Bunreacht Article 43.2.1 recognises that the exercise of property rights ought to be regulated by the principles of social justice,

• These concepts require, in decisions as to both s.51 approvals and CPO confirmations, a balancing of private property rights and public interests, and

• The concept of unjust attack falls to be considered in light of such a balancing exercise and as a relative matter – of proportionality of the restriction of property rights to the public end pursued.

61. The Inspector also recognised69 that for the Commission to confirm the CPO, it must be satisfied that the NTA has demonstrated that the CPO “is clearly justified by the common good"70 in the sense that

• A community need is to be met by the acquisition.

• The lands to be acquired are suitable to meet that community need.

• Alternative methods of meeting the community need have been considered and are not demonstrably preferable.

• The works to be done should accord with or at least not materially contravene the development plan.

68 S.51 Report - she considers, inter alia,

• The EU Green Deal 2019 and the EU Sustainable and Smart Mobility Strategy 2020 and Towards a fair and sustainable Europe 2050: Social and

Economic choices in sustainability transitions, 2023 as to climate policy, transport sustainability (environmental, social and economic) of and

transport emissions reduction.

• The Climate Action Plan 2023 – including for modal shift to public transport via, inter alia, road space reallocation. BusConnects is a key action

under the major public transport infrastructure programme to deliver abatement in transport emissions.

• The Regional Spatial Economic Strategy for the Eastern and Midlands Region and the Dublin Metropolitan Area Strategic Plan – including as to

integrated transport and land use policy which seeks to focus sustainable growth and increased public transport use along existing and proposed

high quality public transport corridors – including, specifically, BusConnects.

• Smarter Travel – A Sustainable Transport Future: A New Transport Policy for Ireland 2009 – 2020, The National Sustainable Mobility Policy, 2022

and the Department of Transport National Sustainable Mobility Policy 2022 for sustainable efficient public transport to support Ireland’s carbon

emissions reduction requirement.

• The National Development Plan 2021-2030 and the National Investment Framework for Transport in Ireland, 2021 which recognise BusConnects

as a major regional investment and a strategic investment priority to alleviate congestion and inefficiencies in the bus service.

• The National Planning Framework Project Ireland 2040, the fundamental objective of which is transition to a competitive, low carbon, climate

resilient and environmentally sustainable economy including housing development based on, inter alia, accessibility by sustainable transport

modes and quality of life, rather than unsustainable commuting patterns and National Strategic Outcome 4 of investment in sustainable public

transport and mobility solutions including BusConnects to keep urban areas competitive.

• Dublin City Development Plan 2022-2028, Chapter 8 Sustainable Movement and Transport and the Greater Dublin Area Transport Strategy –

2022-2042.

69 Inspector’s CPO report §6.

70 Inspector’s CPO report §6.2, citing Clinton v An Bord Pleanála (No. 2) [2007] 4 IR 701. Lissan Coal v ABP & NTA [2026] IEHC 255

62. Accordingly, I should at least record the Inspector’s general conclusion, as a matter of evaluative expert judgement, on the public interest in the Scheme, which was as follows:

“In overall conclusion it is clear that there is an obvious need and justification for the proposed scheme which has been clearly demonstrated from a population growth and congestion perspective and in the interests of land use and transport planning integration. It is also clear from the abundance of policy documents and plans at both an EU, national and local level that the proposed scheme is supported throughout all levels of government policy and is therefore justified and acceptable in principle.”71

63. I observe that in a modern metropolis effective public transport is, for its own sake and for practical reasons, a central element of the common good: it has been considered so since at least Victorian times and the Railway Acts. More broadly, public transport is for the common good in a climate crisis to which the greenhouse gas emissions of private transport make a very significant contribution and from which form of transport modal shift is a national aim. Also public transport may contribute to social justice in favour of the economically less advantaged. In my view, it can only be said that the common good weighs heavily in this case.

64. The inspector analysed these criteria in turn and found them satisfied. I will not record her analysis in detail but note her views, as a matter of evaluative expert judgement, that

• “… the Blanchardstown to City Centre Corridor serves some of the busiest bus routes in Dublin. Demand for travel by bus is anticipated to continue to grow in this corridor …”

• the Scheme was “in response to the need for a sustainable, reliable form of public transport along the main radial routes from the City Centre. Sustainable transport infrastructure is known to assist in creating more sustainable communities and healthier places to live and work while also stimulating our economic development and also contributes to enhanced health and well-being when delivered effectively.”

• “At present, the reliability and effectiveness of existing bus and cycle infrastructure on key radial traffic routes into and out of Dublin city centre is compromised by a lack of bus lanes and segregated cycle tracks. Furthermore, existing bus lanes are often shared with parking and cyclists and are not always operational on a 24-hour basis.”

• “The prioritisation of buses over cars and the creation of more space for pedestrians and cyclists will therefore allow for increased people movement capacity along the core bus corridor. This is vital given the existing congestion and the forecasted growth in population, jobs and goods vehicle numbers by

71 Inspector’s S.51 Report §7.23. Lissan Coal v ABP & NTA [2026] IEHC 255

2040.”

• “… the proposed scheme is of critical importance to the transport network in Dublin …” It will “make a

significant contribution to carbon reduction, the easing of congestion and the creation of more sustainable travel patterns for the growing population, therefore demonstrating a clear community need for the proposed scheme.” It will “deliver the physical infrastructure necessary to sustain the projected population growth along and within the area of the route.”

• “ …the overriding motivation for BusConnects is to reduce CO2 emissions and this is critical from a global climatic perspective.”

• “In overall conclusion it is clear that there is an obvious community need and justification for the proposed scheme which has been clearly demonstrated from a population growth and congestion perspective and in the interests of land use and transport planning integration.”

65. In that context, it is relevant also to note the Inspector’s satisfaction, again as a matter of evaluative expert judgement, that the NTA had robustly and rigorously, having regard to environmental considerations and the project objectives, assessed a significant number of alternative options to the Scheme - including options within the selected route corridor and options as to the strategy for key infrastructure provisions. She agreed that the routes chosen best meet those objectives and so generally concurred with the reasons for choosing the preferred alternatives presented in the EIAR.72

66. In King,73 Simons J observed that, unusually, statute does not expressly prescribe the criteria by which the Commission is to decide whether to confirm a CPO. He said that its approach in practice applies a form of proportionality exercise – often applying the four-stage test identified in Galligan & McGrath.74 The four tests are essentially those I have just recorded the Inspector as applying – including whether alternatives are “demonstrably preferable”. I add that it is often said that a CPO must be based on the

“necessity” of the acquisition of all lands to be acquired. However, as was said in Clifford,75 such necessity is

not absolute and does not represent an “artificially high threshold”. Rather, it requires a judgement that the acquisition is desirable or expedient having regard to public benefits such as the creation of public infrastructure or meeting community need. Necessity cannot be disproved by the landowner demonstrating merely that alternatives exist which would allow that need to be met without requiring acquisition of the land in question.

67. The Inspector rejected concerns that the bus gates were unnecessary or disproportionate and concerns as to their knock-on effect of traffic redistribution within the wider area – that motorists will take

72 Inspector’s S.51 Report §9.18.

73 King v An Bord Pleanála [2024] IEHC 6, [2024] 1 JIC 2201.

74 Galligan & McGrath, Compulsory Purchase and Compensation in Ireland: Law and Practice (Bloomsbury Professional, 2013, §3.26 (footnotes

omitted).

75 Clifford v. An Bord Pleanála, O'Connor v. An Bord Pleanála [2021] IEHC 459. Lissan Coal v ABP & NTA [2026] IEHC 255

short cuts on unsuitable surrounding roads.76 She accepted the rationale for 24-hour bus gates on Old Cabra

Road77 - that they are “necessary to provide reliable bus journey times for all services” - and concluded, as to

the bus gates generally,

“Given the level of traffic currently utilising this route it is reasonable to propose such measures to ensure that the proposed route operates efficiently and does not create traffic issues which could have effects further down or up the line or gives rise to confusion in road users.”78

Overall, though she does not use the word “critical” or “vital”, the inspector is to be understood as accepting

the necessity of the bus gates to the efficiency of the Scheme – to public transport availing of the Scheme. Nor has that conclusion been impugned in these proceedings

68. The Inspector recommended that the Scheme be approved and that the CPO be confirmed, without modifications.

INSPECTOR ON LISSAN OBJECTION & OBSERVATION THEREON

69. In Appendix 1 of her s.51 report, the Inspector summarised Lissan’s submission as follows:

“55. LC Properties & investment In relation to Lissan Coal Company – Filling station o Trade will be reduced as a result of works, significant recent investment will be impacted significantly.

o TENT Engineering prepared a traffic impact report for station owners, which shows reduction in trade from 1727 passing cars to 138.

o Attack on private property rights as compensation is not offered and party is not a notice party to CPO.”79

70. The Inspector, in her general planning assessment, advised the Commission as follows:

“The Board should also note that concerns have been raised by the existing petrol station on the Old Cabra Road relating to the impact of the proposed changes on the business viability.”80

“In response to the concerns raised by the petrol station on the Old Cabra Road I note access will be available via Glenbeigh Road. …. However, I acknowledge in relation to the petrol station that a

76 Inspector’s S.51 Report §7.78. & 7.94.

77 Inspector’s S.51 Report §7.85.

78 Inspector’s S.51 Report §7.86.

79 Emphasis added.

80 Inspector’s S.51 Report §7.79. Lissan Coal v ABP & NTA [2026] IEHC 255

significant reduction in through traffic would undoubtedly have an impact on the number of customers to the services. The Board should note that this has also been recognised by the NTA.

However, given the gains in terms of benefits to the wider community and the overall accessibility into and out of the city as a result of the proposed scheme, on balance I consider the delivery of this active sustainable travel infrastructure to be acceptable in this regard. The station can still be accessed and maintain operations albeit not as conveniently as at present.”81

71. The underlined text is that to which I referred earlier as “regrettably euphemistic”. To be clear, it is to be deprecated on that account. Like affidavits, EIARs, Inspector’s Reports and EIAs are no place for euphemism or spin. I am happy to record that I accepted at the hearing, and still do, that there was no evidence of subjective or deliberate mal-intent by the Inspector and there is no imputation on her integrity. In that specific sense I accept the Commission’s description of the Inspector’s euphemism as a “benign euphemism.82 However, counsel’s description of the euphemism as a “poor use of language”83 and not being “ideal language”84 was itself euphemistic.

72. Whether the euphemism’s effect on the Commission’s decision was benign is a different question. That question is one of the objective characterisation of the relevant content of the inspector’s report. In my view, the report falls well short of fairly conveying and reflecting the weight and tenor of the actual and undisputed EIAR content to the effect that the Filling Station will “no longer be able to operate successfully” and that the Scheme’s impact on the Filling Station will be “Negative, Very Significant and Long-Term”. Neither of those phrases, or anything suggesting them, appear in the report. Inspectors, in their reports, must face up squarely to undisputed realities. It is unfair not to. If predicted and undisputed effects are

dramatic, or are in EIA terms “very significant” or “profound” - as is the failure of a business - they may not

be diminished by camouflage in verbal drab. As later adopted by the Commission as representing its understanding of the effect on the Filling Station, the euphemism was objectively not benign in its effect on Lissan’s entitlement to have its legitimate interests properly understood and assessed.

73. For the avoidance of doubt, I do not consider that my view of the meaning of the Inspector’s report is legalistic or imposes anything more stringent than an XJS85 interpretation. Nor is a last refuge of reading it to validate rather than invalidate available to the Commission here – such a course would be unfair.

81 S.51 Report §7.84 – emphasis added.

82 Day 2 11:42.

83 Day 2 16:41.

84 Day 2 16:30.

85 Re XJS Investments Limited [1986] IR 750. Lissan Coal v ABP & NTA [2026] IEHC 255

IMPUGNED DECISIONS

74. On 21 June 2024, the Commission made the following decisions:

• the s.51 Approval of the Scheme.

• the "CPO Confirmation" confirming the CPO without modification.

75. Importantly, the Commission adopted the Inspector’s analyses. It accepted at trial, I think inevitably, that it had adopted her euphemistic description of the effect of the Scheme on the Filling Station.

76. In addition and inter alia the Commission cited:

• the strategic nature of the Scheme in the context of the need to deliver an efficient, low-carbon and climate-resilient public transport service, in support of the achievement of Ireland's emission reduction targets.

• strong policy support for delivery of infrastructure for public and active travel modes of transport.

• the proportionate design response to the identified need.

• the constitutional and ECHR86 protection of property rights.

• completion of an EIA,87 including o taking account of the EIAR, submissions and Inspector’s report. o its view that alternatives had been adequately considered. o its agreement with the examination, set out in the Inspector's report, of the information contained in the EIAR and associated documentation submitted by the applicant and submissions made.88

77. The Commission concluded that that “Following mitigation, no residual significant long-term negative impacts on the environment or sensitive receptors will occur” such that “the proposed development will not have any unacceptable direct or indirect effects on the environment.” So, importantly, the Commission’s reasoning was not that effects would be acceptable despite being significant. It was that they would be acceptable because they were not significant.

OVERVIEW OF LISSAN’S COMPLAINT

78. As described above, Lissan’s complaint was easy to understand in general terms - their business will be destroyed by the bus gates, the Commission euphemised that reality and, they say, as matters stand, they will not be compensated for their resultant loss. But it was more difficult to grasp the complaint in precise

86 European Convention on Human Rights.

87 Environmental Impact Assessment within the meaning of the EIA Directive - Directive 2011/92/EU on the assessment of the effects of certain public

and private projects on the as amended by Directive 2014/52/EU.

88 Board Direction. Lissan Coal v ABP & NTA [2026] IEHC 255

legal terms. I hasten to sympathise with them as the law of each of constitutional property rights, compulsory purchase and public nuisance is a thorny thicket. Lissan were ably represented by counsel of the highest standing – not least in the law of compulsory purchase. Lissan did not put their argument in precisely the following terms – but, as I understand it, at its height it is in substance as follows.

a) Ceteris paribus, the bus gates would, if installed without statutory authority, be a public nuisance by obstructing the public right of way along Old Cabra Road.

b) That obstruction will cause them particular damage by way of loss of passing trade to the Filling Station such that, ceteris paribus, they would have a right of action in tort for public nuisance. But that right of action is illusory given the NTA’s statutory authority in the form of the s.51 Approval.

c) However, that right of action at least establishes or illustrates that they have, within the meaning of s.213(2)(a) PDA 2000,89 an “other right over or in respect of any land” in the form of their private right, by reason of the prospect of particular damage and for the benefit of the Site, to the benefit of the public right of way along the Old Cabra Road. In essence they assert that the prospect of particular damage transmutes the public right of way into a private right for the benefit of the Site.

d) S.213(2)(a) PDA 2000 includes in the concept of “acquisition of land” (as to which it empowers the NTA) the acquisition or restriction of or interference with “... any easement, way-leave, water-right or other right over or in respect of any land ...”. This concept includes a public right of way or at least Lissan’s private right in respect of that public right of way.

e) Lissan’s private right in respect of that public right of way is a constitutionally protected property right or a right protected by their constitutional right to earn a livelihood.

f) Accordingly, the CPO, to be effective to “acquire” or “restrict or interfere with” their private right, should have listed but did not list,

• Lissan as owners of their private right, as described above, to the benefit of the public right of way – as persons who will suffer particular damage by the obstruction of, restriction of and/or interference with the public right of way.

• for acquisition, the intended obstruction of, restriction of and/or interference with the public right of way along the Old Cabra Road

g) By that failure to list, the CPO wrongly shuts Lissan out of compensation for their loss.

89 S.213 reads, in part, as follows:

(1) The power conferred on a local authority under any enactment to acquire land shall be construed in accordance with this section.

(2) (a) A local authority may, for the purposes of performing any of its functions … do all or any of the following:

(i) acquire land, permanently or temporarily, by agreement or compulsorily,

(ii) acquire, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right over or in respect

of any land or water or any substratum of land,

(iii) restrict or otherwise interfere with, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or

other right over or in respect of any land or water or any substratum of land,

and the performance of all or any of the functions referred to in subparagraphs (i), (ii) and (iii) are referred to in this Act as an “acquisition of land”.

Lissan Coal v ABP & NTA [2026] IEHC 255

h) Also, Lissan were wrongfully and without stated reason, refused an oral hearing of their objection to the Impugned Decisions.

i) I accept the NTA’s characterisation of Lissan’s position as being that ▪ one can’t restrict or interfere with a public right of way save by CPO – at least where the result would be special damage to a person. (The NTA’s gloss on that position is that in principle and logically, it would apply to such common or garden interferences as signs forbidding left or right turns or changing a two-way street to a one-way street.)

▪ it also asserts that such restrictions provoke in Lissan a constitutional right to compensation.90

79. Ultimately, and Ground 6, the assertion of unfair procedures in the CPO process and the complaint as refusal of an oral hearing aside, it is apparent – Lissan agree91 – that if they have a statutory right to compensation they have no complaint and that if they have no statutory right to compensation their complaint is necessarily based on the assertion of constitutional rights.

LIVE CORE GROUNDS

80. Lissan’s Second Amended Statement of Grounds, of 14 April 2025, deleted Grounds 1 and 292 and related particulars and otherwise amended their Grounds. Grounds 3 to 8 inclusive remain live. Core Grounds 3 to 8 are as follows:93

CG3 – CPO DOES NOT AUTHORIZE INTERFERENCE WITH PUBLIC RIGHT OF WAY ON OLD CABRA ROAD

• The CPO Confirmation and the S.51 Approval are invalid as the Scheme provides for Bus Gates to restrict vehicular traffic from accessing Old Cabra Road but not for any interference with or restriction of the public right of way at that location. The CPO does not refer to that public right of way - in particular, the CPO Schedule, Part III Sections A and B do not refer to it.

• Also, the Commission erred in fact or law in making its S.51 Approval of the Scheme, including for the Bus Gates, even though the NTA had no authority in the CPO to interfere with or restrict the public right of way.

90 Day 2 14:46 et seq.

91 Day 3 14:44.

92 This deletion was in light of the Board’s Statement of Opposition, which states that the Scheme is not a scheme for the purposes of or within the

ambit of s.47 of the Roads Act 1993 and so was not submitted for approval under s.49 of the Roads Act 1993. The NTA asserts that the legislative basis

for the CPO is and has been clear since the making of the CPO itself on 28 June 2022, which was submitted to the Board on 1 July 2022. Nowhere is

section 47 or 49 of the Roads Act 1993 (as amended) (the “1993 Act”) referenced in that CPO. Further, the face of the Board Order (ABP-313961-22)

confirming the CPO dated 21 June 2024 clearly sets out the legislative basis for the CPO and its confirmation and nowhere in the Board’s Order is

Section 47 or 49 of the 1993 Act referenced as being the legislative basis for the CPO.

93 I have edited the Core Grounds somewhat for brevity and clarity without altering their acceptably clear meanings. I have added brief titles as

indicating the essence of the Core Grounds. Lissan Coal v ABP & NTA [2026] IEHC 255

CG4 - CPO CONFIRMATION IN BREACH OF FAIR PROCEDURES

• If and in so far as o the CPO authorises interference with or restriction of the public right of way at Old Cabra Road, and o the Applicants' private right of access to the Site is affected by the CPO, and having regard, inter alia, to the very significant adverse effect of the Scheme on the Site and the Filling Station business thereon as acknowledged by the NTA in its s.51 application EIAR, the CPO Confirmation was made in breach of fair procedures/constitutional justice in that the Applicants were given no opportunity to make submissions in the CPO confirmation process.

(Given the strict pleading rules in judicial review, I will ignore the phrase “inter alia”.)

CG5 – CPO AN UNCONSTITUTIONAL UNJUST ATTACK ON PROPERTY RIGHTS

• If and in so far as the Impugned Decisions provide for interference with Lissan’s o right to enjoy the public right of way as a means of access to the Filling Station for themselves or their invitees and/or customers, and o private right of access to and from the Filling Station to and from the public road, and if and in so far as Filling Station may not be entitled to any or adequate compensation due to the failure to list them in the schedule to the CPO as affected by the Scheme, then, the CPO Confirmation is invalid as a disproportionate interference with and unjust attack on Lissan’s property rights under Article 40.3.1 and/or Article 43 of the Constitution.

CG6 - S.51 APPROVAL – MATERIAL ERROR: FILLING STATION COULD CONTINUE IN BUSINESS

• The s.51 Approval is invalidated by material error of fact and/or law as the Commission adopted the Inspector's report which concluded that the Filling Station “can still be accessed and maintain operations albeit not as conveniently as at present". This flew in the face of Lissan’s submissions and the information in and acknowledgement of the EIAR to the contrary.

• “Moreover” that material error of fact informed the EIA as it concluded that "Following mitigation, no residual significant long-term negative impacts on the environment or sensitive receptors will occur."

• Further, the conclusion that the Filling Station business would be able to continue, o was irrational as unsupported by evidence.

o was made in breach of fair procedures in that the Commission did not, properly or at all, either consider or understand the Commission’s submissions as to interference with access to the Filling Station and as to the very significant damage to and/or likely closure of the business.

o was reached without taking into account that Article 32 of the Road Traffic (Traffic and Parking)

Regulations, 1997 will prohibit private motor vehicles from using the 24-hour bus lanes on the Old

Lissan Coal v ABP & NTA [2026] IEHC 255

Cabra Road as access to or egress from the Filling Station.

CG7 – NO ORAL HEARING

• The Impugned Decisions are invalid as the Commission’s reasons for not holding an oral hearing were irrational insofar as the Commission concluded that the documents before it sufficed for a full and proper assessment of the applications.

CG8 – LEGISLATION UNCONSTITUTIONAL

• The statutory bases for the Impugned Decisions and those provisions on which the Respondents rely in respect of same, including Section 44 of the Dublin Transport Authority Act, 2008, section 184 of the Local Government Act, 2001, sections 215 and/or 217C PDA 2000 (as amended), Section 10 of the Local Government (No. 2) Act, 1960 as substituted by Section 86 of the Housing Act, 1966 as amended by Section 6 and the Second Schedule of the Roads Act, 1993, and Section 76 of the Housing Act 1966 and the Third Schedule thereto and/or section 63 and/or section 68 of the 1845 Act are o repugnant to Articles 40.3 and 43 of the Constitution of Ireland and/or o contrary to Article 1 of the First Protocol of the European Convention on Human Rights o and invalid, insofar as they fail to provide for a statutory entitlement to any or adequate compensation to the Applicants for their loss by reason of the implementation of the CPO and/or the Scheme by the resultant interference with their property rights and/or with the public right of way at Old Cabra Road so as to cause them special damage.

(Given the strict pleading rules in judicial review, I will ignore the word “including”.)

• For that reason the defence of statutory authority to commit a private or public nuisance is unconstitutional as in breach of the Applicant’s Constitutional rights to o property under Article 40.3.1 and/or Article 43 of the Constitution and/or o earn, in the case of LCC, a livelihood of (in the operation of the Filling Station) under Article 40.3.1.

PRELIMINARY ISSUES

NTA’S POSITION - STANDING & EVIDENTIAL MATTERS

81. The NTA:

• plead that Lissan is not affected by the CPO and lacks standing to challenge it as none of their property is to be acquired by the CPO and so they lack sufficient interest within the meaning of s.50A(3)(b)(i)

Lissan Coal v ABP & NTA [2026] IEHC 255

PDA 2000.

• submit that in their supplemental affidavits, Lissan raise issues not before the Commission and not pleaded and do so breach of the Court’s direction that replying affidavits be confined to reply. They object to affidavits by Lissan’s property valuer Mr Brereton, Chartered Surveyor, sworn on 25 April 2025 and by their Auditor, Alistair Cooke, sworn on 30 April 2025.

COMMISSION’S POSITION - EVIDENTIAL MATTERS

82. The Commission submits that insofar as Lissan’s replying affidavits include comment, argument, and/or matters that should have been but were not put before the Commission and/or include matters not properly matters of reply to the opposing affidavits, they are inadmissible and/or no weight can be attached thereto.94

LISSAN’S POSITION - STANDING & EVIDENTIAL MATTERS

83. Lissan’s position as to standing is that a. they will suffer special and peculiar loss by the bus gates’ interference with the public right of way at Old Cabra Road,

b. the CPO Schedule should have listed ▪ that interference, as it is an acquisition of land within the meaning of s.213(2)(a) PDA 2000.

▪ Lissan, as persons from whom that acquisition of land would be made in that they will suffer particular damage by it and have a right of action accordingly in public nuisance but for the statutory authorisation of the scheme.

c. the NTA may not rely on those erroneous omissions from the schedule to deny Lissan standing to challenge the CPO confirmation.

d. Lissan have standing as persons ▪ affected by the CPO.

▪ entitled to fair procedures in terms of the right to be heard.

▪ entitled to claim compensation on confirmation of the CPO.

e. Failing the foregoing arguments and alternatively, Lissan have standing to assert, as pleaded, that the underlying CPO legislation is unconstitutional and in breach of the ECHR, First Protocol, Article 1 in not providing for Lissan’s inclusion in the CPO and/or in failing to provide them with an

94 This is a simplified version of an extremely wordy passage of the Commission’s submission. Lissan Coal v ABP & NTA [2026] IEHC 255

entitlement to seek compensation.

84. Lissan’s position as to the evidential objections is that a. They have not expanded their case. Their evidence to the Court as to the impact of the Scheme on the Filling Station falls within the scope of their submissions to the Commission.

b. Their valuation evidence is in direct response to the NTA’s ▪ plea95 disputing that the Scheme will reduce the value of the Site.

▪ failure to provide particulars or evidence to substantiate that plea.

▪ affidavit of Rory McDonnell,96 planner for the NTA, as to the Development Plan zoning of the Site and suggesting alternative uses for it.

▪ seeking to raise an issue whether the Site value for some other unspecified use might exceed its value as the Filling Station.

c. Their valuation evidence demonstrates that the going concern value of the Filling Station exceeds the residential development value of the Site. Though they do not quantify the effect, this appears to be accepted in principle in the NTA's replying affidavits of Tom Kirby and Simon McAllister – even if not to the extent suggested by the Lissan’s valuer.

PRELIMINARY ISSUES - DECISION

85. I do not find it useful to decide the issue of standing as a preliminary issue. It requires, in effect,

decision of issues whether in law the Scheme and CPO in truth intimate acquisitions of private rights, in whole or in part, from Lissan. These are issues central to the core grounds and Lissan must be entitled to litigate them.

86. As to the disputed evidence, little turns on the dispute between the witnesses – which is really as to degree and detail. I remain of the view, expressed at trial, that this issue whether I should consider Lissan’s affidavits filed late, is a storm in a teacup.97 Lissan’s valuer positively asserts that Site Value will be diminished by the bus gates. The NTA’s valuer disputes the quantification but does not provide his own and, more to the point, does not assert that Site Value will be undiminished by the bus gates. I bear in mind that there was no cross-examination on these issues on which Lissan bears the onus of proof. It is clear that the Scheme is likely to shut the Filling Station and that thereafter the Site will have a residual (which is not to say necessarily insignificant) development potential and monetary value. It seems to me probable that loss of some degree will ensue to Lissan from merely the failure of its business by reason of the Scheme. What is in

95 §63 Statement of Opposition.

96 Sworn 25 February 2025

97 Day 2 11:03. Lissan Coal v ABP & NTA [2026] IEHC 255

truth at issue in these proceedings is not the quantum of any loss or Site devaluation but the right to compensation, the means of claiming it and its alleged absence as allegedly undermining the validity of the Impugned Decisions such that they should be quashed.

LEGISLATIVE CONTEXT & COMMENTARY THEREON

NATIONAL TRANSPORT AUTHORITY & PUBLIC TRANSPORT INFRASTRUCTURE

87. The NTA98 is governed by the DTA 2008. Section 44(1) DTA 2008 prescribes NTA functions as including “(a) to secure the provision of,99 or to provide, public transport infrastructure”. The DTA 2008 does not define “infrastructure”, but section 2 DTA 2008 defines "public transport infrastructure" broadly as “infrastructure in connection with the provision of public passenger transport services, including100 bus infrastructure, and bus lanes,101 cycle and pedestrian facilities, interchange facilities or such other class of infrastructure, facility, whether of the same kind as the aforementioned or not, which the Authority has

prescribed to be public transport infrastructure under section 44(13).”102 Notable here is the inclusion of “bus

lanes” as infrastructure – though the DTA 2008 does not define the meaning of “bus lane”. And as a bus gate is a type of bus lane, a bus gate is public transport infrastructure for the purpose of the DTA 2008. Accordingly, the provision of bus gates falls within the statutory functions of the NTA.

88. By decision of 18 October 2019, the NTA decided to exercise its power under s.44(2) DTA 2008 to itself secure the provision of the public transport infrastructure comprised in the CBC Infrastructure Works, including the Scheme.103 The combined effect of s.44(1)(c) and s.44(6)(i)&(ii) DTA 2008 is to give the NTA a wide power of compulsory acquisition of land for, or adjacent104 to, public transport infrastructure and to make CPOs accordingly under Part XIV PDA 2000.105 The NTA exercised that power in making the CPO, the title to which cites s.44 DTA 2008.

89. Part 3 Chapter 4 DTA 2008106 assigned functions to the NTA and local authorities as to “traffic management”. Section 2 DTA 2008 defines “traffic management”, notably widely, as “regulatory, administrative and other measures necessary for the purposes of facilitating, managing, regulating and controlling — (a) the movement of persons and goods on public roads, …”

98 Formerly known as the Dublin Transport Authority. The name of the Dublin Transport Authority was changed to National Transport Authority by s.30

of the Public Transport Regulation Act 2009.

99 i.e. via provision by other public bodies.

100 What follows is excerpted from a longer list.

101 Emphasis added.

102 S.44(13) DTA 2008 empowers the NTA to prescribe such infrastructure, facility, building or vehicle as it sees fit as public transport infrastructure.

103 See EIAR Vol 2 §1.4. Section 44(2) obliges the NTA to have its functions effected by specified other public bodies on its behalf save where it

considers it more convenient, more expeditious, more effective or more economical to perform a function itself.

104 “where such acquisition and development contribute to the economic viability of the said infrastructure”.

105 Planning and Development Act 2000 - Part XIV (Acquisition of Land, etc.).

106 ss. 64 – 71 - 64. Strategic traffic management plan. 65. Local traffic plans. 66. Traffic management guidelines. 67. Directions to road authorities. 68.

Performance by Authority of functions of road authority. 69. Allocation of public funds to road authorities for traffic management. 70. Agreements and

arrangements between road authorities in relation to traffic management and other functions of Authority. 71. Demand management.

Lissan Coal v ABP & NTA [2026] IEHC 255

ROAD TRAFFIC LEGISLATION

90. Section 38 of the Road Traffic Act 1994 relates to traffic calming measures – in part as follows:

“38. (1) A road authority may, in the interest of the safety and convenience of road users, provide such traffic calming measures as they consider desirable in respect of public roads in their charge.

……………….

(9) “traffic calming measures” means measures which — (a) enhance the provision of public bus services, including measures which restrict or control access to all or part of a public road by mechanically propelled vehicles ….. for the purpose of enhancing public bus services, …..”

It is clear from this definition that bus gates are traffic calming measures.

91. Article 32 of the Traffic and Parking Regulations, 1997107 in effect defines the concept of a bus lane. It provides that bus lanes shall be indicated by specified traffic signs and that, save for access/egress or loading/unloading, a person shall not enter a bus lane with a vehicle other than a large public service vehicle, a taxi, a pedal cycle, an e-moped or an electric scooter,108 during the period of operation of the bus lane indicated on an information plate.

PROPOSED ROAD DEVELOPMENT – APPROVAL & EIA - ROADS ACT 1993

Terminology - “Proposed Road Development”/“Scheme”

92. Though, confusingly and for reasons apparently of no more than habit, entitled as a “Scheme”,109 the “Blanchardstown to City Centre Core Bus Corridor Scheme” is not in law a “scheme” as that word is used in the Roads Act 1993 or s.215 PDA 2000. The notices advertising it to the public assert that the NTA advances it as a “Proposed Road Development” within the meaning of Ss. 2, 50 and 51 of the Roads Act 1993. Ss 50 and 51 govern EIA of Proposed Road Developments and their approval by the Commission. It may be that entitling the Proposed Road Development as a “Scheme” was informed by the practice in compulsory purchase of referring to the “scheme” underlying CPO. In my view, consideration might be given to amending that practice as it relates to proposed road developments. But whatever the reason and despite the potential for confusion with Schemes under s.47 of the Roads Act 1993, as the NTA has entitled it as a

“Scheme” I will continue to refer to it as the “Scheme” save where it is useful to refer to it as a proposed

road development – which is what, in law, it is said by the NTA to be.

107 Road Traffic (Traffic and Parking) Regulations, 1997 as amended.

108 And certain Government vehicles.

109 And hence inviting confusion with a Roads Act “scheme” for a motorway scheme, service area scheme, busway scheme, protected road scheme.

Lissan Coal v ABP & NTA [2026] IEHC 255

93. S.2 of the Roads Act 1993 defines “proposed road development” as any proposed road development which requires EIA under s.50 of the Roads Act 1993. S.50 lists specific types of road developments irrelevant here110 and otherwise refers to road developments as consisting of “the construction of a proposed public road or the improvement of an existing public road”. S.50(1)(a)(iv) provides for the prescription of types of proposed road development as requiring EIA. Art 8 of the Roads Regulations 1994 prescribes, inter alia, “the realignment or widening of an existing road so as to provide four or more lanes, where such new, realigned or widened road would be eight kilometres or more in length in a rural area, or 500 metres or more in length in an urban area’”. The EIAR111 records that the Scheme is such a proposed road development. Accordingly, it requires EIA by the Commission and Commission approval under s.51 Roads Act 1993. That the Scheme is a “Proposed Road Development” within the meaning of the Roads Act 1993 is not disputed.

S.51 Approval & EIA

94. Ss.50 and 51 of the Roads Act 1993 and s.217C(2) PDA 2000,

• prohibit effecting a proposed road development unless the Commission112 has approved it or any part thereof, with or without modifications and/or conditions.113

• require EIA of certain types of proposed road development and submission of an EIAR accordingly to the Commission.

• prescribe the procedures attending such EIA and approval.

• require the Commission to “reach a reasoned conclusion on the significant effects of the proposed road development on the environment” and “duly take [it] into account” before approving the proposed road development114 and to record that reasoned conclusion in its approval order.115

95. The s.51 Approval process is essentially an EIA process in which the Commission “shall reach a reasoned conclusion on the significant effects of the proposed road development on the environment”.116 Having done so it “may, … approve a proposed road development, with or without modifications and subject to whatever environmental conditions … it considers appropriate, or may refuse to approve such development.” However, it is important to say that as EIA is procedural not substantive in its effect and while the EIA must inform the decision whether to approve, approval is not in law dependent on a finding that the proposed road development will not have significant adverse effects on the environment. So, while a finding of likely significant adverse effects may in practice diminish the prospect of approval, in law the Commission is free to approve despite such significant adverse effects - even if residual after mitigation.117

110 Motorways busways and service areas.

111 EIAR §1.5.4.

112 Formerly, the relevant Minister confirmed Roads Act Schemes. By s.215 PDA 2000, that function was transferred to the Board.

113 S.51(1) & (6) and s.217C(2) PDA 2000.

114 S.51(5) & (6).

115 S.51(6A).

116 S.51(5) Roads Act 1996.

117 Leaving aside, of course, any prospect of adverse effects on the integrity of European Sites – an issue irrelevant here.

Lissan Coal v ABP & NTA [2026] IEHC 255

96. Given that EIA is procedural not substantive and is not itself a development consent, and given s.51 Approval can issue despite residual significant adverse environmental effects, it is surprising that s.51 is not explicit as to the criteria for the grant or refusal of s.51 Approval. For example, it might have mandated a balancing, to a net conclusion, of significant residual adverse against significant residual beneficial environmental effects (EIA must consider both adverse and beneficial effects). It might have mandated consideration of effects other than environmental. However, given the functions of roads and of the Commission, it is not difficult to infer that, broadly at least, a s.51 decision will properly be informed by considerations of proper planning and sustainable development, by the public interests in the purposes for which the road development is proposed, by the likely efficacy of the proposed road development in advancing those interests, and by the private interests, brought to the Commission’s attention, which the proposed road development is likely to affect. I do not suggest this as a complete list of considerations relevant to a s.51 decision. All that said, such questions as to the criteria for the grant or refusal of s.51 approval loomed only obliquely in argument and I do not consider it necessary to take these considerations any further.

CPOS – MAKING, FORM, CONFIRMATION, ORAL HEARINGS & EFFECTS

97. The legislation governing compulsory purchase of land and compensation therefor is unfortunately complex and dispersed. As here applicable, and as has been seen above, under s.44 DTA 2008,118 the NTA may acquire and facilitate the development of land for the purpose of or adjacent to any public transport infrastructure – including by a CPO made by it in accordance with Part XIV PDA 2000. Thus, and in effect, s.213(2)(a) PDA 2000119 authorises the making of CPOs by the NTA. S.213(4) PDA 2000120 applies in such CPOs the CPO powers and procedures laid down by s.10 of the Local Government (No.2) Act, 1960, (“the 1960 Act”) as substituted by s.86 and Part V (ss. 75 to 87) and the Third Schedule of the Housing Act, 1966 – all as later amended, inter alia by Part XIV PDA 2000. 121 S.76 of the Housing Act, 1966 provides that “A housing authority acquiring land compulsorily for the purposes of this Act may be authorised to do so by means of a compulsory purchase order made by the authority and submitted to and confirmed by the Minister122 in accordance with the provisions contained in the Third Schedule to this Act.” By that convoluted

118 See ss.44(1)(c) and (6) and (7).

119 (2) (a) A local authority may, for the purposes of performing any of its functions … do all or any of the following:

(i) acquire land, permanently or temporarily, by agreement or compulsorily,

(ii) acquire, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right over or in respect of any

land or water or any substratum of land,

(iii) restrict or otherwise interfere with, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right

over or in respect of any land or water or any substratum of land,

and the performance of all or any of the functions referred to in subparagraphs (i), (ii) and (iii) are referred to in this Act as an “acquisition of land”.

120 (4) A local authority may be authorised by compulsory purchase order to acquire land for any of the purposes referred to in subsection (2) of this

section and section 10 (as amended by section 86 of the Housing Act, 1966) of the Local Government (No. 2) Act, 1960, shall be construed so as to

apply accordingly and the reference to “purposes” in section 10(1)(a) of that Act shall be construed as including purposes referred to in subsection (2)

of this section.

121 Such CPOS are colloquially known as “Housing Act CPOs” but, as this instance illustrates, Housing Act CPOs are used for many types of project other

than housing.

122 Reference to “Minister” construed s. 214(2)(f)(i) PDA 2000 - Transfer of Minister’s functions in relation to compulsory acquisition of land to Board.

214.— ...

(2) For the purposes of the compulsory acquisition of land by a local authority the following constructions shall apply: ...

(f) (i) the references to the Minister, or to the appropriate Minister, in sections 76, 77, 78 [and 80] of, and the Third Schedule to, the Housing Act, 1966,

shall be construed as referring to the Board and any connected references shall be construed accordingly; Lissan Coal v ABP & NTA [2026] IEHC 255

statutory authority, the NTA may make a CPO as if it were a housing authority and pursuant to what is colloquially known as the Housing Act CPO process.

98. The requirement of confirmation by the Commission of the NTA’s CPO and its power of confirmation are not in dispute. However, it may assist to observe that by s.214 and s.217C(1) PDA 2000123 the Commission now performs the CPO confirmation functions formerly performed by the Minister as to, inter alia, Housing Act CPOs - including CPOs relating to proposed road developments. By s.216 PDA 2000, the Commission’s confirmation is required unless, essentially, there are no objections to the CPO or any objections relate solely to compensation issues.

Public Rights of Way – Extinguishment, Restriction & Interference

99. The primary means of extinguishing a public right of way is not by compulsory purchase. Indeed, that very observation illustrates the incongruity of the idea – from whom would such a purchase be made: the entire public? S.73 of the Roads Act 1993 provides the direct means by way of local authority order made after a public consultation process and, in the case of extinguishment of a national or regional road, subject to Ministerial approval. While they are entitled to be heard in the process leading to extinguishment, I am unaware of any statutory provision entitling persons adversely affected by extinguishment under s.73 of the Roads Act 1993 of a public right of way to compensation – other than for the loss of a frontager’s private right of access to the highway – which right of access Lissan will not lose by reason of the Impugned Decisions.

100. A second means of extinguishing a public right of way arises in the context of compulsory purchase. S.10(4) of the 1960 Act,124 provides at

• s.10(4)(d),125 that a CPO may authorise the NTA,126 by order made after they have acquired the land,127 to extinguish any public right of way over or associated with the land or over adjacent land.

• s.10(4)(e),128 that where a CPO authorises the extinguishment of a public right of way the Commission shall hear at an oral hearing any objector to the extinguishment.129

101. So, and notably, s.10(4)(d) distinguishes the compulsory acquisition of land from the subsequent extinguishment of a public right of way over it. That clearly implies that the compulsory acquisition does not

123 Planning and Development Act 2000. s.217C(1) reads “Notwithstanding any provision of any of the enactments referred to in section 214, 215A,

215B or 215C concerning the confirming or otherwise of any compulsory acquisition, the Board shall, in relation to any of the functions transferred

under this Part respecting those matters, have the power to confirm a compulsory acquisition or any part thereof, with or without conditions or

modifications, or to annul an acquisition or any part thereof.”

124 as substituted by s.86 of, and the Third Schedule to, the Housing Act, 1966 and as amended by S.6 and the Second Schedule to the Roads Act 1993.

125 as amended by s.222 PDA 2000.

126 The section refers to “the Local authority” but in context that is to be read for present purposes as referring to the NTA.

127 A confirmed CPO only authorises the compulsory acquisition of land. The actual acquisition ensues thereafter.

128 as amended by s.6 and Schedule 2 of the Roads Act 1993 and Part XIV PDA 2000.

129 save where it decides not to confirm the CPO. Lissan Coal v ABP & NTA [2026] IEHC 255

per se “acquire” or extinguish the public right. That extinguishment follows afterwards and on foot of a distinct statutory power. Even the concept of “acquisition” of a public right of way seems incongruous as no person or body, whether or not they own the land over which it passes, can in any real sense own a public right of way. On the one hand, if such a person or body were to “own” the right to the exclusion of the public, it would be deprived of its essential characteristic of public user and in reality is extinguished. If, on the other hand, the public user continues, in what real sense can the “owner” be said to “own” the public right of way - as distinct from the land over which it passes? As to, specifically, the public right to pass and repass, private ownership thereof seems incompatible with its public character. I refer to “private” ownership but it does not seem to me that the position can be any different as to a public body – which, for this purpose (and indeed, generally) is not the “public” but is a legal person distinct from the public, albeit acting in the public interest for public purposes. To the extent that the concept of “ownership” of a public right of way has a sensible meaning, and to state the obvious, only the public, as a general body, can “own” it.

102. As a gloss on this observation and as to Lissan’s assertion of some sort of private property in the passing traffic of the Old Cabra Road, I accept Rangeley130 as authority that, for want of a dominant tenement, a public right of way is not an easement and is not akin to a private right of way. As counsel for the NTA put it,

• a public right of way does not attach to Lissan’s land and is not something in which Lissan has a particular proprietary interest.

• even if, on suffering special damage and ignoring statutory authority, Lissan had a proprietary and constitutionally protected right to a chose in action for damages, that doesn't mean he has a proprietary right or interest in the public right of way.131 Rather is it is, likely, a public right sui generis132 of which all may avail.

103. Also notable is that s.10 of the 1960 Act does not purport to address a circumstance in which, short of extinguishment, the Scheme underlying a CPO will restrict or interfere with a public right of way or obstruct it as the concept of obstruction is understood in the law of public nuisance.

Form & Content of CPOs – Restrictions of & Interferences with Public Rights of Way

104. Obviously, a CPO must identify all lands the acquisition of which it authorises. So, s.2 of the Housing

Act 1966 defines “land” as including, “in relation to the acquisition of land …. any interest or right in or over

land …” and in the Third Schedule to the Housing Act 1966,

• §1 prescribes that a CPO “shall be in the prescribed form and shall describe by reference to a map the land to which it relates”.

130 Rangeley v Midland Railway Co (1868) LR 3 Ch App 306.

131 Day 2 15:23 & 15:27. I am paraphrasing counsel somewhat but I think I have his sense correctly.

132 Sauvain, Highways 6th Ed’n §1-29. Lissan Coal v ABP & NTA [2026] IEHC 255

• §4 prescribes notice in the prescribed form o to the public - that the CPO has been made, of its effect, that it is to be submitted for confirmation and of provision for its inspection.

o to every owner, lessee and occupier of any land to which the CPO relates - that the CPO has been made, of its effect, that it is to be submitted for confirmation and of provision whereby objections can be made thereto.

105. Otherwise, the Acts are laconic as to the necessary content of the forms of CPO. Regulation assists. As to CPOs, SI 454/2000133 prescribes use in compulsory purchase of the forms scheduled to it “or forms substantially to the like effect”. Form 6 applies to the present case.134 Form 6, Schedule, Part III provides for listing public rights of way to be extinguished. No doubt it was thought necessary to put the public on notice of intended extinguishments as, as has been seen, s.10 of the 1960 Act permits objections to such extinguishments and entitles objectors to be heard at an oral hearing. However, short of extinguishment, Form 6, Schedule, Part III does not provide for listing intended restrictions of or other interferences with public rights of way.

106. Yet, as has been seen, the Schedule, Part III of the present CPO departs from Form 6. That is not, per

se, a problem as “forms substantially to the like effect” are permissible. The CPO divides Part III into Sections

A and B. Section A conforms to Form 6 in providing for listing public rights of way for extinguishment – though the relevant entry is “None”. Section B is not found in Form 6. As has been seen, in the present CPO it lists “public rights of way to be restricted or otherwise interfered with”.

107. Section B raises two questions:

• Is it necessary to list in a CPO “public rights of way to be restricted or otherwise interfered with”?

• What is meant by and what is the scope and extent of the concepts of restriction and interference?

108. As to the second question, Lissan say that the obligation to list in the CPO Schedule, Part III “public rights of way to be restricted or otherwise interfered with” derives from s.213(2)(a)(iii) PDA 2000. It includes in the concept “acquisition of land” any exercise of a function whereby the NTA may compulsorily “restrict or otherwise interfere with”, any easement, way-leave … or other right over or in respect of any land”. They say there is no reason to exclude public rights of way from the concept of “any … other right”.

109. The Respondents reply, no doubt correctly as a general proposition, that an obligation to list in the CPO every minor traffic management and traffic calming measure as a restriction or interference would be

133 Housing Act, 1966 (Acquisition of Land) Regulations, 2000.

134 Galligan & McGrath §3.30. Form No 1 is used for housing purposes under Housing Act 1966, s 76. Form No 6 is used for other purposes under the

Local Government (No 2) Act 1960, s 10. S.86 Housing Act 1966 substituted a new s.10 Local Government (No 2) Act 1960 in effect to allow non-

housing CPOs via the Housing Act 1966 process. Lissan Coal v ABP & NTA [2026] IEHC 255

utterly impractical. I infer that in a case such as this to do so could multiply the length of a CPO which already runs to over 950 pages.

110. But the Respondents go no further than merely asserting that bus gates are traffic management or traffic calming measures rather than restrictions in or interferences with public rights of way. They suggest no reasoned or legal basis why, if restrictions and interferences are to be listed, bus gates are not restrictions and interferences to be listed. Nor do they suggest a reasoned or legal basis for their implied argument that, for purposes of listing in a CPO, the concepts of “restriction” or “interference” on the one hand and the concepts of traffic management and traffic calming measures on the other hand, are mutually exclusive. Nor do they suggest any principled basis for distinguishing between such concepts for purposes of categorisation. There is some flavour in this of Humpty Dumpty’s approach to interpretation.135

111. I have not been made aware of any definition or delineation or contextualisation, in caselaw or elsewhere, of the concepts of “restriction” or “interference” which would alter their natural and ordinary meaning. Indeed, as s.2 of the 2008 Act defines “traffic management” as measures for “facilitating, managing, regulating and controlling the movement of persons and goods on public roads” and given also the definition of traffic calming measures set out above, the concepts would seem fairly readily to encompass the concepts of “restriction of” or “interference with” public rights of way.

112. The Respondents assert that, but beyond assertion provide no reason why,

• the exclusion in cycle lanes of “All rights of vehicular traffic (except pedal cycles and other bicycles)” is a

restriction or interference to be listed in the CPO - as has been done by the NTA in this case - rather than a traffic management or traffic calming measure not requiring such a listing,

• but bus gates which remove “general through traffic” such that through traffic on the entire Old Cabra Road (considered on an end-to-end basis) is “restricted exclusively to buses, taxis, cyclists and emergency vehicles” and which, it is agreed, will remove over 90% of existing traffic from the stretch of the Old Cabra Road in question, are not a restriction of or interference in that public right of way – or, for that matter, an “obstruction” of the public right of way for purposes of the law of public nuisance.

113. It is difficult to see how, in the ordinary meaning of those words and on the facts of this case, bus gates which exclude over 90% of the general traffic which would otherwise use that right of way, can be said not to be restrictions of and interferences with the public right of way between, and indeed at, the bus gates in question. Absent any reasoned argument proffered to the contrary, I accept Lissan’s argument that it is

135 In Lewis Carroll’s Through the Looking-Glass, Humpty Dumpty tells Alice that "When I use a word, it means just what I choose it to mean—neither

more nor less" “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty,

“which is to be master - that’s all.” Of course it must be acknowledged that statute, with its power of definition of the meanings of words, is master. But

no such statutory definitions were identified as relevant to this issue in this case. Lissan Coal v ABP & NTA [2026] IEHC 255

logically inconsistent to list cycle tracks and the like as restricting and interfering with public rights of way while omitting the bus gates from that list.

114. But however attractive that logic may be, and even if it exposes an inconsistency in the NTA’s completion of the CPO Forms, it does not answer the real question. The real question is the first posed above: whether there is in law a requirement to list in the CPO Schedule, Part III, restrictions of and interferences with public rights of way, short of their extinguishment? Or to put it, merely illustratively, another way - where is the legal requirement to expand the content of Form 6 as found in SI 454/2000 by listing such restrictions and interferences short of extinguishment?

115. Noting that CPO Form 6 does not envisage such a listing (suggestive of, but not in itself, an answer to the question, as forms cannot dictate substance) to answer this question seems to me to require consideration whether statute requires a CPO to list such restrictions and interferences. Lissan’s argument is that s.213(2)(a) PDA 2000 so requires. So to that I now turn.

S.213(2)(a) PDA 2000 – Does it Encompass Restriction of or Interference with a Public Right of Way such that a CPO must List it?

116. As I have said Lissan identify s.213(2)(a) PDA 2000 as requiring that interference with or restriction of a public right of way be identified in a CPO. It so argues by asserting that such an interference or restriction

is an “acquisition of land” within the meaning of s.213(2)(a). It is fair to say that this proposition is central to

their case. While apparent in any event, that centrality was particularly apparent in counsel’s submissions for Lissan in reply at trial.

117. S.213(2)(a) reads as follows:

“(2) (a) A local authority may, for the purposes of performing any of its functions ….., do all or any of the following:

(i) acquire land, permanently or temporarily, by agreement or compulsorily,

(ii) acquire, permanently or temporarily, by agreement or compulsorily, any easement, wayleave, water-right or other right over or in respect of any land or water or any substratum of land,

(iii) restrict or otherwise interfere with, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right over or in respect of any land or water or any substratum of land, and the performance of all or any of the functions referred to in subparagraphs (i), (ii) and (iii) are referred to in this Act as an “acquisition of land”.

Lissan Coal v ABP & NTA [2026] IEHC 255

118. In short, Lissan says that the CPO and/or the Scheme restrict or interfere with their alleged rights to the benefit, in the form of passing trade, of unrestricted public use of the Old Cabra Road such that, in that respect, the Scheme includes an “acquisition of land” from Lissan to which compulsory purchase laws and compensation rights apply. The net question is whether S.213(2)(a) encompasses, in the phrase “acquisition

of land”, the restriction of or interference with a public right of way. I have found this a difficult question, on

which I have found no authority. I resolve it as follows.

a) The starting point is that the phrase “any easement, way-leave … or other right over or in respect of any land” in s.213(2)(a)(ii) PDA 2000 as to the exercise of powers to “acquire” and in s.213(2)(a)(iii)

as to interferences and restrictions will have the same scope of meaning.

b) Next, it bears observing that, by the same statute, s.222 PDA 2000 amended s.10(4)(d) of the 1960 Act to provide that a CPO may authorise the NTA136 by order made after they have acquired the land,137 to extinguish any public right of way over or associated with the land acquired or adjacent land. Clearly, that power of extinction would have been unnecessary had s.213(2)(a)(ii) encompassed a power to “acquire” a public right of way. This suggests that the PDA 2000 did not include in s.213(2)(a)(ii) a power to “acquire” a public right of way.

c) If a public right of way falls outside the concept of “any easement, way-leave … or other right over or in respect of any land” in s.213(2)(a)(ii), it also falls outside the identical concept in s.213(2)(a)(iii).

d) To this point, the analysis implies that a restriction of or interference with a public right of way is not an “acquisition of land” within the meaning of s.213(2)(a)(iii) PDA 2000.

e) As to why that makes sense and even accepting that s.213(2)(a) PDA 2000 particularly defines “acquisition of land”, I have explained above why the very concept of “acquisition” of a public right of way is incongruous. And the verb in both of S.213(2)(a) (i) & (ii) is “acquire” - a verb the meaning of which is perfectly suited to describe the conveyance of ownership of a private interest but unsuited to the conveyance of a public interest.

f) Taking the analysis further, as it seems to me, one must note that ▪ a frontager’s only private right with respect to a public right of way is a right to access and egress between the way and the frontager’s contiguous lands.

▪ as soon as a frontager exercises that private right by egressing its lands onto the public road, that frontager passes thereafter over the public road only in virtue of its membership of the public availing of a public right of way. Ceteris paribus, such a frontager is no more affected in law by extinguishment of the public right of way than is any other member of the public.138

g) It follows that Lissan’s assertion of the “acquisition of land” from Lissan within the meaning of s.213(2)(a) PDA 2000 is in virtue of, specifically, Lissan’s membership of the public and invoking its

136 The section refers to “the local authority” but in context that is to be read for present purposes as referring to the NTA.

137 A confirmed CPO only authorises the compulsory acquisition of land. The actual acquisition ensues thereafter.

138 I address these issues elsewhere in this judgment. Lissan Coal v ABP & NTA [2026] IEHC 255

entitlement to avail of a public right.

h) Taking the analysis further still, Lissan in truth asserts the “acquisition of land” from Lissan in virtue not even of their own user of the public right of way. They assert it in virtue of the restriction of the exercise of that right by third parties: the passing public generally – i.e. their potential customers.

i) In that light, the startling breadth of Lissan’s case becomes apparent. On their case, any substantial restriction of a public right of way is an acquisition of land from every member of the public – or at least from every member of the public affected by the restriction. It is even an acquisition of land from any member of the public who, as a private landowner, appreciably avails of passing trade – that is, the exercise by others of their rights of passage. Logically on this view, it is even an acquisition of land from those whose lands are not used for a business which avails of passing trade but whose lands are increased in value by their potential for availing of passing trade.

j) As has been seen, s.10(4) of the 1960 Act provides for extinguishment of public rights of way as a matter distinct from, and otherwise encompassed, in a compulsory purchase of the lands on which it lies. Contrasting extinguishment with restriction and interference, it seems unlikely that the greater loss would not be an acquisition of land within the meaning of s.213(2)(a) PDA 2000 but the lesser would be.

k) Unsurprisingly, Lissan seek to evade the alarming conclusion that restriction of a public right of way is an acquisition of land from every member of the public by confining their proposal to those frontagers who suffer special damage by such restriction and invoking the right to damages for such special damage in the law of public nuisance. Noting that evasion, it seems to me, transforms Lissan’s case from one based in “acquisition of land” to one based in loss of a right to damages in tort for public nuisance. But whatever may be the true legal nature of a right to damages in tort for public nuisance,139 it is not an interest in land. While a right to damages may be a proprietary right, it is a very different sort of property to property in land.

l) Lissan’s confining their proposal that land is acquired to those frontagers who suffer special damage by restriction of a public right of way, such that the acquisition from them must be listed in the CPO, does not merely attempt to transmute a right to damages into an acquisition of land – a sort of legal philosopher’s stone. Remembering that those from whom an acquisition of land is to be made by CPO must be identified in the CPO and individually served with it, and while some instances may be obvious, Lissan’s proposition would put acquiring authorities in the impossible position when drafting and making the CPO of having to identify all those to be listed in the CPO by reference, prospectively, to whether they would suffer, by the underlying scheme, special damage remediable in public nuisance. And that by reference to a question whether in each case the effect on the landowner of the intended restriction of the public right of way would be so particular as to transform the public right into their individual private right. That would certainly be an all-butimpossible burden in large CPOs such as this - involving perhaps thousands of nearby (and perhaps not so nearby) properties more or less dependent on the public road in question. On pain, as Lissan

139 See further below. Lissan Coal v ABP & NTA [2026] IEHC 255

assert, of failure of the CPO, it would be a highly impractical and perilous requirement. The special damage rule in public nuisance “offers considerable scope for dispute on the facts and the cases record differing judicial views on what amounts to such damage.”140 Such a legislative intent is highly and objectively unlikely. It is in that sense that I suggested at trial that Lissan’s hard case invited me to make bad law.141

m) I note Lissan’s assertion that the NTA admit Lissan’s interpretation of s.213(2)(a) PDA 2000 as encompassing, in the phrase “acquisition of land”, the restriction of or interference with a public right of way. But, assuming such an admission, it could not bind the Commission and, more importantly, could not entrap the court in an incorrect interpretation of a statute – Dowling.142

n) I remain, essentially, of a view expressed at trial to counsel for Lissan.143 Lissan has no private right to avail of the public right of way. It has the same right as any other member of the public to avail of it.

What it may have, depending on circumstance, is a right to damages in public nuisance for peculiar damage inflicted on it by interference with that public right of way. That is not an acquisition of land within s.213 PDA 2000.

119. If I am wrong in the foregoing, I accept the NTA’s and the State’s, perhaps simpler, proposition that listing a restriction of or interference with a public right of way in a CPO is unnecessary to advancing the Scheme where the s.51 Approval provides a statutory authority for the Scheme, such that the scheme is nether wrongful nor tortious - which prevents even a person who has suffered special damage from recovering damages for public nuisance.144 Specifically, the bus gates are authorised by the s.51 Approval – not by the CPO. This is easy to understand if one considers the possibility of the installation of a bus lane or bus gates other than in the context of a wider project such as the Scheme and in a context in which no compulsory land acquisition is otherwise required. In that light, Lissan’s case amounts to an untenable proposition that every bus gate (or, for that matter, any regulatory alteration or diminution of access to or use of a public road) requires, in effect as a matter of constitutional law, a CPO if it would substantially devalue any property and, by extension that, on pain of failure of the project, all those who will suffer such special damage (wherever they may be) must be listed in that CPO.145 I reject that proposition.

140 Lord Hoffmann, Wildtree Hotels Ltd. v. Harrow L.B.C. [2001] 2 A.C. 1.

141 Day 1 14:11. et seq.

142 Dowling v. An Bord Pleanála [2024] IEHC 249 §43 et seq.

143 Day 1 12:52.

144 Day 2 15:13 et seq.

145 Discussed Day 3 12:47 et seq. Lissan Coal v ABP & NTA [2026] IEHC 255

CONCLUSION – S.213(2)(A) PDA 2000 DOES NOT REQUIRE THAT A CPO LIST RESTRICTIONS TO & INTERFERENCES WITH PUBLIC RIGHTS OF WAY - NO LANDS ARE TO BE ACQUIRED FROM LISSAN – GROUND 3

120. I have held that no reasoned argument is proffered by the Respondents that the phrase “restrictions and interferences” should not encompass the effect of the Scheme’s bus gates on the public right of way along Old Cabra Road and so I hold that the ordinary meaning of that phrase applies such that it does encompass that effect.

121. However, for the reasons I have sought to explain above, and on the arguments made in this case, I

reject Lissan’s argument that s.213(2)(a) PDA 2000, by the phrase “other right over or in respect of any land”,

encompasses public rights of way or supposed private rights to avail of public rights of way. It follows that the Schedule, Part III to CPO Form 6, as set out in SI 454/2000146 accurately and completely, as it relates to public rights of way, reflects, the listing obligations imposed by statute. While in this case the CPO did so, it was not obliged to list restrictions of and interferences with public rights of way.

122. Some further conclusions follow on the facts of this case:

• By the CPO, no lands are to be acquired from Lissan.

• As no lands are to be acquired from it, Lissan has no claim to compensation for injurious affection under s.63 of the 1845 Act – which applies only where the exercise of statutory powers on land taken from the claimant injuriously affects lands retained by the clamant which had been held with the lands taken.147

• The authorisation of the bus gates consists in the s.51 Approval.

• As has been seen, by s.51 the Commission can approve with or without modifications and/or conditions – including by way of omission of, or amendment to the location or operation of, the bus gates. Lissan was fully heard by the Commission in that regard and suffered no unfairness of procedure in that regard.

123. So the CPO will not be quashed those accounts. In substance this disposes of Ground 3.

No Disadvantage to Lissan

124. By way of important postscript to that conclusion, it bears observing that it does not unfairly disadvantage Lissan in the circumstances of this case. That is so for two reasons:

146 Housing Act, 1966 (Acquisition of Land) Regulations, 2000.

147 Galligan & McGrath, §30.48; Chadwick and Goff v Fingal County Council [2008] 3 IR 66; Electricity Supply Board v Good [2025] IESC 27, [2025] 5 JIC

2703 §23. Lissan accepts that if, contrary to its submission, no land is taken from it by the CPO, then it cannot recover s.63 Compensation – Day 1 15:41

& 15:43-45. Lissan Coal v ABP & NTA [2026] IEHC 255

• First, Lissan has at all material times been apprised of the intended restriction of and interference with the public right of way. Regardless of the content of the CPO itself, the NTA in its s.51 Approval application had to, and did, properly and adequately describe the Scheme and its environmental effects. It is inconceivable that it could in so doing refrain from describing the effect of the bus gates’ restriction of and interference with the public right of way by way of the exclusion of through private traffic. And, of course and as has been seen, it did so not merely in the EIAR and later communication in the process but did so at least, if provisionally, as early as November 2018.

• Second, as no land is to be taken from Lissan under the CPO, it has no right under s.63 of the 1845 Act to claim compensation for injurious affection of the site. Any statutory right to such compensation, if any, arises under s.68 of the 1845 Act – which, as will be seen, has “nothing to do with compulsory acquisition”. That being so, I am not persuaded that any failure to list in the CPO Lissan or any interference with or restriction of the public right of way along Old Cabra Road, precludes Lissan’s making such claim pursuant to s.68 of the 1845 Act as it may prove able to make.

CPOS – COMPENSATION, INJURIOUS AFFECTION, S.68 OF THE 1845 ACT, & MCCARTHY/WILDTREE PRINCIPLES

125. As its title indicates, the 1845 Act is a “clauses” act. It is designed to provide a standard set of statutory clauses, including as to compensation, for incorporation and use in various circumstances of compulsory purchase.148 It may or may not be incorporated in a given instance. It was incorporated in the CPO.

126. Galligan & McGrath149 state that where part only of a claimant’s land is acquired, the part (s)he retains may be reduced in value as a result of the acquisition and of the use which is to be made of the land acquired from him/her. (S)he may also be disturbed in the occupation of the retained land. For these losses the claimant is entitled to compensation by s.63150 of the 1845 Act. The right to what I will call “s.63 compensation” is restricted to cases where the injurious affection of lands retained by the claimant results from the exercise of statutory powers on lands acquired from the claimant and which had been held with the lands retained.151 As I have held, no lands are to be acquired from Lissan.

148 Lands Clauses Consolidation Act 1845. The Long Title reads: “An Act for consolidating in One Act certain Provisions usually inserted in Acts

authorizing the taking of Lands for Undertakings of a public Nature.” Section 1 of the 1845 Act provides that the statute ‘shall apply to every

undertaking authorized by any Act which shall hereafter be passed, and which shall authorise the Purchase or taking of Lands for such undertaking, and

this Act shall be incorporated with such Act’.

149 Galligan & McGrath, Compulsory Purchase and Compensation in Ireland: Law and Practice Bloomsbury Professional 2013, §30.01.

150 S.63 states: “In estimating the purchase money or compensation to be paid by the promoters of the undertaking, in any of the cases aforesaid,

regard shall be had by the justices, arbitrators or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the

promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken

from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act or any

Act incorporated therewith.”

151 Galligan & McGrath, §30.48. Electricity Supply Board v Good [2025] IESC 27, [2025] 5 JIC 2703 §23. Retained and acquired lands are “held with”

one another for this purpose when they are “so near to each other and so situated that the possession and control of each gives an enhanced value to

all of them’ - the test is whether possession of each property gives an enhanced value to them both - Cowper Essex v. Acton (1889) 14 App. Cas. 153,

167; Mohammed v. Newcastle City Council [2015] UKUT 439 §303. Lissan Coal v ABP & NTA [2026] IEHC 255

127. One must look to s.68 of the 1845 Act for the right to what I will call “s.68 compensation” for injurious affection where no lands are taken from the claimant. As its interpretation has little basis in its text, I will cite it only to the extent of its reference to “compensation in respect of any lands, or of any interest therein, which shall have been … injuriously affected by the execution152 of the works”

128. As Galligan & McGrath153 observe, as long ago as 1975 Lord Wilberforce pointed out in Argyle Motors154 that, by a century of judicial decisions, s.68 had received ‘an interpretation which fixes upon it a meaning having little perceptible relation to the words used’. Carnworth LJ in Ocean Leisure155 referred to the “inscrutable legacy of s.68” as part of the “deplorable state of the statutory law of compensation” in England, which their Law Commission had described as “an unwieldy and lumbering creature” and as “fraught with complexity and obscurity”. I hope I am not alone of the participants in the hearing of this case in considering - and it is no slight whatsoever to the arguments made to me – that the position in Ireland is, generally, no different. More specifically, Murray J in ESB v Good156 describes the judicial interpretation of s.68 as having been “neither totally coherent nor entirely logical”.

129. The meaning ascribed to s.68 by the cases is that it gives a limited right to compensation for injurious affection of lands not held with land taken by the CPO or where no land is taken from the claimant. Scott LJ in Horn157 said, as Murray J records in Good, that s.68 compensation,

“… has nothing to do with compulsory acquisition. It is a remedy for injuries caused by the works authorised by the Act158 to the lands of an owner who has had none of his land taken in that locality. The remedy is given because Parliament by authorising the works has prevented damage caused by them from being actionable, and the compensation is given as a substitute for damages at law.”

130. As Cripps makes clear, by s.68 “entitled to compensation are all those who were injured by the execution of the works and have not been compensated. Persons, therefore, who have had no lands taken are entitled to compensation under section 68.”159 In other words, s.68 provides statutory compensation for what would be nuisance due to the works but for their statutory authority such that damages are irrecoverable. But, and importantly, s.68 compensation is limited by the McCarthy/Wildtree Principles.

152 Emphasis added.

153 Galligan & McGrath, §30.51 et seq.

154 Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99, HL.

155 Ocean Leisure Ltd v Westminster City Council, [2004] EWCA Civ 970, [2005] 1 P. & C.R. 25.

156 Electricity Supply Board v Good [2025] IESC 27, [2025] 5 JIC 2703 – to which I was referred after trial by the NTA on notice to and without objection

by the other parties.

157 Horn v Sunderland Corporation [1941] 2 KB 26, CA.

158 This reflects the fact that before CPOs came into use, authority for compulsory purchase of land was usually by special act of parliament – typically

for Victorian railways.

159 Cripps, Compulsory Acquisition of Land, 1962, §5-015. Cripps adds that persons who have had lands taken but are not entitled to section 63

compensation may be entitled to section 68 compensation. They include persons whose retained lands were not held with the lands taken from them.

Lissan Coal v ABP & NTA [2026] IEHC 255

131. Four principles governing the right to s.68 compensation were first laid down in McCarthy.160 Lord Chelmsford said:

‘Where by the construction of works authorised by the legislature there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of, in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, there arises a claim to compensation. [But] …. where the right which the owner of the house is entitled to exercise is one which he possesses in common with the public, there must be something peculiar to the right in connection with the house to distinguish it from that which is enjoyed by the rest of the world.’

132. Applying the McCarthy/Wildtree Principles can be complex. I have found no Irish decision of the Superior Courts actually applying them. As far as I know successful such claims are rare. However, s.68 and the McCarthy/Wildtree Principles are long-since regarded as Irish law – see Keane on Local Government, 1982,161 McDermott & Woulfe, 1992,162 Galligan & McGrath, 2013163 and the Law Reform Commission Report on Compulsory Purchase, 2023.164 Murray J records in Good only that under s.68 the right to compensation is operative in accordance with four conditions165 derived from McCarthy. Fennelly J in Chadwick & Goff166 - though it was a case of s.63 compensation - said that s.68

“….. has been interpreted as applying to compensation for things done during the essentially temporary phase of the "execution" of the authorised works, but also as making such compensation available to landowners from whom no land has been taken. The principles regarding compensation under the modern English version of s.68 are extensively reviewed by Lord Hoffmann in Wildtree ….”

133. The facts in Wildtree167 were that Harrow LBC, over 5 years, did improvement works, under statutory powers, to a bridge and its approaches near Wildtree’s Harrow Hotel. A CPO was made but no hotel land was taken. Wildtree said that during and due to the works, various forms of interference with their use and enjoyment of the hotel ensued. Hoardings obscured the hotel and prevented or restricted access by themselves and their customers. For long periods the roads and pavements leading to the hotel were totally or partially obstructed or closed. The works caused continual noise, dust and vibration. Their

160 Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243.

161 1st Edition, 1982 p274.

162 Compulsory Purchase and Compensation in Ireland: Law and Practice, 1992, Butterworths, p271.

163 §30.48 et seq.

164 Law Reform Commission Report Compulsory Acquisition of Land 2023, §5.81 et seq.

165 Being that the damage or loss must

• result from an act made lawful by the statutory powers of the promoters,

• be such as would have been actionable but for the statutory powers,

• be an injury to lands and not a personal injury or injury to trade, be occasioned by the construction of the works and not by their user.

166 Chadwick and Goff v Fingal CC [2007] IESC 4; [2008] 3 IR 66.

167 Wildtree Hotels Ltd. v. Harrow L.B.C. [2001] 2 A.C. 1. Lissan Coal v ABP & NTA [2026] IEHC 255

business suffered. Wildtree said that, but for the statutory authority for the works, they would have had an action for public and private nuisance.

134. Lord Hoffman in Wildtree considered a modernised version of s.68 as interpreted in the caselaw.168 He cited Argyle Motors for the view that “the effect which had been given to section 68 was not always easy to justify on normal rules of statutory construction”. He cited Brand169 for the observation that s.68, in terms, "does not define the conditions under which the person whose land has been injuriously affected is to be entitled to compensation. It rather assumes that the right to compensation has been given in some other enactments, and it contents itself with pointing out the manner in which that compensation shall be obtained." However, Lord Hoffman said, “despite its procedural appearance, the courts treated section 68 as creating a substantive right to compensation on principles which were worked out in a series of cases without reference to other enactments. These principles were established after much travail and section 10(2)170 shows that whatever their logic or merits, Parliament did not want them re-examined.”

McCarthy/Wildtree Principles

135. Lord Hoffman then identified 5 settled basic principles of s.68 compensation. However, I should caution that Lord Hoffman followed his listing of the 5 principles with a section of his judgment, as to their

application, entitled “Conflicting policies and conflicting decisions”. That content derived essentially from the

Victorian “railway” cases and from individual judges’ opinions on questions of economic and social policy. Some favoured full compensation for all whose property was adversely affected by a railway - on the basis that railways should not create externalities - that is, costs involuntarily borne by others which were not taken into account in assessing the profitability of the enterprise. Others thought, on a “floodgates” basis, that the public interest required that liability be narrowly bounded as otherwise all whose economic interests were damaged by the construction of the railways - for example post houses and coaching inns - would be entitled to compensation. Lord Hoffman said of the “railway” cases that they “do not display a steady development of the law but the shifting ascendancies of one view or the other.” Indeed, the question, in constitutional law, of the imposition of the costs of societal benefits on sections of society remains difficult.171

136. Nonetheless, I will combine as follows Lord Hoffman’s “Wildtree” principles with the account of the “McCarthy Rules” given in Galligan & McGrath172 – which considered Wildtree - and I add certain comment.173

168 Section 10(1) of the English Compulsory Purchase Act 1965. S.10(2) reads "This section shall be construed as affording in all cases a right to

compensation for injurious affection to land which is the same as the right which section 68 of the Lands Clauses Consolidation Act 1845 has been

construed as affording ….”

169 Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171, 217-218.

170 i.e. the modernised version of s.68 as interpreted in the caselaw.

171 See Hogan, Whyte, Kenny & Walsh, Kelly: The Irish Constitution, 2018 §7.3.132 et seq.

172 Compulsory Purchase §30.53 et seq.

173 I have adapted the text somewhat – primarily to refer to s.68 of the 1845 Act as opposed to s.10 of the 1965 Act.

Lissan Coal v ABP & NTA [2026] IEHC 255

[1] S.68 of the 1845 Act gives a right to compensation to persons174 from whom no land has been taken whose land, or interest in land, has been “injuriously affected” by the execution – the construction - of the works. It also applies where land was taken but was not held with the lands retained. If land has been taken, compensation for injurious affection of retained land formerly held with the land taken is calculated, on different principles, under s.63 of the 1845 Act.

[2] The phrase "injuriously affected" connotes “injuria”. That is to say, damage which would have been wrongful – actionable - but for the protection afforded by statutory powers authorising the works.175 So, s.68 compensation is not payable unless the depreciation in the value of the land results, by the execution of the works, from an interference with the claimant’s legal rights as they would have subsisted but for the statutory power. In practice, this means that a claimant must show that, but for the statute, (s)he would have had an action for damages for public or private nuisance. As counsel for the NTA put it, s.68 compensation is a quid pro quo for statutory authority to commit what would otherwise be a public nuisance – though, as we will see, that of itself does not imply that s.68 compensation is a constitutional necessity.176 In this regard I comment as follows:

▪ Interference by the execution of the works with a frontager’s private right of access to the public highway would be actionable as a private nuisance but for the statutory authority for the works and so, ceteris paribus, is compensable under s.68. But such interference is not at issue in the present case. Lissan’s access to the public highway is unaffected by the Scheme, save perhaps briefly during its construction – but I have no evidence in that regard.

▪ Of course, and as has been said, this right of action in private nuisance is not derived from the frontager’s right, having exercised his/her private right of access to the highway, to thereupon, and as a member of the public, use the highway in exercise of the public right of way thereover.

But a public nuisance, such as an interference with the use of a public highway, is a criminal wrong to the public as a whole and the ordinary common law remedy was a prosecution. To recover damages in tort for an interference with the use of a public highway, a plaintiff must prove that (s)he suffered particular/special177 damage greater than that suffered by members of the public generally.178 So, to recover s.68 compensation by reference to public nuisance, the claimant must prove such particular/special damage. This rule offers considerable scope for dispute on the facts and the cases record differing judicial views on what amounts to such damage.179

[3] The damage must result from the lawful exercise by the statutory authority of its statutory

174 The sources use the word “anyone” – but that seems to me to overstate the position given the remaining rules.

175 Citing In re Penny and South Eastern Railway Co (1857) 7 E & B 660, 669. Galligan & McGrath identify this as “McCarthy Rule 2” and cite Ricket v

Metropolitan Railway (1867) LR 2 HL 175, HL. This is a point of distinction from s.63 Compensation - which is payable regardless whether the damage

would have been wrongful – actionable - but for the protection afforded by statutory powers. See Chadwick & Goff v Fingal County Council, [2007] IESC

49, [2008] 3 I.R. 66.

176 Day 2 14:59.

177 The two words are used interchangeably.

178 Lord Hoffmann’s Principle 2.

179 Lord Hoffmann, Wildtree Hotels Ltd. v. Harrow L.B.C. [2001] 2 A.C. 1. Lissan Coal v ABP & NTA [2026] IEHC 255

powers.180 No s.68 compensation is payable if the statutory authority acted outside its powers.181 In such a case, any remedy lies in a common law action for damages.182 (i.e. damages are recoverable if the works are done negligently.)

[4] S.68 compensation is payable only for damage to - and injury to the value of183 - the claimant's land or interest in land. There must be a direct physical interference with the land or with an “appurtenant”

public or private right the exercise of which benefits the land, which right the owner or occupier is entitled to exercise.184 (S)he is not entitled to compensation for personal loss. The damage suffered must be damage to the land itself, not personal inconvenience or damage to trade only.185 McCarthy held that “A mere personal obstruction or inconvenience, or a damage occasioned to a man's trade or the goodwill of his business” although such that, but for authorising statute, it might have supported a common law action for damages, will not entitle the injured party to compensation under s.68.186

However, Lord Hoffmann said in Wildtree that while s.68 compensation is irrecoverable for loss of profits, if lost profitability reduces the value of the lands, s.68 compensation is recoverable for this reduction. He said: “This rule also provides scope for a great deal of argument about whether, for example, interference with the utility of the land for the purpose of carrying on a business is damage to the land or a personal loss by the proprietor of the business. On this point, the authorities also reveal divergent opinions.”187

[5] S.68 compensation is for injurious affection caused by the "execution" of the works. “The injury must arise from the execution of the works and not from their subsequent use.” So, for example, s.68 compensates for the effects of the construction of a railway but not for its operation. The claimant could claim compensation if a railway embankment unreasonably obstructed access to her property but not for what would otherwise have been a nuisance caused by the noise, vibrations, smoke or smell of passing trains.188 As has been seen, Fennelly J in Chadwick & Goff189 said that s.68 compensation is “… for things done during the essentially temporary phase of the "execution" of the authorised works”.

180 Galligan & McGrath identify this as “McCarthy Rule 1”.

181 This is a corollary of Lord Hoffmann’s Principle 2.

182 Citing Imperial Gas Light and Coke Co v Broadbent (1859) 7 HL Cas 600, 612.

183 Halsbury’s Laws of England, Compulsory Acquisition of Land (Volume 18 (2022)) > 5. Use of Land Acquired and Compensation for Injury > (5)

Compensation for Injury by Authorised Works §636.

184 Galligan & McGrath §30.60. The authors refer to “any appurtenant right, private or public” – a phrase used by Lord Hoffmann – though not in his

exposition of the principles. A public right is not, at least technically, understood as, in law, “appurtenant” to private land. In Moto Hospitality (infra)

Carnworth LJ, considering Wildtree, said: “It is a word normally associated with private rights attached to land, not with the law of public nuisance” and

it had been used by Lord Hoffmann “not as exposition, but as convenient shorthand.”

185 Galligan & McGrath identify this as “McCarthy Rule 3”. In Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation (1973) 27 P&CR 122 Argyle, car

dealers, had a year-to-year lease of premises with a frontage to a street which was reconstructed in works to improve the approaches to the Mersey

Tunnel. During and after the works the property had no direct access to the Street and Argyle, trade suffered. Argyle sought a declaration of

entitlement to compensation under s.10 of the Compulsory Purchase Act 1965 (the equivalent of s.68 of the 1845 Act) for loss of profits caused by the

road construction. The House of Lords dismissed the claim. The words ‘injuriously affected’ in section 10 referred to damage to property and not to

trade or personal injury. However Argyle later made a claim to the Lands Tribunal (Leake and Argyle Motors (Birkenhead) Ltd v Wirral Metropolitan

Borough [1977] 2 EGLR 171) which awarded £1,000 for the reduction in the value of Argyle leasehold interest and £12,750 for the reduction in the

value of the freeholder’s interest. See in in this regard the UK Land Compensation Manual, Practice Note 14/2 : Case law - section 10 Compulsory

Purchase Act 1965.

186 McCarthy p256.

187 Lord Hoffmann.

188 Lord Hoffmann, citing Hammersmith and City Railway Co v Brand LR 4 HL 171.

189 Chadwick and Goff v Fingal CC [2007] IESC 4; [2008] 3 IR 66. Lissan Coal v ABP & NTA [2026] IEHC 255

Indeed, counsel for Lissan says that the exclusion of s.68 compensation for injurious affection by the operation of the Scheme would render s.68 unresponsive to its major claim.190 In response to my admission to lack of clarity whether Lissan asserted that it had or that it had not a right to s.68 compensation, counsel also said that Lissan has no claim for s.68 compensation because the Scheme includes no physical works affecting Lissan.191

137. The complexity of the law in this area and its application – not least as recorded by Lord Hoffmann – and, one might almost say, the poverty of the prospect of s.68 compensation - can be illustrated by the interaction of the McCarthy/Wildtree Principles as to injurious affection by dust, noise and vibration as Lord Hoffmann described that interaction. He held that damage to the amenity of land, such as personal discomfort by dust, noise and vibration, is damage to land, just as much as is physical injury to land, for the purposes of section 68. Yet he thought s.68 compensation for such personal discomfort almost impossible to recover. He explained

• That s.68 compensation is limited to injurious affection by the construction of the works. And that injurious affection must have been actionable in nuisance.

• Yet actionability in private nuisance is subject to the principle that reasonable use of land, with due regard to the interests of neighbours, even if causing personal discomfort is not actionable – the rule of give and take. Building works are inherently temporary and, if reasonably done, neighbours must “put up with a certain amount of discomfort, because operations of that kind cannot be carried on at all without a certain amount of noise and … of dust.”192

• Proof of actionability in private nuisance for those types of damage depends on proof that the works were done without reasonable consideration for the neighbours. Yet statutory authority to do works, and the defence of statutory authority in nuisance is subject to the condition that “the works are done with all reasonable regard and care for the interests of other persons”.193 So, as to noise and vibration by building works, if they are done o with reasonable regard and care, they are not actionable at common law and so s.68 compensation is irrecoverable.

o without reasonable regard and care, the defence of statutory authority is unavailable, damages are recoverable at common law and so s.68 compensation is irrecoverable.

As Lord Hoffmann more or less accepted, as to such forms of damage there is “no daylight” between the two rules that for s.68 compensation to be payable, first, the works must have been lawfully done in reliance on statutory authority (and so done with reasonable regard and care), second they must have caused damage actionable at common law (and so done without reasonable regard and care). In short and as to such as noise and vibration, the landowner is left to the common law actions for damages for nuisance or negligence and must prove that the statutory undertaker of the works exceeded its statutory powers or exercised them negligently.

190 Day 1 12:39. Leaving aside the possibility of its minor claim for injurious affection in the Scheme construction phase.

191 Day 1 14:25 & 26 & 15:37.

192 Lord Hoffmann, citing Andreae v Selfridge & Co Ltd [1938] Ch 1, 5-6.

193 Lord Hoffmann, citing Allen v Gulf Oil Refining Ltd [1981] AC 1001, 1011. Lissan Coal v ABP & NTA [2026] IEHC 255

Moto Hospitality

138. Lissan cites Moto Hospitality.194 Its facts resonate here, though the resultant decision is complex. Motorway junction improvement works stopped up a slip road such that routes to Moto’s motorway service area (“MSA”) were longer and less direct, thereby, Moto said, reducing its custom by about 34% and substantially diminishing the value of its site as an MSA. No land was taken from Moto – which claimed s.68 compensation195 for the temporary (during the execution of the works) and permanent (due to the revised road layout) diminution in value of its leasehold interest. Carnworth LJ described the case as raising “important and difficult issues as to the scope of the statutory right to compensation”. In part, the decision turned on statutory interpretation irrelevant here. Carnworth LJ assumed that there had been a significant adverse effect on the attractiveness of the MSA to motorway users and so on its value. He held

• That compulsory acquisition of land from the claimant was not essential to s.68 compensation.

• Where s.68 compensation is based on what would be public nuisance but for statutory authority, the loss by reason of the works must be 'particular, direct, and substantial'.

• Ceteris paribus, and though a claim could not be made for loss of profit as such, s.68 compensation is available where stopping up a highway significantly diminished custom reaching a business premises if that diminution reduced the letting value of the land.

139. However, Carnworth LJ said

“The Highways Acts do not give adjoining owners, even those whose businesses are directly linked to the needs of traffic, any guarantee or expectation that the highway system in their immediate area, or the flow of traffic on it, will remain unchanged. Traffic conditions in a particular area may be affected by all kinds of traffic orders or works, near or distant, properly carried out under the management powers of the highway authority. Such changes may be advantageous or disadvantageous to a particular traffic-based operation. They do not in themselves give rise to a claim to compensation, but must be accepted as part of ordinary business risk.

In this context, to justify a claim under s (68), it might be said, there would need to be at the least a direct interference with the access to an individual site which goes beyond what is ordinarily incidental to the traffic objectives of the scheme as a whole.”

It should be said that in this latter view, Carnworth J was consoled by the particular applicable statutory provision - owners were protected by an obligation to provide them with 'reasonably convenient' alternatives, and their right to object if not so provided.

194 Moto Hospitality Ltd v Secretary of State for Transport [2007] EWCA Civ 764, [2008] 2 All ER 718, [2008] 1 WLR 2822, [2007] NLJR 1426, [2007] RVR

247, [2007] All ER (D) 430 (Jul).

195 In fact the UK equivalent - s.10 Compulsory Purchase Act 1965. Lissan Coal v ABP & NTA [2026] IEHC 255

Timing of s.68 Compensation Claim

140. Halsbury states that s.68 compensation may be claimed only once injury has occurred.196 Though, once it has occurred, compensation for future injury may be claimed. Similarly, Galligan & McGrath state that “The claim cannot be properly assessed until the injury complained of has occurred, i.e. when the works that caused the injury are more or less completed.”197 On that basis Lissan may not make a s.68 compensation claim unless, and until after, the Scheme is effected.

ASSUMPTION OF NO STATUTORY COMPENSATION, FAILURE TO LIST IN CPO & WHETHER TO DECIDE CONSTITUTIONAL ISSUES

141. Contextually given the consideration in ESB v Good198 of 1845 Act compensation for injurious affection, given also that no land is to be acquired from Lissan and also in deference to the arguments made, it has seemed to me desirable to give an account of the law as to 1845 Act compensation for injurious affection. However, the jurisdiction to award such compensation is a matter, in the first instance, for a property arbitrator to whom a claim will have been made pursuant to the 1919 Act.199 It is not, in the first instance, for the High Court to decide. It seems to me undesirable, if it can fairly and properly be avoided, to determine in these proceedings and in advance what, even in principle, the outcome of such a claim is to be.

142. As stated Lissan accepted that on, any view, as no physical works of the Scheme will affect it, s.68

could not at all avail it as to the Scheme’s effects, once operational, on its business. It accepted that any s.68

claim, from which it says (as I have found, erroneously) it has been shut out, would be limited to such effects as might arise in the construction of the Scheme. But the elucidation of such special damage as such effects might amount to was undeveloped – certainly there is no suggestion that those effects would so severe as to shut Lissan’s business. It is clearly the Scheme’s operation which will, I accept, do that. That consideration drove counsel to say: “Ultimately I don't mind if it isn't under the statutory provisions if I have a constitutional right to protection there and I am entitled to compensation under the constitution.” 200 Ultimately and as to its assertion of a right to compensation, that is where all roads in the case lead.

143. Necessarily underlying Lissan’s case is the proposition that by the Impugned Decisions there will be taken from them, without compensation, a right of property for the taking of which the Constitution requires that they be compensated. If no such right is taken, they have no remedy even if neither statute nor common law will compensate them.

196 Citing Macey v Metropolitan Board of Works (1864) 33 LJ Ch 377; Stone v Yeovil Corp’n (1876) 2 CPD 99, CA; Chamberlain v West End of London

and Crystal Palace Rly Co (1863) 2 B & S 617 at 638, Ex Ch. And R v Poulter (1887) 20 QBD 132, CA.

197 Galligan & McGrath on CPO §30.73. Galligan & McGrath §30.75 suggest doubt whether the property arbitrator has jurisdiction in such claims. But

that does not matter for present purposes as, if the arbitrator lacks jurisdiction, a plenary action will avail.

198 See below.

199 The Acquisition of Land (Assessment of Compensation) Act, 1919, as subsequently amended.

200 Day 1 14:25 et seq. and 15:38/39. Lissan Coal v ABP & NTA [2026] IEHC 255

144. It seems to me preferable in these proceedings, at least in the first instance, to assume that no statutory compensation is available to Lissan and, on that assumption, to ask whether there is a constitutional requirement for compensation of Lissan in the circumstances of this case. If not, the constitutionality of any statutory of common law provision for compensation need not be considered, the outcome of any compensation claim need not be in any degree predicted and Lissan can, safely in law, be left to such rights of compensation as it may have.

145. The State, understandably, citing McDaid,201 and Murphy202 asked that I defer determination of any constitutional issues if I held for Lissan on any other ground.203 Given the decision I propose to make, I accept the submission as it relates to constitutionality of statutes. But I do not see that I can fairly escape inquiry whether there is an unjust attack on Lissan’s constitutional rights.

• First, as the State agrees, the case could not be dismissed without such inquiry.

• Second, the principle in Murphy is “subject in any individual case to the overriding consideration of doing justice between the parties.” Also, Murphy was a private law suit inter partes. I accept that the principle applies but it may operate differently in judicial review.

• Third, in truth, the issue of unjust attack on constitutionally-protected property rights for want of compensation, such that Impugned Decisions should be quashed as unlawful, subtends most of Lissan’s case and characterises its complaint. As I have said, if that assertion fails, Lissan can, safely in law, be left to such rights of compensation – tortious or statutory - as it may have.

• Fourth, if I accede to the State’s request and if certiorari issues and an Impugned Decision is remitted to the Commission, and if the Commission again confirms the CPO and/or issues s.51 Approval, it is highly likely that such decision(s) will be again impugned as an unfair attack on Lissan’s constitutional property rights, incurring more litigation and delay. While such considerations did not prevail in the Supreme Court in McDaid, despite the “dilemma” which had faced the High Court, that was a case of the constitutionality of a statute – to which, it seems to me, the necessity of judicial restraint applies with particular force.

• Fifth, if absence of unjust attack on constitutional rights is found becomes unnecessary to consider, in prospect and undesirably, whether and in what precise respect and degree any claim for compensation is likely to succeed before whichever tribunal is to actually empowered by law hear such a claim and whether any such compensation would adequately vindicate relevant constitutional rights

• Sixth, it seems likely to assist the Commission, in considering whether any significant environmental effect of the Scheme on Lissan’s property rights is acceptable, to know whether that effect is or is likely to be an unjust attack on Lissan’s constitutional property rights. That seems especially so where it is in

201 McDaid v Sheehy, [1991] 1 IR 1.

202 Murphy v Roche [1987] IR 106.

203 Day 3 11:20. Lissan Coal v ABP & NTA [2026] IEHC 255

effect agreed that the Scheme will shut the Filling Station. There seems to me to be an analogy here with McCann204 in which Laffoy J, noting Murphy, decided the constitutionality of statutory provisions205 for the enforcement of judgment debts. She did so in part at least against the possibility that on remittal of the case to the district court, whose decision was to be quashed on other grounds, “... the plaintiff's right to liberty will be potentially affected by the very same legislative procedures that gave rise to the 2005 order …” Laffoy J considered that there remained a live controversy “ ... whether … it is open to the credit union in the future to pursue a remedy against the plaintiff which may deprive her of her liberty in the circumstances which then prevail.”

• Seventh, though the consideration would not be decisive of itself, since the trial I have had the considerable assistance of the Supreme Court’s decision in ESB v Good206 as to the constitutional status of injurious affection - on which the parties made supplemental submissions.

146. It is convenient also in this context to consider to the protection of property rights in the European Convention on Human Rights.

ALLEGED INABILITY TO CLAIM COMPENSATION BY REASON OF FAILURE TO LIST IN CPO OR SERVE NOTICE TO TREAT –

DECISION

147. To the approach that Lissan can safely be left to any statutory compensation rights it may have, one exception should be made. Lissan argues that the failure to list them and a right or interest to be acquired from them in the CPO and to serve Notice to Treat on them in due course inhibits their claiming compensation for the loss of such right or interest and so represents an unjust attack on their rights of property. Even assuming a right or interest to be taken from them in the CPO, and a constitutional infirmity in such acquisition without compensation, that argument as their not being listed in the CPO appears to me to be flawed.

148. First, the true logic of the alleged failure to list them and their rights of property in the CPO is not that Lissan is deprived of compensation but that the CPO is ineffective to authorise compulsory acquisition from them of their right or interest in question and that at the appropriate time they could sue to prevent interference with their right or interest. But that they would likely fail in such a suit by reason of statutory authority illustrates that the important issue here as to the public right of way is, as the NTA argues, that very statutory authority - the s.51 Approval, not the CPO. It illustrates that the argument for inclusion of the public right of way in the CPO is misconceived as the only statutory authority the NTA needs to obstruct the public right of way is the s.51 Approval.

204 McCann v Judge of Monaghan District Court [2009] IEHC 276, [2009] 4 IR 200.

205 Enforcement of Court Orders Act 1926 and 1940 – also Order 53 of the District Court Rules 1997.

206 Electricity Supply Board v Good [2025] IESC 27, [2025] 5 JIC 2703 – to which I was referred after trial by the NTA on notice to and without objection

by the other parties. Lissan Coal v ABP & NTA [2026] IEHC 255

149. Second, and as to their depiction of the consequences of the alleged failure to list Lissan as owners, their argument is in any event misconceived. The omission of owners from such lists can occur for various reasons – most obviously where the acquiring authority is unable to identify the owner. Such omission can also, in the real world, occur through simple error. The entitlement of a true owner to compensation does not depend on the unilateral act of the acquiring authority in including or excluding the owner from the list of owners in the Schedule to the CPO. Such a position would represent an unjust attack on the constitutional property rights of such owner. The position can be analysed as to each of the possible legal routes whereby Lissan might seek financial relief.

a. Assuming, contrary to my finding above, Lissan to be persons from whom land has been acquired within the meaning of s.213 PDA 2000, that an owner not listed in the CPO may claim compensation appears from s.79 of the Housing Act 1966. It requires service of notice to treat on “every owner, lessee and occupier of the land”207 - not just those listed in the schedule to the CPO. It empowers acquiring authorities to commit, in reliance on a CPO and by service of notice to treat,208 to the acquisition of particular lands. The constitutionally required quid pro quo of that commitment is that the owner(s) will be entitled to claim compensation in a property arbitration and, on proving their claim and their title, to receive it. Hence the notice to treat – which commits both to acquire (a CPO is merely enabling) and to compensate. While particular rules relate to the owner’s proof of title, no doubt if the acquiring authority, on being called on by a putative owner with an arguable title to do so, refused to serve notice to treat, the putative owner could litigate that issue. Also, the 1845 Act provides for compensation to owners whose interests have been unidentified in error.209 Indeed, counsel for Lissan seemed to accept that its not being listed in the CPO would not prevent its receipt of a Notice to Treat – including for S.63 compensation - though he may have retreated from that acceptance.210

b. The second route to financial relief might be by a claim for damages at common law, in nuisance or public nuisance. Whatever about such an action failing to statutory authority, it could not fail by reason of the Plaintiff’s not being listed in the CPO.

c. However, on the finding I have made – that no acquisition of land will be made from Lissan pursuant to the CPO – its only statutory right to compensation, if any, for its loss of passing trade is a right to s.68 compensation for injurious affection. There may be some doubt as to precisely what is the correct procedure for making such a claim – whether to a property arbitrator or to the court.211 But clearly the right to make a claim for s.68 compensation does not depend on being listed in the CPO, either as the claimant’s name or as to any interest in respect of the devaluation of which the claim is to be made. As the very premise of s.68 compensation is that no land has been acquired from the claimant, so the question of the claimant being listed in the CPO does not arise. As Scott LJ said in

207 Emphasis added.

208 In modern parlance – notice to negotiate.

209 Galligan & McGrath on CPO, §25.50.

210 Day 1 14:34 et seq.

211 Galligan & McGrath on CPO, §30.75. Lissan Coal v ABP & NTA [2026] IEHC 255

Horn,212 and Murray J noted in ESB v Good,213 s.68 compensation “has nothing to do with compulsory acquisition.”

d. For the avoidance of doubt, neither does any content of or omissions from the s.51 Approval affect any capacity in Lissan to make a s.68 compensation claim.

e. Nor does any right to damages in public nuisance depend on being listed in the CPO – though such an action may well fail for other reasons.

150. In short, on the facts of this case, in particular absent a land take from Lissan, and on the findings I have made, that Lissan are not listed as landowners in the CPO does not, in my view, inhibit their claiming any compensation to which they may be entitled. It further follows that, as no such inhibition exists, it cannot render any “attack” on Lissan’s constitutionally-protected property rights (if any) “unjust”.

GROUND 5 – UNJUST ATTACK ON CONSTITUTIONAL & ECHR PROPERTY RIGHTS

GROUND 5 & LISSAN’S POSITION

151. Core Ground 5 of Lissan’s Statement of Grounds asserts that the Impugned Decisions are invalid insofar as they

• provide for interference with Lissan’s right to enjoy the public right of way as a means of access to the Lands for themselves or their invitees and/or customers,

• and/or in so far as they provide for interference with Lissan’s private right of access to and from the Land to and from the public road, without providing for any, reasonable or adequate compensation, by reason of the failure to list Lissan in the CPO schedule as persons affected by the Scheme.

Accordingly, the CPO Confirmation is invalid as a disproportionate interference with and an unjust attack on Lissan’s property rights under Article 40.3.1 and/or Article 43 of the Constitution.214

152. Lissan’s particulars of Core Ground 5 assert

a) its entitlement to seek compensation for ▪ special damage peculiar to Lissan by the interference by the Scheme with the public right of way along Old Cabra Road – which interference will reduce the Filling Station’s customer base by at least 92% - causing very substantial loss to, and likely closure of, the Filling Station and hence

212 Horn v Sunderland Corporation [1941] 2 KB 26, CA.

213 Infra.

214 I have rationalised the wording of this Ground without changing meaning. Lissan Coal v ABP & NTA [2026] IEHC 255

reduction in Site value.

▪ any interference by Scheme with their private right of access to the public right of way along Old Cabra Road.

▪ under either s.63 or s.68 of the 1845 Act.

b) that as the Scheme dooms the Filling Station to fail, it is a disproportionate and unjust attack on Lissan’s constitutionally protected property rights.

c) that the failure to list Lissan in the schedule to the CPO precludes their claiming compensation under s.63 or s.68 of the 1845 Act or otherwise and so the CPO is unlawful.

d) The Commission failed to address this disproportionate and unjust attack, which Lissan’s submissions to the Commission had identified, by modifying the CPO under s.217C(1) PDA 2000 to list Lissan and the Site in the CPO to enable Lissan to pursue a compensation claim.

153. Lissan essentially says that

• The bus gates will all but end their passing trade and ruin their Filling Station business. That is not really disputed.

• The CPO, by failing to list Lissan in the CPO as a person affected, deprived Lissan of its entitlement to claim compensation.

• The Commission's confirmation of the CPO without providing Lissan an entitlement to claim compensation constitutes a disproportionate interference with and unjust attack on Lissan’s constitutional rights under Article 40.3.1 and/or Article 43 of the Constitution and is invalid. In this respect counsel for Lissan agreed that its argument was, and had to be, that it had a private property right in the public right of way - a private right of property, protected by the law of tort, not to be caused uncompensated special damage by interference in the public right of way.215

G5 – OPPOSING POSITIONS

154. The Commission, NTA and State oppose Ground 5, asserting that

a) Ground 5 depends on Lissan’ erroneous assertion that the Impugned Decisions unjustly attack its constitutionally-protected property rights by failing to allow for compensation for interference therewith. No unjust or disproportionate attack arises.

b) The assertion of the right to compensation depends on that same erroneous assertion.

c) The Commission’s conclusions in the S.51 Approval EIA, as to the effect of the Scheme on the Filling

215 Day 3 12:39 et seq. Lissan Coal v ABP & NTA [2026] IEHC 255

Station, do not imply a right to compensation.

d) Also, conclusions in EIA do not determine the planning decision under s.51. The Commission had jurisdiction in its discretion to approve the Scheme regardless of the outcome of the EIA.

e) As to constitutional rights, proper planning and sustainable development is the prior and superior concept – of which the Commission is the judge and on which it made a reasoned decision.

f) The impact of such a decision on property rights is not per se unjust.

g) The Impugned Decisions do not provide for the extinguishment, restriction of or interference with any public right of way over the relevant section of the Old Cabra Road or due to the bus gates.

h) Alternatively any interference in Lissan’s constitutional or other property rights is justified by the exigencies of the common good as they underlie the Scheme generally and, specifically, as the bus gates are important to the Scheme.216

i) Whether Lissan is entitled to compensation is not a matter that goes to the validity of the Impugned Decisions and need not be determined in these proceedings.

j) The Commission was not obliged to exercise its power under s.217C(1) PDA 2000. Inter alia the Commission was entitled to have regard to the NTA’s view that the bus gates are critical and fundamental to the Scheme217 and the NTA’s reason for not seeking, by the CPO, to take land for the Scheme from the Site.218

155. Specifically, the State asserts that Lissan’s case is unclear as to the issue of compensation – particularly as no land is to be taken from Lissan:

a) Lissan’s pleaded case219 asserts their right to compensation under s.63 of the 1845 Act. Lissan’s submissions220 assert such a right by reference to s.231(2) PDA 2000.

b) Neither s.63 nor s.68 of the 1845 Act avails Lissan:

▪ Lissan has no right to s.63 Compensation as no land is to be taken from them under the CPO - Chadwick & Goff.221 ▪ Lissan has no right to s.68 Compensation as a claim would fail the “McCarthy/Wildtree Rules”.222

216 Citing the NTA Observations on the Proposed Scheme Submissions and CPO Objections (January 2023) §4.57: “The options assessment completed

for the Proposed Scheme demonstrates the criticality of the inclusion of necessary Bus Gates on Old Cabra Road, at Prussia Street /Manor Street

/Aughrim Street junction and at Blackhall Place and these three bus gates are fundamental to the entire CBC Scheme to achieve its objectives”.

217 See fn above.

218 Citing the NTA Observations on the Proposed Scheme Submissions and CPO Objections (January 2023).

219 §65 Statement of Grounds.

220 §§36-41.

221 Chadwick and Goff v Fingal CC [2007] IESC 4; [2008] 3 IR 66.

222 Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243; Wildtree Hotels Limited v. Harrow London Borough Council [1998] 3 All ER 638.

Lissan Coal v ABP & NTA [2026] IEHC 255

c) Specifically, by the “McCarthy/Wildtree Rules”, s.68 compensation is payable only if the damage for which compensation is allegedly payable ▪ would have been actionable but for the statutory powers. Lissan has identified no authority to the effect that that the implementation of traffic management measures by a road authority would have been actionable but for the statutory powers. Smyth is cited. 223 ▪ is to the land itself – not personal inconvenience or damage to trade only. Any damage here is damage to trade and not to the land.

▪ arises from the execution of the works and not from their subsequent use: Brand224 Here the bus gates merely involve the erection of signage and the placement of road markings. Even these constitute “works” for the purposes of the rule any damage is caused by their operation, not their execution.

G5 - INTRODUCTION & OVERALL SIGNIFICANCE OF CONSTITUTIONAL ISSUES

156. I have explained above

• Why I consider it appropriate to decide the question of an unjust attack on Lissan’s Constitutional property rights.

• That I do not consider that Lissan’s absence and the absence of the Site from the CPO list shuts it out from any compensation to which it may be entitled.

G5 - FRONTAGER’S PRIVATE RIGHT OF ACCESS TO HIGHWAY & PUBLIC RIGHT OF PASSAGE ON HIGHWAY

157. I have presaged this consideration earlier but as they lie at the root of the dispute, it seem to me useful to first describe the underlying substantive rights at stake as they concern Lissan and the relationship of the Site and its business to the Old Cabra Road.

158. While the right is much regulated by or under legislation,225 at common law the owner of land

adjoining the highway (a “frontager” – such as Lissan) has a private right, appurtenant to the land, of access

to and from the highway from any part of his land contiguous therewith for the frontager and its visitors.226 Importantly, the frontager’s right is distinct from the public's right to pass along the highway. As Kenny J said in Holland,227 that right “entitles him to access from the part of the public road immediately in front of his

223 Smyth v Railway Procurement Agency & Ors [2010] IEHC 290.

224 Hammersmith and City Rly Co v Brand (1869) LR 4 HL 171, [1861–73] All ER Rep 60.

225 For example, the planning code.

226 Nolan §22.85 – see footnote below.

227 Holland v Dublin County Council, [1979] 113 I.L.T.R 1 (Kenny J. High Court). The held that the construction of the median barrier of the Naas dual

carriageway did not interfere with the Plaintiff’s right of access as “This right does not entitle the adjoining occupier to access to all parts of the public

road including that on the far side from his property: it entitles him to access from the part of the public road immediately in front of his property to his

premises and from his premises to that part of the public road.” Lissan Coal v ABP & NTA [2026] IEHC 255

property to his premises and from his premises to that part of the public road” but “it is a right to get on to the road and when the owner has done this, he has the public right of passing only.” Inter alia, Kenny J - as does Buckley228 - cites Chaplin,229 in which a frontager sought to injunct a council’s erection of a street light as interfering with his alleged private right to load his vans parked on the highway. It was held that Chaplin had

“a special and individual interest in the public right to this portion of the highway and they are entitled to sue … in respect of that individual interest; but the right which they seek to exercise is not a private right, but a public right. …….. A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway …… But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right.”230

159. In Chaplin, a case was cited,231 as to a wharf on a navigable river – which for present purposes can be thought of as the legal equivalent of a highway – inter alia as follows:

“The right of a man to step from his own land on to a highway is something quite different from the public right of using the highway.”

“’The wharf will not be as readily and easily approached, and perhaps not at all by the same route;

but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access.’ There you have the two things contrasted - the right of stepping from the private property on to the highway, or from the highway on to the private property, and the right of use of the highway in proximity to the private property. One is a private right, and the other is a public right.” 232

160. So, where a property is not obstructed in its access to the highway, but is otherwise discommoded in its use of the highway – for example by a more distant obstruction of the highway itself - that is not an interference with the frontager’s private right of access. It may, or may not, be a public nuisance for which the frontager has a right to damages – but as a member of the public, not as frontager.

161. On the present facts, Lissan’s private right of access to the highway is not at issue – save perhaps for a temporary interference in the construction phase of the Scheme. Its access between the Site and the Old Cabra Road will remain entirely unimpeded by the Scheme in operation. Lissan will remain able to step or drive, or have others step or drive, from their Site onto the Old Cabra Road and from it onto the Site.

228 Buckley - The Law of Negligence and Nuisance (Common Law Series) §14.12 fn3.

229 Chaplin (W H) & Co Ltd v Westminster Corp’n [1901] 2 Ch 329.

230 Emphases added.

231 Attorney-General v. Thames Conservators 1 H. & M. 1.

232 Emphases added. Lissan Coal v ABP & NTA [2026] IEHC 255

162. Ground 6 includes a plea which bears on the issue of the frontager’s right of access and egress. It

pleads that the Inspector's conclusion that the Filling Station can “still be accessed and maintain operations,”

failed to have regard to Article 32 of the Road Traffic and Parking Regulations, 1997 which, Lissan pleads, prohibits private motor vehicles from using the 24-hour bus lanes on the Old Cabra Road as a means of access to or egress from the Filling Station. Article 32(2)[a] provides that a person shall not enter a bus lane with a vehicle other than a bus or a pedal cycle during the period of operation of the bus lane.233 However, Article 32(5)[a] provides that Article 32(2) does not apply to a vehicle crossing a bus lane solely for the purpose of entering or leaving premises or property adjacent to such a bus lane. There is clearly nothing in this plea. It is puzzling that it was made.

163. The starting points, therefore, are that

• any interest in land to be acquired from Lissan exists, if at all, in virtue of their relationship to the public right of way along Old Cabra Road.

• any common law right of action in Lissan by reason of the effect of the bus gates on the public right of way along Old Cabra Road is in public nuisance only - not in private nuisance.

Interferences with Frontager’s Rights Without Compensation

164. However, though the Scheme will not, in fact, interfere with Lissan’s right of access, as a frontager, to Old Cabra Road, before moving to the issue of public nuisance, it is useful to consider the position where an uncompensated interference occurs in a frontager’s right of access to the highway. I think that useful as the frontager’s private right is, in a real sense, more central to and characteristic of the ownership of lands adjacent the highway than is any right to the custom of the passing trade of the highway – the latter being an asserted right to the benefit of the exercise by third parties of their public right of passage on the highway. The landowner’s capacity to avail of the custom of passing trade is dependent on the frontager’s right of access to the highway but the converse is far from the case. Accordingly if uncompensated interference with the frontager’s right of access is permissible, it may be that, a fortiori, uncompensated interference with passing trade is permissible.

233 The article was amended in 2024 to allow access to mopeds and electric scooters. Lissan Coal v ABP & NTA [2026] IEHC 255

165. Baker J in Daly234 noted the suggestion that a local authority may have “power “to interfere with the rights of adjacent property owners” even without provision for compensation.”235 Keane236 cited Edgington237 when stating that local authorities may interfere with public roads, and thereby with frontagers’ rights, where so authorised by a statute on its proper construction - even though there is no provision for compensation. English law as to interference without compensation is set in a different constitutional context. Nonetheless, Cusack238 is of interest as a UKSC239 consideration of the absence of compensation in such cases by reference to the protection of property rights by Article 1 to the First Protocol of the ECHR (“A1P1”).240 Mr Cusack, a solicitor who practised from his home and whose staff and customers parked in what had been his front garden, sought an injunction to restrain the local council’s erection, pursuant to statutory powers, of barriers to prevent cars driving from the vehicular carriageway of the public road, over the adjacent public footpath, to his carpark and from backing out onto the road.241 The council alleged danger to pedestrians and motorists.

166. The UKSC noted that Mr Cusack had a frontager’s common law right of access without restriction from any part of the property. However,242 such rights had “been much circumscribed by statute” such that it was well-settled that a highway authority exercising statutory powers can improve or maintain a street or highway, even though by so doing it interferes with or obstructs frontagers' rights of access to the highway. And while many such powers were subject to payment of compensation, there is no general rule to that effect. The right to compensation had been held to be a matter of law: “If they can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it; and if they have to pay compensation, they must pay according to the proper legal measure…”243 Cusack considered whether that law still held good in light of the Human Rights Act 1998 – which applied the ECHR in English law. Lord Carnworth considered that in 2012 Depalle244 had summarised the Strasbourg caselaw from the leading case of Sporrong245 - to the effect that

• A1P1 o first, lays down the general principle of peaceful enjoyment of property, o second, subjects deprivation246 of possessions to certain conditions and o third, recognises that the Contracting States may, inter alia, control the use247 of property in

234 Daly v Kilronan Windfarm [2017] IEHC 308 §98. The proposition was attributed to Butler, Keane on Local Government (2nd Edition, 2003) p.57. But

the relevant content does not appear there. It does appear in the 1982 edition at p.75.

235 S.52 of the Roads Act 1993 provides for compensation for damage suffered where direct access from any land to a public road or to any land from

a public road is prohibited, closed, stopped up, removed, altered, diverted or restricted by a road “scheme”. However, by s.2 of the Roads Act 1993,

"scheme" has the meaning assigned to it by s.47(1) and s.47(1) limits the concept to schemes for motorway’s, service areas, busways and protected

roads. So s.52 does not apply in the present case.

236 Local Government in Ireland, 1st Ed’n (1982) p75.

237 Edgington, Bishop and Withey v Swindon Corporation [1939] 1 KB 86.

238 Cusack v Harrow LBC, [2013] UKSC 40, [2013] H.R.L.R. 26.

239 Supreme Court of the United Kingdom.

240 Article 1 reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions

except in the public interest and subject to the conditions provided for by law … The preceding provisions shall not, however, in any way impair the

right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the

payment of taxes or other contributions or penalties.”

241 He practiced as a solicitor from his home. He had turned his former front garden into car park for staff and clients.

242 Citing Lord Radcliffe in Ching Garage Ltd v Chingford Corporation [1961] 1 W.L.R. 470.

243 Lord Radcliffe in Ching Garage.

244 Depalle v France (2012) 54 E.H.R.R. 17, ECTHR Grand Chamber.

245 Sporrong and Lönnroth v Sweden (1983) 5 E.H.R.R. 35.

246 My emphasis.

247 My emphasis. Lissan Coal v ABP & NTA [2026] IEHC 255

accordance with the general interest.

• The second and third rules, permitting interference with the peaceful enjoyment248 of property, must be construed in the light of the general principle laid down in the first rule.

• Since the ECHR is intended to guarantee rights that are ‘practical and effective’, the question whether there has been a deprivation of possessions within the second rule is one of factual reality and substance, not of form. In that light, Lord Carnworth noted the “material distinction between the second rule, relating to deprivation of possessions, and the third … relating to control of the use of property.”

167. Mr Cusack argued that the Council’s removal of his common law right of access to the highway was deprivation of a possession within the second rule and cited James249 to the effect that, on such deprivation, absence of a right to compensation will be justified only exceptionally. Lord Carnworth saw “no basis for his reliance on the second rule. Mr Cusack has not been deprived of any property.” He held that the case fell “clearly within the third rule as a control of his property”.250 Lord Neuberger said that “Though there is no general right to compensation where the third rule applies, that is not, I accept, the end of the matter.” He asked whether the position was arbitrary or irrational, and said that “A1P1 does not carry with it a general rule that, where the state seeks to control the use of property, and could do so under two different provisions, which have different consequences in terms of compensation, it is obliged to invoke the provision which carries some (or greater) compensation.”251 Lord Carnworth252 said that, although not express in A1P1, claims under any of the three rules are examined under four heads:

• (i) whether there was an interference with the peaceful enjoyment of ‘possessions’;

• (ii) whether the interference was ‘in the general interest’;

• (iii) whether the interference was ‘provided for by law’; and

• (iv) proportionality of the interference.

168. Lord Carnworth considered that the question of proportionality was “whether the interference with the applicants' right to peaceful enjoyment of their possessions struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual's fundamental rights, or whether it imposed a disproportionate and excessive burden on them”. Further, the

“issue of proportionality is not hard-edged, but requires a broad judgment as to where the “fair balance” lies”

and “in the general field of land development and town planning … the state is allowed a wide margin of appreciation.” Lord Carnworth considered that the ECHR “may require some qualification to the narrow approach established by earlier authorities” by requiring a consideration whether “a fair balance was … struck between the competing general and individual interests.” However, in Mr Cusack’s case he considered

248 My emphasis.

249 James v United Kingdom (1983) 5 E.H.R.R. 123.

250 Lord Neuberger cited Lewison L.J. in the Court of Appeal: “…… the council is not proposing to rob Mr Cusack of all access to the highway. It is

merely proposing to block vehicular access to the highway; and even then, perhaps only access by four wheeled vehicles. So even on that basis he is

not deprived of the right of access to the highway: the right is being controlled so that it can only be exercised in a particular way.”

251 Mr Cusack argued that instead of invoking, to justify the works, a statutory power which did not provide for compensation the Council had to

invoke another power which did.

252 Citing Bugajny v Poland Unreported November 6, 2007 ECtHR and Thomas v Bridgend CBC [2012] Q.B. 512. Lissan Coal v ABP & NTA [2026] IEHC 255

that the Council’s proposed use of its power to control private access in the public interest, was neither an abuse of the council's powers nor beyond the discretion allowed by the Convention.

169. In my view, the foregoing appreciation of the acceptability, having regard to the ECHR, of uncompensated interference, in the public interest, in the frontager’s private right of access to and from the highway is capable of informing, at least in some degree, the acceptability of uncompensated interference, in the public interest, in a frontager’s passing trade which avails of the public right of way.

G5 - PUBLIC NUISANCE

General

170. While I have already adverted to some of what follows, as the significance of Lissan’s right to sue in public nuisance (leaving aside pro tem the question of statutory authority) is relevant both to their characterisation of their alleged proprietary right in land the compulsory loss of which they assert and to their possibility of compensation for that loss, it is necessary to consider the complex law of public nuisance on the highway/public road/public right of way.253 Most of the cases are English.

171. It may help to prefigure this discussion by observing the similarity and close link between the concepts of public nuisance and that of “injurious affection” as they bear on obstructions of the highway, such that the constitutionality of the occurrence of each without compensation appears to raise similar issues.

Public & Private Nuisance254

172. The law of nuisance encompasses two distinct legal concepts. The terminological resemblance tends to confuse. So does the fact some nuisances are both private and public and some are solely public.255 But private and public nuisance are distinct and the rights protected by them differ. Learning in either area is not automatically applicable in the other.256 The starting point is that whereas private nuisance is a tort, public

253 For present purposes these three terms can be used interchangeably.

254 Most of what follows here is taken from Nolan, The Law of Tort (Common Law Series) > Chapter 22 Nuisance (Donal Nolan) and from Buckley - The

Law of Negligence and Nuisance (Common Law Series) > Part four Land use liability in negligence and nuisance > Chapter 14 Public Nuisance. As will be

seen, many of the cases cited are old. I will add here references to the treatment of public nuisance by McMahon & Binchy on Torts, 4th Ed’n, 2013.

255 Buckley §14.2. Public nuisances may be divided into two categories. The first category overlaps with private nuisance and consists of those cases

which satisfy the requirements of that tort, but affect a much larger number of people than is usual in a private nuisance situation. The second category

consists of cases which involve interference with the safety or convenience of members of the public generally, but do not satisfy the basic

requirement for an action in private nuisance of interference with an individual's enjoyment of his own land1. The majority of cases in the second

category concern use of the highway. In some cases in which, on particular facts, plaintiffs have recovered for interference with the enjoyment of their

land caused by the defendant's use of the highway, the court has indicated that the cause of action could be regarded as being in either public or

private nuisance.

256 Brodie v Singleton Shire Council (2001) 206 CLR 512 at [257]; Re Corby Group Litigation [2008] EWCA Civ 463, [2009] 4 All ER 44 .

Lissan Coal v ABP & NTA [2026] IEHC 255

nuisance257 is a crime at common law.258 However, though a crime, public nuisance is not often prosecuted.

It is more relevant in practice in that it may give rise to liability in tort at the civil suit of a person who proves

that thereby (s)he suffered particular (or “special”) damage, over and above that suffered by the public generally. The requirement of particular damage, imposed to avoid multiplicity of suits,259 is resonant in this case given the ubiquity of damage to trade by reason of changes in the roads system.260 That is so even if this is considered an extreme, though I suspect far from unique, case of the destruction of a business. Buckley261 as to loss of profit/trade cases, cites Ricket262 and Wildtree263 as to fear of excessive and uncontrollable liability on defendants.

173. The action in tort for public nuisance seems to be anomalous. Buckley doubts “whether there ever was an independent 'tort of public nuisance', as distinct from civil remedies notionally presupposed on criminal liability. In practice, however, a body of case law developed imposing civil liability without close consideration of whether the circumstances actually constituted a crime.”264 So, while the liability in tort exists, the tort itself may not exist and even the crime which underlies the liability need not be proved! Indeed, Buckley attributes liability in public nuisance, where it does not overlap with private nuisance, to “the anomalous result of an historical accident”.265 These observations are somewhat theoretical and are generally of little practical consequence. But in the present case they may shed light on the difficulty in pinning down the legal quality of what right it is Lissan says they will have lost once the bus gates are operational.

174. Whereas private nuisance is confined to damage to property or to amenity in the occupation of property, public nuisance is not. As the plaintiff in public nuisance sues as a member of the public his/her occupation of land is in principle inessential to the liability - though on particular facts, as here, it may be present and relevant. Often, in the case of public nuisance on the highway, it is not. For example, a plaintiff can recover in public nuisance for personal injury caused by an obstruction on the highway far distant from and unconnected with any lands s(he) may occupy. Buckley suggests that “A confusion between easements entitling one landowner to cross another's land, and the right of everyone to use the public highway, seems to have been responsible for this extension into a wider field of a kind of tortious liability really appropriate only for interference with the enjoyment of land.”266 As I have said267 a public right of way is not an easement and is not akin to a private right of way. It is, likely, a public right sui generis268 of which all may avail.

257 Also, if less often, called “common nuisance”.

258 In the UK the Police, Crime, Sentencing and Courts Act 2022 replaced the common law with a statutory offence.

259 And as 'the public and criminal jurisdiction of the court is not to be usurped in a civil proceeding'- Stein v Gonzales (1984) 14 DLR (4th) 263,

McLachlin J. McMahon & Binchy §24.04 – though the authors criticise the rule itself.

260 The obvious example is country towns bypassed by motorways.

261 Buckley - The Law of Negligence and Nuisance (Common Law Series) §14.16.

262 Ricket v Metropolitan Rly Co (1867) LR 2 HL 175 at 188 (Lord Chelmsford LC) and 199 (Lord Cranworth).

263 Wildtree Hotels v Harrow London BC [2000] 3 All ER 289, HL.

264 Buckley §14.2.

265 Buckley §14.2.

266 Buckley §14.7.

267 Citing Rangeley v Midland Railway Co (1868) LR 3 Ch App 306.

268 Citing Sauvain, Highways 6th Ed’n §1-29. Lissan Coal v ABP & NTA [2026] IEHC 255

175. A public nuisance is a wrong to the public as a whole. A core element of it is effect on the community

- a significant section of the public - rather than simply on individuals.269 Common injury to members of the public by interference with rights enjoyed by them as such is necessary to public nuisance.270 Indeed, an act which materially obstructs271 a class of the public in the exercise or enjoyment of rights common to all citizens is a public nuisance – even if that act is otherwise lawful.

176. The origins of public nuisance lie in interferences with the public right of way along highways.272 Where (as in Lissan’s case) the obstruction does not affect the access to the highway from the claimant's land, but rather affects progress (indeed, by third parties – customers) along the highway after the highway is reached, public nuisance alone will lie – there is no action in private nuisance.

177. Potter LJ described public nuisance on the highway simply and well in Ocean Leisure.273 He said

• “It is a public nuisance to obstruct or hinder the free passage of the public along the highway”. In my view, the word “hinder” is useful here. It conveys that to be a public nuisance the obstruction need not block or prevent passage, though no doubt, the hindrance must be substantial.

• That proposition applied “save to the extent that the parking of vehicles or the creation of other obstructions which do not cause danger to other users of the highway may properly be regarded as reasonable incidents of such passage.” As those who wait in rush hour are very aware, every lawful passage has an opportunity cost.

• Save for that proviso, the general rule is that interference in substantial measure and over a substantial period of time with the public right to use of the highway is a public nuisance.

Particular Damage in Public Nuisance on the Highway - Loss of Custom/Passing Trade – Moto, Wilkes, Gravesham, Colour Quest & Vasiliou

178. As to the requirement of particular damage in public nuisance by obstruction of the highway,

a) The damage must be “particular, direct, and substantial”. While proximity of the obstruction to the plaintiff’s property may, on the facts of a particular case, be a significant factor in deciding whether the damage is sufficiently 'direct', such proximity is not a test as such.274

b) Though damage must be particular it need not be exclusive. That others suffer similar particular damage does not prevent recovery. But “It is not easy to find a clear or consistent dividing line in the

269 So, for example, in R v Rimmington [2005] UKHL 63, [2006] 1 AC 459, [2006] 2 All ER 257 the claim in public nuisance failed as the hate mail was

sent to multiple individuals as part of a campaign against them as individuals and not against the public.

270 R v Goldstein [2005] UKHL 63, per lord Bingham; Wildtree Hotels Ltd v Harrow London Borough Council [2000] 3 All ER 289 at 294, per Lord

Hoffmann, Colour Quest Ltd v Total Downstream UK plc [2009] EWHC 540 (Comm), [2009] 2 Lloyd's Rep 1 at [428], per David Steel J.

271 Other means of public nuisances are irrelevant here.

272 Which include navigable rivers.

273 Ocean Leisure Ltd v Westminster City Council, [2004] EWCA Civ 970, [2005] 1 P. & C.R. 25.

274 Moto Hospitality v Secretary of State for Transport [2007] EWCA Civ 764, [2008] 1 WLR 2822, [2008] 2 All ER 718. §65.

Lissan Coal v ABP & NTA [2026] IEHC 255

cases between particular damage, which founds a cause of action, and damage shared with the public in general, which does not." 275 As I have said, while Lissan’s damage may well be particular, having the validity of a CPO depend on its correct prospective identification of the side of that dividing line on which each of hundreds or more of properties lie would be to have a hard case make bad law.

c) While neither delay nor inconvenience suffices per se as particular damage, it does suffice if it causes pecuniary loss. For example, a merchant who had to pay for his goods to be carried overland after the defendant's barges blocked a navigable river recovered damages276 – as did a farmer obliged to pay for his longer and more circuitous weekly car trip to market in Ballymena after a shorter road which he had habitually taken on foot was obstructed.277

d) Particular damage exists where property is damaged or where, less directly, the claimant is deprived of the opportunity to earn a livelihood.278

e) Where others are inconvenienced by the public nuisance and as a result the plaintiff suffers loss, (s)he may be entitled to sue.279 In Wilkes280 loss of custom to a bookshop shop on a closed road sufficed as particular damage for recovery in public nuisance. Similarly, damages are recoverable in public nuisance where the obstruction of the highway affects the value of a frontager's property.281

179. Nolan282 and McMahon & Binchy283 cite Colour Quest.284 Many of the principles of public nuisance set out above were set out as they related to the obstruction of public use of the highways during the operation of an exclusion zone after a major explosion at the Buncefield Oil Depot. David Steel J observed:

a) Public and private nuisances are not two species of the same genus.285 But claims in public nuisance and private nuisance on the same facts are not mutually exclusive.

b) As to the requirement of effect on the community - a significant section of the public – PYA Quarries286 had held that

“The sphere of the nuisance may be described generally as 'the neighbourhood'; but the question

275 Moto Hospitality v Secretary of State for Transport [2007] EWCA Civ 764, [2008] 1 WLR 2822, [2008] 2 All ER 718. §72.

276 Rose v Miles (1815) 4 M & S 101, 105 ER 773.

277 Smith v Wilson [1903] 2 IR 45. Cited in McMahon & Binchy §24.07.

278 McMahon & Binchy §24.06.

279 McMahon & Binchy §24.08.

280 Wilkes v Hungerford Market Co (1835) 2 Bing NC 281, 132 ER 110. See also Iveson v Moore (1699) 1 Ld Raym 486, 91 ER 1224.

281 Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 (destruction of draw-dock that opened into the Thames nearby); Medcalf v R

Strawbridge Ltd [1937] 2 All ER 393 (damage to road surface caused by skid-pan on defendant's car). See also Caledonian Rly Co v Walker's Trustees

(1882) 7 App Cas 259.

282 The Law of Tort (Common Law Series) > Chapter 22 Nuisance (Donal Nolan). §22.90.

283 Torts, 4th Ed’n 2013.

284 Colour Quest v Total Downstream UK, [2009] EWHC 540 (Comm), [2009] All ER (D) 311 (Mar) §422 et seq. The case related to a major explosion at

the Buncefield Oil Storage Depot at Hemel Hempstead, Hertfordshire by which damage was caused to many adjacent properties. The issue of public

nuisance was only one of many considered.

285 Re Corby Group Litigation [2008] EWCA Civ 463, [2009] 4 All ER 44 and Salmond and Heuston on the Law of Torts (21st edition 1986)

286 AG v PYA Quarries [1957] 2 QB 169, [1957] 1 All ER 894, 55 LGR 208 (Denning LJ). Lissan Coal v ABP & NTA [2026] IEHC 255

whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is …. sufficient to show that a representative cross-section of the class has been so affected ...”

c) It follows287 that whilst a private owner's right to the enjoyment of his own land is not a right enjoyed by him in common with other members of the public, nonetheless any illegitimate interference, being the very same interference contemporaneously suffered by other members of the public, constitutes a common injury satisfying the public nature of a public nuisance.

d) In public nuisance a claimant must establish a loss which was particular, substantial and direct, over and above that suffered by the public at large. That loss might be economic loss. But the caselaw as to what constitutes particular damage was by no means consistent over time.288

e) On the facts in Colour Quest, the defendants’ denial of liability where the damage did not result from interference with the claimant's own use of the public highway was rejected. On a lengthy review of conflicting caselaw289 David Steel J ▪ considered Wilkes290 to remain good law. He read McCarthy291 as upholding Wilkes in that while loss of custom would not, per se, provide a basis for s.68 compensation, it might support recovery in public nuisance at common law.292 ▪ cited Gravesham293 as recognising “ample authority … that a trader with premises adjoining the highway who suffers damage to his business by reason of unlawful obstruction of the highway is entitled to recover such special damage” for public nuisance.

▪ so, held that liability in public nuisance extended to loss of trade by obstruction of customers'

right of free passage to the premises.

180. In Gravesham, one issue was employees’ access by a franchise ferry across the Thames294 to the plaintiffs’ business premises. Slade J saw “no difference in principle between the case where the relevant interference with a business consists of the obstruction of its customers and the case where it consists of obstruction of its employees.” He considered the cases295 and held Wilkes296 good law that where a plaintiff has business premises near a highway and the highway is unlawfully obstructed and he suffers loss by the

287 Citing also Corby Group Litigation v Corby Borough Council [2008] EWCA Civ 463, [2009] 2 WLR 609, [2008] BLR 411.

288 §443 et seq. .

289 §436 et seq.

290 Supra. Loss of custom to a shop on a closed road sufficed as particular to recover damages for public nuisance.

291 Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243, 38 JP 820, 43 LJCP 385.

292 David Steel J cited McCarthy to the effect that “A mere personal obstruction or inconvenience, or a damage occasioned to a man's trade or the

goodwill of his business, although of such a nature that but for the Act of Parliament it might have been the subject of an action for damages, will not

entitle the injured party to compensation under it.”

293 Gravesham Borough Council v British Railways [1978] Ch 379 at p 398, [1978] 3 All ER 853, 76 LGR 202. Gravesham was a case as to the peculiar

status of a franchise ferry - “A public ferry is a public highway of a special description, whose termini must be in places where the public have rights” -

and rights of action in public nuisance against the franchisee for failure to operate it on proof of particular/special, direct and substantial damage to the

Plaintiff.

294 Gravesham was a case as to the peculiar status of a franchise ferry - “A public ferry is a public highway of a special description, whose termini must

be in places where the public have rights” - and rights of action in public nuisance against the franchisee for failure to operate it on proof of

particular/special, direct and substantial damage to the Plaintiff.

295 Benjamin v. Storr (1874) L.R. 9 C.P. 400. Wilkes v. Hungerford Market Co. (1835) 2 Bing N.C. 281, Ricket v. Metropolitan Railway Co. (1867) L.R. 2

H.L. 175, H.L.(E.). Blundy Clark & Co. Ltd. v. London and North Eastern Railway Co. [1931] 2 K.B. 334, C.A.

296 Supra. Loss of custom to a shop on a closed road sufficed as particular to recover damages for public nuisance. Lissan Coal v ABP & NTA [2026] IEHC 255

diminution of his business, he can recover damages in public nuisance as a person who has suffered special or peculiar damage beyond that suffered by other members of the public wanting to use the highway.

181. In Vasiliou297 the applicant to quash a “stopping up” order298 – extinguishing a public highway - complained that while the order would not prevent any members of the public who wished to eat at his restaurant from doing so, nor would they be subjected to a significantly less convenient access route, he would lose the passing trade which was 60%-70% of his trade and his business would likely fail. The legal issue for the Court of Appeal was whether the Secretary of State had wrongly disregarded these facts as irrelevant and turned on statutory interpretation of UK statutes irrelevant here. Mr Vasiliou succeeded. The court observed that

• Absent an order stopping up or diverting a highway, obstruction of a highway is a criminal offence. It is also a public nuisance. An individual who sustains particular damage and beyond the inconvenience suffered by him in common with the public at large may recover damages for the loss caused to him by the wrongful obstruction.

• Citing Gravesham,299 the court said that “a person has a right of action if the highway is obstructed and as a result prospective customers are diverted from his place of business and in consequence he suffers loss.” “A person in the position of … Mr Vasiliou …. has a well-recognised cause of action, on one or other or both of (private and public nuisance), against anybody who obstructs a highway and thereby, as a direct consequence, causes financial loss to a business being carried on land adjoining the highway.”

• But once a stopping-up order has been made those existing legal rights are lost – without provision for compensation.

• Such extinguishment or expropriation should not take place in the exercise of a discretionary power without the Secretary of State taking into account the direct effects thereof.

182. Vasiliou seems to me notable that in that

• the facts are notably similar to those of the present case.

• the plaintiff would not be compensated was an apparently acceptable premise of the case. Though one must note the different constitutional context in which statute is unassailable.

297 Vasiliou v Secretary of State for Transport, [1991] 2 All ER 77, 61 P & CR 507, [1991] 1 PLR 39, (1990) Times, 16 July

298 under section 209 of the Town and Country Planning Act 1971.

299 Gravesham Borough Council v British Railways [1978] Ch 379 at p 398, [1978] 3 All ER 853, 76 LGR 202. Lissan Coal v ABP & NTA [2026] IEHC 255

Will Lissan suffer Special Damage sounding in Public Nuisance?

183. On the basis of the review just conducted I think it suffices to simply, assuming a public nuisance, Lissan will suffer, by the loss of its passing trade, special damage sounding damages. But, as will be seen, that assumption of a public nuisance is a problem for it given statutory authority for the bus gates.

A Philosophical Difference – Whether Costs should be Internalised?

184. The cases canvassed by Buckley and by Nolan strike as difficult to reconcile. This may be primarily due to philosophical differences between the judges and over time going back at least to the Victorian railway cases – differences noted in Wildtree and said by Buckley300 to be apparent as between the judges in Transco.301 In that case, Lords Hoffmann and Walker thought costs of public or private projects, including those they impose on others, should be “internalised” to them. That is to say, the developer should bear, generally, all the costs it imposes – including those imposed on others. They cautioned against an 'inclination' in the court to attempt 'some utilitarian balancing of general good against individual risk'. On the other hand, Lord Scott was apparently content that 'members of the public are expected to put up with any adverse effects … provided always that it is carried out with due care' - on the ground that 'use of the land for carrying on the activity cannot be characterised as unreasonable if it has been authorised or required by statute'.

185. Murray J in ESB v Good302 cites the Employment Equality Bill case303 for the essentially “internalist” view that “the imposition upon one section of the community of the cost of achieving particular social objectives – however desirable – breaches [constitutional] guarantees”. However, and as will be seen when considering the constitutional context, Murray J was far from considering this an absolute view. More specifically, Murray J saw the idiosyncratic interpretation in the Victorian caselaw of s.68 of the 1845 Act, providing compensation for injurious affection, and the McCarthy/Wildtree principles on which s.68 is applied, as the working out of those philosophical and political differences and competing economic interests - ameliorating the effect of statutory authorisation of what would otherwise be nuisance by providing compensation for injurious affection in limited cases.

Do Bus Gates Obstruct the Highway within the Meaning of Public Nuisance?

186. Whether the bus gates obstruct the highway for the purpose of the law of public nuisance is in the first instance a question of fact.

300 §23.13.

301 Transco v Stockport Metropolitan Borough Council [2003] 3 WLR 1467.

302 Electricity Supply Board v Good & Ors [2025] IESC 27, Murray J §82(i) & (v).

303 Re Article 26 and the Employment Equality Bill 1996 [1997] 1 IR 321. Lissan Coal v ABP & NTA [2026] IEHC 255

187. It seems to me that the first part of the analysis is to ask whether if a brave and foolish private person erected physical gates at the locations of the intended bus gates and operated them so as to prevent passage through them of all motor vehicular traffic other than buses, public service vehicles and bicycles (and thereby as it happens, over 90% of the pre-existing traffic), such a private person would have committed a public nuisance by obstructing the highway? The question answers itself but, just in case, I will say yes.

188. The next question is whether it is the means or the effect that matters: whether it would equally be an obstruction to procure a similar effect by non-physical means such as signage or road markings rather than a physical gate? While the likelihood of practical success of private person erecting such signs in excluding traffic would be far lower, if likely at all, I cannot see that this consideration alters the principle that a non-physical obstruction, if effective, would be a public nuisance. More generally, for the drivers of the 90% of traffic who will be excluded from the stretch of road in question in this case and forced to detour, the obstructing effect is the same whether the gates are physical barriers across the carriageway or are notional gates effected by signage. In this context, a sign is the legal equivalent of a barrier across the road raised only for buses and those few others entitled to use the bus gate. It is difficult to see how calling the bus gate a regulatory or traffic management measure prevents it from being an obstruction, restriction or interference – even if a lawful one.

189. In my view, this analysis shows that what sets the proposed bus gates apart is not that they are not an “obstruction” of the public highway such as could constitute a public nuisance – they are such an obstruction. As the leap involved is minimal, I have formed a similar view as to whether a bus gate is a “restriction of or interference with” a public right of way as contemplated in the CPO. What sets the Scheme’s bus gates apart is that the signs effecting the obstruction have the force of law but for which a public nuisance would exist.

Statutory Authority – Introduction

190. Having found that that the bus gate signs effecting the obstruction of the public highway have the force of law but for which a public nuisance would exist, it is necessary to consider more precisely what that means. Specifically, does statutory authority operate to prevent the occurrence of a public nuisance or does it operate as a defence to a public nuisance – conferring an immunity from suit?

191. As to statutory authority of what would otherwise be nuisance, Nolan appears to regard the law as equally applicable to public and private nuisance. No argument otherwise was made to me and it strikes me that in practice to exclude its application to public nuisance, given the spheres of activity of statutory public actors, would be, at very least, counterintuitive.

Lissan Coal v ABP & NTA [2026] IEHC 255

192. Further, all parties appear to have accepted that either or both of the Impugned Decisions of the Commission amount to statutory authority, as that term is used in the law of nuisance, to effect the bus gates. So, I need not consider the potentially difficult issues of any distinction in this regard between duties and powers or between authorisation by statute as opposed to authorisation by the Commission pursuant to statute (in this case as a matter of discretion and in light of an EIA) or whether, and if so to what extent, Weir is correct in asserting that “administrators cannot authorise torts” (issues canvassed by Buckley and by Nolan304). Hogan, Morgan & Daly305 observe:

“……. one wide common law principle is the rule that where a statute authorises the doing of a particular act, then no action will lie at the suit of any person if the inevitable consequence of the act is to cause damage, provided, of course, that it is done without negligence.306 The most common application of this principle is where public bodies are authorised to commit what might otherwise be a nuisance. However, it is important to note the “well-established principle that decisions taken in the public interest curtail private law rights only if they amount to a direct expression of legislative will.”307 Regulatory authorisation for a particular activity — such as planning permission — will rarely be enough to justify what would otherwise be an actionable wrong.308

193. As I say, I am grateful to have been relieved by the arguments of teasing out these difficult issues. I approach the case therefore on the basis that the Impugned Decisions would enable the NTA to resist, on the basis of statutory authority, an action by Lissan in public nuisance for obstruction of the highway by the bus gates.

194. The matter goes further. While I noted that all parties appear to have accepted that either or both of the Impugned Decisions of the Commission amount to statutory authority, I accept the NTA’s more precise position – which is that specifically the S.51 Approval is the statutory authority for the Scheme: the CPO merely gathers in the lands required to effect it.309

304 Buckley - The Law of Negligence and Nuisance (Common Law Series) > Part eight Defences > Chapter 23 Defences in nuisance > B Statutory

authorisation > Duties and powers §23.2; The Law of Tort (Common Law Series) > Chapter 22 Nuisance (Donal Nolan). §22. 94; Nolan, From Dyson,

Goudkamp and Wilmot-Smith (eds), Defences in Tort (Hart 2015) 183-206 Nuisance, Planning and Regulation: The Limits of Statutory Authority; Weir,

An Introduction to Tort Law, 2nd Ed’n (Oxford University Press, 2006) 163.

305 Hogan, Morgan, Daly; Administrative Law in Ireland 5th Ed. 2019 Ch 20.B.

306 Citing Allen v Gulf Oil Refining Ltd [1981] A.C. 1001. See also, Transco v Stockport Metropolitan Borough Council [2003] UKHL 61, [2004] 2 A.C. 1.

307 Citing Nolan, “Nuisance, Regulation and Planning: The Limits of Statutory Authority” in Dyson, Goudkamp and Wilmot-Smith (eds), The Limits of

Liability: Defences in Tort Law (Oxford: Hart, 2014), p.202.

308 Citing e.g. Barr v Biffa Waste Services Ltd [2013] Q.B. 455; Lawrence v Fen Tigers Ltd [2014] A.C. 822. Cf. the comments of Charleton J. in Lanigan v

Barry [2008] IEHC 29.

309 Day 2 15:01. Lissan Coal v ABP & NTA [2026] IEHC 255

Nature of Statutory Authority of Public Nuisance – Smyth v RPA

195. Here we again enter somewhat philosophical territory – whether statutory authority is a defence to public nuisance or nullifies the claim in some other way? In Clifford,310 inter alia, McCracken J held that, “once the Plaintiffs have proved a prima facie case of nuisance, the onus shifts to the Defendant to prove why they should be exempt from liability for that nuisance” by reason of statutory authority. This appears to view statutory authority as a defence – though the decision was on an interlocutory motion. I confess to finding it difficult to see that this view does not reflect the practicalities of how a trial in nuisance would actually run and requiring a Plaintiff to disprove statutory authority seems at least counterintuitive. Buckley311 repeatedly refers to statutory authority as a “defence”. Nolan312 also identifies statutory authority as a matter of defence to public nuisance – as to which, he says, the defendant bears the burden of proving that

• the statute expressly or impliedly authorised the activity interfering with the public right.

• in the design, construction and operation of the authorised activity, (s)he has acted with all reasonable regard and care for the interests of others – such that the injury was inevitable result of the authorised activity in view, inter alia, of a certain common-sense appreciation of practical feasibility, situation and expense (I consider this equivalent to the Irish law requirement of the absence of negligence in the exercise of the statutory power – Kelly and Smyth.313)

196. However it is suggested that Smyth314 establishes a different view. The plaintiffs, whose home was near the Luas,315 failed on the evidence to prove noise nuisance by the Luas. Inter alia, and as here, the Plaintiffs questioned the constitutionality of the defence of statutory authority. She considered that a defendant acting in accordance with the authorising statute and its implicit prohibition on negligence had a complete answer to the claim and there was no need to address the matter in terms of immunity. The Smyths had not challenged the constitutionality of the authorising statutes and so, Laffoy J said,

“… the effect of the presumption of constitutionality is that what the Defendants are authorised by the Line B Order316 to do, when done in compliance with that order and the statutory provisions under which it was made, is done lawfully and cannot constitute a civil wrong. When the Defendants pleaded ….. that they had constructed and are operating the Green Line in accordance with the terms of the Line B Order and that such operation cannot as a matter of law give rise to the nuisance complained of by the Plaintiffs, what they are saying is: the law allows us to operate the Green Line as we are operating it, and we are operating it lawfully. If, as a matter of fact, the Defendants are correct, in that they are operating the Green Line in accordance with the terms of the Line B Order, they are not relying on a common law immunity from suit. They are saying that they are operating in accordance with a law which carries a presumption of constitutionality.”317

310 Clifford v The Drug Treatment Centre Board, High Court, McCracken J, 7 November 1997, [1997] Lexis Citation 6571.

311 Ch 23.B.

312 §22.92 & 93.

313 Kelly v Dublin County Council (unreported, O'Hanlon J, 21 February 1986), Smyth v Railway Procurement Agency [2010] IEHC 290.

314 Smyth v Railway Procurement Agency [2010] IEHC 290.

315 Dublin’s light rail system.

316 Made in accordance with the Transport (Railway Infrastructure) Act 2001.

317 §32.7. emphasis added. Lissan Coal v ABP & NTA [2026] IEHC 255

“It was the Plaintiffs who characterised the plea …. as a plea of a “common law immunity”. …… While that may have been the traditional characterisation of the stance adopted by a Defendant, in my view, when, in this case, the Defendants are relying on the authority of an Act of the Oireachtas and an order made thereunder,318 that characterisation cannot be correct. It may be that, if the Defendants, as a matter of fact, are operating the Green Line in accordance with the terms of the Line B Order, they may be considered as enjoying something akin to an immunity, in the sense that the law treats them differently in their operation of a public transport facility than it treats the ordinary individual in the use of his property. For example, if the operation of the Green Line, in accordance with the Line B Order, generates noise to a level which would be regarded as otherwise constituting a nuisance and they are authorised by law to do that, it could be said that they are immune from suit in nuisance when compared to, say, a provider of entertainment who constructed a Ferris wheel on the Harcourt Street line embankment, which generated noise to the same level, who would be liable in tort to the property owners and occupiers in the locality. Having said that, in my view, the core issue on the defence pleaded by the Defendants in para 24 is whether the Defendants are acting lawfully, as they contend.”319

“………. they are operating it in accordance with law, that is to say, in accordance with an Act of the Oireachtas and the secondary legislation made under it, both of which enjoy the presumption of constitutionality and that is a complete answer to the Plaintiffs' claim. Alternatively, if the Defendants are not operating the Green Line at that location in accordance with the terms of the Line B Order, the ordinary principles of common law apply in the defence to the Plaintiffs' claim for nuisance. In either event, in my view, no question arises of the existence of a common law doctrine of immunity or of consistency or otherwise of such a doctrine with the Constitution.”320

“….. the First Defendant has not established that it has been operating the Green Line strictly in accordance with the terms of the Line B Order ….. Therefore, it is not open to the First Defendant to say that it is operating the Green Line strictly in accordance with the statutory authority …. and that is a complete answer to the Plaintiffs' claim. Therefore, it is necessary to consider whether the Defendants are correct in their contention that the Plaintiffs have not established a case in nuisance at common law.”321

197. The references to a “complete answer to the Plaintiffs' claim” and the observation that the RPA had “not established that it has been operating the Green Line strictly in accordance with the terms of the Line B Order” such that it was not open to the RPA to rely on “statutory authority” as “complete answer to the Plaintiffs' claim” can be thought suggestive of matter on which the RPA bore the onus of proof – in other words, a “defence” – for which word “answer” is a reasonable synonym. What is very clear, however, that Laffoy J saw statutory authority as not being a species of immunity from suit and as not susceptible to the

318 Notable as to whether an order made under a statute, as opposed to direct statutory authority of an act, can attract the protection of statutory

authority.

319 §§32.8 & 32.9 – Emphases added.

320 §32.10.

321 §33.5. Lissan Coal v ABP & NTA [2026] IEHC 255

constitutional infirmities which can attend such immunities. McMahon & Binchy322 describe Laffoy J as having “recast the defence of statutory immunity” in public nuisance – though they saw that saw this recasting as making little difference in practice. Save, however, that in their view, and potentially importantly in this case, abandoning its framing as an immunity from suit “will remove from litigants seeking to challenge the constitutionality of the legislation the argument based on the asserted unconstitutionality of statutory immunities”. Trying to express it in a positive sense and notwithstanding the practicalities of proof, I would respectfully suggest that Laffoy J’s formulation may amount to a characterisation of public nuisance as a substantial interference in the exercise of a public right for which interference lawful authority is lacking. If I may say so, given the ubiquity of regulation of public rights of way and the prominence of public rights of way in the law of public nuisance, this seems a sensible view. And on that view, the prospect of potentially constitutionally objectionable immunity from suit does not arise where statutory authority is present because the prospect of suit does not arise in the first place. No immunity is needed because there is no tort. As counsel for the State put it, relying on Smyth (and remembering also that public nuisance is at base a crime) where an act is done within the scope of a lawful authority and non-negligently it lacks the necessary quality of illegality essential to public nuisance.323 The State here reiterates the Attorney General’s analysis in Smyth,324 which I agree Laffoy J in substance accepted, that the tort of nuisance protects personal and property rights of citizens and balances, inter alia, the rights of property owners and the rights of the public. “In maintaining a just balance between the rights of the individual and those of the community, it had long been a feature of the common law before 1937325 that what was done …. under statutory authority was not actionable as nuisance, because it did not have attaching to it the necessary quality of illegality which must attend the commission of any tort.” I also agree with the State that this makes great sense as a road

authority will inevitably - by design – do things on the public road (for example, erecting a traffic light) which,

if done by a private person, would be a public nuisance by obstructing, interfering with or otherwise impeding the passage of traffic.

198. While I consider that Laffoy J’s observations on this issue were obiter, they were clearly the considered and unambiguous views of a judge of particular eminence – not least in property law. Ceteris paribus, I am happy to follow her lead. Smyth holds that a non-negligent statutorily authorised act is not actionable in public nuisance.

199. Returning to the underlying nature of public nuisance, it is, first, not a tort but a crime. Statutory authority to commit what would otherwise be a public nuisance means there is no crime. As there is no crime, the issue of property in a right of action for damages simply does not arise. In turn therefore the questions of an immunity from suit and its constitutionality do not arise. This analysis and in this respect Smyth, seem supported by Nagy326 in which a prosecution for a statutory offence of wilful obstruction of the highway, required proof that the accused had no lawful authority to do that alleged to be an obstruction.

322 Torts, 4th Ed’n 2013, §24.106.

323 Day 3.

324 set out in the judgment at §31.14.

325 i.e. the adoption of the Constitution.

326 Nagy v Weston [1965] 1 All ER 78, [1965] 1 WLR 280, 129 JP 104, 109 Sol Jo 215. Lissan Coal v ABP & NTA [2026] IEHC 255

200. Hogan, Morgan & Daly327 come differently at the issue of the constitutionality of statutory immunities. They address the issue in the context of constitutional rights of access to the courts and to remedy for legal wrong - starting by observing that the issue has never been directly judicially considered. In light of the caselaw they consider that

“As a matter of principle, if legislation were to extinguish the rights of property holders to sue in respect of nuisance and other property torts, an Irish court would probably rule that such provisions amounted to an unconstitutional attack98 on plaintiffs’ rights to sue in tort99 (which itself is a species of the property right protected by Art.40.3), or to recover compensation in respect of this State interference with their property rights;”328

201. However while Hogan, Morgan & Daly do not specify public as opposed to private nuisance and do cite Smyth, they cite it only for Laffoy J’s observation that elimination of common law rights of action must be done in accordance with the Constitution. They do not address her view that statutory authority in the law of public nuisance is not an instance of such extinction – or, put another way, is not an instance of immunity from suit and hence “no question arises …. of consistency or otherwise of such a doctrine with the Constitution.”

202. Hogan, Morgan & Daly do suggest a particular solution as to pure economic loss329 - i.e. loss of the kind at issue in the present case.

“Whereas most of the law of tort is concerned with the vindication of personal rights to property and bodily integrity (including psychological well-being), both of which are plainly protected by the Constitution, pure economic loss does not slot neatly into either of these categories. Recovery of pure economic loss could perhaps be eliminated by statute without giving rise to constitutional concerns. In addition, interpreting statutory provisions that purport to eliminate causes of action in tort so as only to eliminate claims for pure economic loss would give some effect to the intention of the Oireachtas whilst also preserving the personal rights guarantees of the Constitution.”

It seems to me that, while framed differently, this passage may in hindsight be thought to have presaged the views of Murray J in ESB v Good330 that certain types of loss do not sound in terms of constitutionality such that their uncompensated imposition may be acceptable in law.

327 Administrative Law in Ireland 5th Ed. 2019 Chapter 20 §D.

328 §20-45.

329 §20-50.

330 Infra Lissan Coal v ABP & NTA [2026] IEHC 255

G5 - CONSTITUTIONAL & ECHR PROPERTY RIGHTS

Bunreacht na hÉireann, Articles 40.3.1 & 43

203. As relevant, Bunreacht provides as follows:

“40.3.

1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”

2° The state shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

“43.1 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2 1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this article ought, in civil society, to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”

204. It has been said in JJ Haire331 that, while the analysis of their relationship has not been free from difficulty, “when considering constitutional protection of property rights, these Articles mutually inform each other”.

205. Notably, the constitutional protection of property rights is not from mere attack but is from unjust attack. It may be that the phrase “unjust attack” is best considered compendiously but it may be useful for

comparison to contemplate a “just attack” – which contemplates “attack” non-literally as a neutral concept

consisting of the diminution of a constitutionally protected property right.332 That shifts the focus to the concept of injustice as distinguishing the permissible from the impermissible. One may add that the availability of adequate compensation may render just an attack otherwise unjust. As Murray J has recently said,333 in the constitutional context injustice is “the touchstone for all property rights challenges”.

206. The right asserted here is not to ownership of Lissan’s lands nor even the right to their economic

331 J & J Haire & Co. v Minister for Health et al [2010] 2 IR 615 §89 & 90, citing Keane CJ, delivering the judgment of the Supreme Court in The Planning

and Development Bill, 1999 [2000] 2 IR 321, at p 347 and Hogan and Whyte, JM Kelly: The Irish Constitution (4th ed, Dublin, Lexis Nexis, Butterworths,

2003) pp 1978 to 1993.

332 A similar approach was taken in J & J Haire §92 in which it was considered that, absent attack, the question of injustice does not arise.

333 Electricity Supply Board v Good & Ors [2025] IESC 27, Murray J §87. Lissan Coal v ABP & NTA [2026] IEHC 255

exploitation – both will survive the Scheme. The right asserted here is to the economic exploitation of these commercial lands by the specific, and specifically profitable, means chosen by the owner – as a Filling Station. Lissan could, no doubt, have developed and may yet develop, the land in various ways. But two initial observations may be made in that regard:

• The uncompensated restriction by planning laws, in the common good, of owners’ rights to their choice of development and use of their lands, and to what they consider likely to be the most profitable such use, is so ubiquitous and constitutionally sound as to be entirely unremarkable.

• As has been seen, it is very clear that, before developing it as the Filling Station – a business especially dependant on passing trade such that its termination could be described as causing particular and compensatable damage in the law of nuisance - Lissan knew or ought to have known that the Scheme, even as envisaged and made known to it before it developed the Filling Station, would likely significantly diminish or substantially end the passing trade on which the Filling Station’s viability would foreseeably depend.

Earlier Cases, ESB v Good (2025) & Jones (2024)

207. The State submits334 and I accept that

• Many interests and rights are balanced in the planning system. Not every ‘loss’ thereby occurring requires compensation as a matter of constitutional right.

• As to a constitutional right to compensation, those from whom land/property has been expropriated are in a different position to others.

• Ordinarily, property rights are constitutionally protected through the law of torts, including the law of nuisance. If the loss is not by a recognisable tort it is likely irrecoverable, as it is not an unlawful interference with property rights.

• What would be a public nuisance but for statutory authority is not a tort – that is not a defence: it is inherent in the tort. (See above as to Smyth.)

208. The State cite Dellway335 for the observation by Fennelly J, in considering whether effects on constitutional rights entitled their holders to be heard in a decision-making process (a matter not at issue here) as requiring a distinction “between decisions addressed to or closely connected with named or identifiable individual persons or bodies and decisions made in the general public interest.” (The S.51 Approval here being a case of the latter) and citing Hempenstall336 to the effect that

"…. a change in law which has the effect of reducing property values cannot in itself amount to an infringement of constitutionally protected property rights. There are many instances in which legal

334 I paraphrase here.

335 Dellway Investments & McKillen v National Asset Management Agency, [[2011] 4 IR 1. §443 et seq.

336 Hempenstall v. Minister of the Environment [1994] 2 I.R. 20. Lissan Coal v ABP & NTA [2026] IEHC 255

changes may adversely affect property values (for example, new zoning regulations in the planning code and new legislation relating to the issue of intoxicating liquor licences) and such changes cannot be impugned as being constitutionally invalid unless some invalidity can be shown to exist apart from the resulting property value diminution."

209. Dellway was concerned with an administrative decision by NAMA to acquire loans. Of some importance here, Fennelly J continued:

“[453] We are not here, of course, concerned with a legislative measure. Nonetheless, government and other public bodies may adopt decisions having general application, which, while they have effects on individuals, do not impose an obligation on the decision maker to accord a hearing to affected persons. Planning authorities adopt development plans and designate or "zone" large areas of land for specified types of use. Such decisions are more relevant to this case than zoning regulations, mentioned by Costello J. The legislation provides its own mechanism for publication and objection. Decisions may be challenged on judicial review for want of vires or on other grounds.

They do not, however, require observance of the rule of audi alteram partem.

[454] …… I do not consider that the mere fact of diminution of property values would normally suffice to establish an individual right to be heard. The decision of a public body to embark on the construction of a bridge, an airport, sewerage works, a new motorway or the like may affect many people, in particular by adversely impacting on property values, but public consultation rather than individual judicial review is the preferred and appropriate means of balancing public and private interests. At any rate, I do not think that mere adverse effects on property values flowing from a public law decision can, on its own, trigger the right. I am prompted to recall the analogy with the rules for compensation for compulsory acquisition of property. The rules make a distinction between injurious affection caused by what is done on land taken from the claimant and on land not so taken. In other words, the claimant has to put up with the effects of the compulsory purchase order, insofar as they emerge from land not taken from him …..337.

Though the foregoing was not cited in ESB v Good338 it and Dellway seem to me consistent in this regard.

210. As to the distinction between what the State submits is the “extraordinary” instance of expropriation and lesser interferences with property rights, Charleton J in McGrath Limestone339 cited as “of high authority” the judgment of Ó Néill J in Quirke340 - inter alia to the effect that:

“… not all interferences with property rights will require compensation to be paid to ensure constitutional legitimacy. Compensation will be required in circumstances where property is wholly expropriated or where the bundle of rights which constitute ownership are substantially taken

337 Citing Chadwick v. Fingal County Council [2007] IESC 49, [2008] 3 I.R. 66.

338 Electricity Supply Board v Good [2025] IESC 27, [2025] 5 JIC 2703. Dellway was cited only briefly.

339 McGrath Limestone Works v. An Bord Pleanála [2010] 2 ILRM 91.

340 M & F Quirke & Sons v An Bord Pleanála [2010] 2 ILRM 91 Lissan Coal v ABP & NTA [2026] IEHC 255

away but lesser interferences with the right to private property would not require compensation.”

In similar vein, Mahon341 held that dezoning land in a development plan “naturally enough will have the effect of de-valuing the land” but does not yield a right to compensation as a matter of constitutional entitlement or, absent compensation, amount to an unjust attack on property rights. And in O’Callaghan342 the Supreme Court held that lawful limitations, imposed for the common good, on the use of land are not an unjust attack on constitutional property rights.

211. After trial, I was referred to ESB v Good by the NTA - on notice to and without objection by the other parties. All parties made supplemental written submissions accordingly. The case appears to me to be important to the present case for its consideration of the constitutional significance of interference with property rights. That is because, Murray J, in a carefully considered obiter,343 made the significant observations that

• statutory dispositions of property rights and of statutory compensation rights as to interference with property rights may – but, also and importantly, may not – spring from or prompt a need to protect constitutionally-protected rights from unjust attack. Where not, those dispositions may have a different origin – in the political resolution, as expressed in law, of competing economic and political interests, forces and arguments.344 So, some statutory rights to compensation may, as a matter of political and legislative choice, exceed those required to avoid unjust attack on constitutionally-protected property rights. Such instances should not be mistaken as constitutionally required.

• where “attack” (in the sense of acquisition of, restriction of and/or interference with) on constitutionally-protected property rights is in issue, a nuanced approach is required to the question whether, in light of the nature of the right in question, the specifics of the attack thereon and the need to balance such rights with the common good, any compensation, or a particular form, degree or extent of compensation, is required to render such an attack not “unjust”.

212. In ESB v Good, the ESB sought certiorari of the determination by Mr Good (a property arbitrator) that the landowners (“the O’Reillys”) were entitled to compensation pursuant to s.53(5) of the Electricity

(Supply) Act 1927 (the “1927 Act”345) for alleged depreciation – “injurious affection” - of lands due to the

341 Mahon v An Bord Pleanála [2010] IEHC 495.

342 O'Callaghan v. Commissioners for Public Works [1985] ILRM 364.

343 Murray J spoke for the Court. However, it should be noted that the concurring judgment of Woulfe J reserved his position on the constitutional

issues.

344 He considered the example of the statutory resolution in Victorian times and in CPO and CPO compensation law of the contesting positions of the

land-owning classes and the railway entrepreneurs. It was, he recorded, “conspicuously generous to established and politically powerful landed

interests”.

345 As amended, notably after Electricity Supply Board v. Gormley [1985] IR 129 by the Electricity Supply (Amendment) Act 1985. In part and as

relevant, S.53 reads as follows:

53.— (1) …. any authorised undertaker may, …. place any electric line above or below ground across any land not being a street, road, railway, or

tramway.

(2) …. any authorised undertaker may attach to any wall, house, or other building any bracket or other fixture required for the carrying or support of an

electric line or any electrical apparatus.

(3) Before placing an electric line across any land or attaching any fixture to any building under this section … the authorised undertaker … shall serve

on the owner and on the occupier of such land or building a notice in writing stating its or his intention so to place the line or attach the fixture …..

Lissan Coal v ABP & NTA [2026] IEHC 255

placing of a 110 kV power line and supporting poles and pylons over part of the O’Reillys’ lands. No land was acquired by the ESB. Essentially, the O’Reillys alleged, and the ESB disputed, that they were entitled to compensation not merely for depreciation of the very strip traversed by the line and the area occupied by the poles, pylons and line but also for depreciation, by reason of the proximity of the poles, pylons and line, of other lands with which that strip was held and on which, they said inter alia, house sites would be devalued. They said such compensation was “baked into” the meaning of compensation in s.53(5) by centuries of common law compensation principles of restitutio in integrum - as reflected in legislative practice - and as baked in also by the Constitution. The ESB disagreed – it said that compensation for injurious affection of lands not taken by the acquiring authority is not baked into the meaning of compensation – and, specifically, is not constitutionally required. Rather, the ESB said, such compensation must be explicitly authorised by statute (such as by incorporation of ss.63 and/or 68 of the 1845 Act) - which had not been done in the 1927 Act. Murray J held for the O’Reillys – but as a matter of statutory interpretation of the extent of the right to “compensation” for which s.53(5) provided. The necessity of their compensation for injurious affection arose from common law principles of statutory interpretation – not from any finding of unjust attack on constitutional rights. His rationale was “wholly located in the common law as applied to the construction of the word ‘compensation”.

213. Murray J observed that where an electric line is placed on land and the burdens provided for in s.53 of the 1927 Act are imposed on the landowner, no land is ‘taken’ or ‘retained’, as those terms are conventionally understood. There is nonetheless an interference with the owner’s property rights by each of the placement of the line and the ESB’s ongoing right of access to the land “for the purpose of placing, repairing or altering such line”.346 In ESB v Gormley347 the Supreme Court had held the right to place the line unconstitutional absent compensation and the 1985 amendment of s.53 of the 1927 Act had provided for compensation accordingly. He cited “any amount of authority”348 for the view that the starting point in interpreting a simply stated and unqualified statutory right to “compensation” for a compulsory acquisition of property interests is a right, on a ‘principle of equivalence’, to be fully compensated for total losses resulting from that acquisition. But, he said, the real question is what exactly does this mean? He said that ‘Total loss’ compensation does not, for example, compensate for subjective losses such as distress by reason of the compulsory acquisition but usually does require compensation to reflect the market value of the asset so acquired. The issue is how that measure of losses, between these clear markers, will ordinarily be defined, identified, and rationalised.

(4) If … the owner and the occupier of such land or building …. consent … the authorised undertaker may proceed to place such line across such land or

to attach such fixture ….

(5) If the owner or occupier of such land or building fails … to … consent …. the authorised undertaker with the consent of the Board but not otherwise

may place such line across such land or attach such fixture to such building …. subject to the entitlement of such owner or occupier to be paid

compensation …. such compensation to be assessed in default of agreement under … the Acquisition of Land (Assessment of Compensation) Act 1919,

…

(9) Where … an authorised undertaker is authorised by or under this section to place or retain any electric line across any land or to attach or retain any

fixture on any building … such authorised undertaker …. may at any time enter on such land or building for the purpose of placing, repairing, or altering

such line or such fixture or any line or apparatus supported by such fixture.”

346 s.53(9) of the 1927 Act.

347 Electricity Supply Board v. Gormley [1985] IR 129.

348 He cites, inter alia, Comyn v. Attorney General [1950] IR 142; Commissioners for Public Works v. Flood [1980] ILRM 38; Gunning v. Dublin

Corporation [1983] ILRM 56; Uyttewaal v. Commissioners for Public Works [1987] IR 439; and Minogue v. Clare Co. Co. [2021] IECA 98.

Lissan Coal v ABP & NTA [2026] IEHC 255

214. Murray J explained ss.63 and 68 of the 1845 Act – essentially349 - as allowing compensation for injurious affection. As has been seen, S.63 allows it where land has been taken from the claimant and s.68 allows it, where no land has been taken from the claimant. Accordingly he agreed350 that s.68 “has nothing to do with compulsory acquisition”. The conditions on which compensation is allowed differ as between ss.63 and 68. Murray J described the McCarthy/Wildtree principles on which s.68 compensation is allowed. As he considered that s.53 of the 1927 Act did not empower a “taking” of “land”, Murray J held that the 1845 Act was not incorporated351 in the 1927 Act compensation procedure and the word ‘compensation’, as that word is used in s.53, must be construed without regard to ss. 63 or 68. However, that, of itself, did not imply that the word excluded compensation for injurious affection of lands other than the “strip” over which the power line would run.352 Murray J noted authority353 that, even where the 1845 Act is not incorporated in a statutory scheme for compulsory acquisition, rights to compensation may be understood to include compensation for injurious affection. The rationale appears to be that a landowner considering a voluntary sale could decide against it in light of its foreseen effect on his retained lands or factor that effect into the price for which he would be willing to sell, whereas (s)he cannot decide against a compelled sale.354 This seems to me consistent also with the principle that CPO compensation is assessed on a basis of “value to

owner” – see Gunning.355 In considering that question, Murray J returned to the ‘principle of equivalence’ –

of “full” compensation - embedded in the presumptive meaning of ‘compensation’ where that term appears in legislation addressing the compulsory acquisition of property. He noted the extension of that principle in Rafferty356 to the compulsory destruction of property other than land. Murray J found, as a matter of statutory interpretation, that the general common law meaning of “compensation” applied to s.53 and that meaning encompassed compensation for injurious affection of lands other than, but held with, the “strip” over which the line would run.

215. So Murray J did not decide the case on the issue of unjust attack on constitutionally-protected property rights. Nonetheless, he took the opportunity to consider that issue obiter,357 but in depth. He considered that the caselaw on Articles 40.3 and 43 of the Constitution did not support any general proposition that the Constitution mandated compensation for injurious affection. With some apology, I think it necessary to set out his following analysis in extenso, albeit edited:358

“81. The definition of, and delineation of permissible interferences with, constitutional property rights is notoriously complex. The same is true of the specification of those circumstances in which interferences with those interests will require compensation, from those that will not, and indeed of the identification of the headings of compensation that are constitutionally required for particular

349 In truth the explanation is complex.

350 With Scott LJ in Horn v. Sunderland Corporation [1941] 2 KB 26.

351 The 1845 Act is a “clauses” act providing standard compensation clauses for incorporation in statutory schemes for compulsory acquisition.

352 §§ 52 & 53.

353 R(Moore) v. Abbott [1897] 2 IR 362, Re Neds Point Battery [1903] 2 IR 192, 198, Blundell v. The King [1905] 1 KB 506, The Master and Fellows of

University College, Oxford v. The Secretary of State for Air [1938] 1 KB 648, Personal Representatives of Till, deceased, v. Secretary of State for Air

[1957] 1 Q.B. 523, [1957] 2 WLR 346, Minister for Highways for the Province of British Columbia v. British Pacific Properties Ltd. [1960] SCR 561.

354 Murray J §34.

355 Gunning v Dublin Corporation [1983] I.L.R.M. 56, citing Birmingham Corporation v West Midland Baptist (Trust) Assoc. (Inc) [1970] AC 874.

356 Rafferty v. Minister for Agriculture, Food and Rural Development [2014] IESC 61, [2020] 2 IR 463 (Culling of sheep during a foot and mouth disease

outbreak).

357 At §80 he observed: “Nonetheless, the decision in Gormley was the subject of detailed argument in this appeal, and it is appropriate to address it.”

358 I have abbreviated elements of the following. Lissan Coal v ABP & NTA [2026] IEHC 255

impairments of specific entitlements.

These complications follow from the range of property interests it has been suggested359 are protected by those guarantees, … from unencumbered rights in real property, to contractual rights, choses in action, money, personal property, intellectual property, statutory licences, shares, development consents or cognate entitlements, and, at least according to some of the cases, rights in an occupation or business together with the right to litigate.360

They are, further, products of the range of possible limitations arising from state action, from outright and legally compelled acquisition of those rights, or where applicable their extinguishment, to lesser impairments, qualifications, or interferences.

Every case presenting the questions of whether compensation is constitutionally required and, if so, what level of compensation must be provided thus confronts an involved calculus requiring an assessment of the relationship between up to seven variables:

(a) the nature of the interest in play,

(b) the rights commonly attached to ownership of that interest,

(c) the extent of the interference,

(d) the reason for the impairment,

(e) whether the ‘property’ right is in truth a right, or some form of revocable statutory privilege (and indeed whether part of the value of the property is within the gift of the legislature or is affected by decisions made by or on behalf of the State in the exercise of statutory powers),

(f) whether compensation of some form is provided consequent upon the interference, and

(g) where compensation is provided for whatever it is the State has done, how it is calculated.

82. That this exercise falls to be conducted against a background of case law that presents what Professor Walsh has described as ‘a high level of doctrinal uncertainty’361 does not lessen the complication. Nonetheless, I think that in striking the right relationship between these factors, the following can be said:

(i) Obviously, the State must have good reason for the compulsory acquisition of, or legislative interference with, a person's property rights, and the extent of the interference with those rights ……. must be reasonable and proportionate to that objective. In deciding whether there is such a proportionate relationship, the fact and extent of the compensation provided by the State in respect of that interference, will often be key. Compensation or no compensation, arbitrary deprivations of property will for that reason alone be invalid:

Blake.362 In a similar vein it has been found that the imposition upon one section of the

359 Murray J stressed that what followed is a summary of what has, at various points, been said to be within the contemplation of the property

guarantees in the Constitution, rather than a considered analysis of what, properly interpreted, the scope of the rights so protected actually is.

360 see, in particular, the description of the scope of constitutionally protected property interests in the judgment of Hardiman J. in Dellway v NAMA

[2011] IESC 14, [2011] 4 IR 1, 287.

361 R. Walsh, Property Rights and Social Justice (Cambridge 2022) at p. 106.

362 Blake v. Attorney General [1982] IR 117. Lissan Coal v ABP & NTA [2026] IEHC 255

community of the cost of achieving particular social objectives – however desirable – breaches these same guarantees …….363.

(ii) – (v) (These factors relate to compulsory acquisition of all of the elements of a full property right in an asset - outright acquisition - and the presumption (though not the absolute rule) of a requirement of full market value compensation. As no such acquisition from Lissan is in prospect, these factors can be omitted from the present list. Note however that in the Planning Bill case,364 Keane CJ suggested obiter, that there would be circumstances in which, in addition to the market value of the land taken, the additional compensation payable in compulsory acquisitions of land effected under the 1845 Act365 - for disturbance, injurious affection and severance - “would also be constitutionally mandated”.)

(vi) The position where the law imposes a restriction on the exercise of only some of the rights comprising ownership of an item of property is different. Here, it has been observed that ‘restrictions on the exercise of property rights falling short of deprivations are rarely invalidated by the courts.’366 In this context, there is an unsurprising correlation between the strength of the public interest that is invoked to justify the impairment of a property right, and the extent of the restriction that may be permissibly imposed on the exercise of that right.

(vii) In that regard it has been suggested that compensation will be required …..

wherever there is a ‘substantial encroachment’ on those interests …..367. Where what is involved is a restriction on the exercise of only some of the rights comprising ownership of an item of property, the question of whether there is an entitlement to compensation (and, it must be presumed similarly the question of what compensation must be provided) will thus – again, obviously – depend on the nature and extent of the restriction. But this may also depend on other attendant circumstances (such as the regulatory context in which the restriction is imposed, the knowledge of the owner of the fact of, or potential for, such restrictions when acquiring the property and the reason for the restriction).

(viii) It follows that there will be circumstances in which legislation effecting a limited interference with property interests that is underpinned by a strong public interest may be upheld as constitutionally valid even though no provision is made for compensation.

In Gormley … the plaintiff had a right to be compensated where the ESB exercised the power conferred by the former iteration of s.53(5), but no right to be compensated where it exercised its power under s.98 to lop trees or other obstructions to the laying of the wires.

363 Re Article 26 and the Employment Equality Bill 1996 [1997] 1 IR 321 21.

364 Re Article 26 of the Constitution and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321, citing Dreher v. Irish Land Commission

[1984] ILRM 94.

365 Land Clauses Consolidation Act, 1845 - as determined under the Acquisition of Land (Assessment of Compensation) Act, 1919, as subsequently

amended.

366 R. Walsh, Property Rights and Social Justice (Cambridge 2022) at 162.

367 Re the Health (Amendment) (No.2) Bill at p. 201. Lissan Coal v ABP & NTA [2026] IEHC 255

The first of these limited the owner's right to use the land, the second was viewed as de minimis. In O'Callaghan, … restrictions on the user of land … the subject of preservation orders under the National Monuments Act 1930 but where there was no compensation, were not unconstitutional. The important objective of that legislation was stressed by the Court. O'Callaghan has been explained as a decision referable to the knowledge of the owner of the property that there was a monument on the land before he purchased it ……….368, but … the decision comprised a challenge to the constitutional validity of the provision, and ... the relevant section was upheld substantively, generally and not necessarily on the basis of the particular circumstances of the plaintiff.369 Outside the realms of real property there are cases in which compelling public interests were found to justify significant interferences with property rights where no compensation was provided ……370.

83. …. the essential point that follows from this summary: a spectrum moves towards total loss compensation in the case of the extinguishment of a property right, and along that spectrum are points where compensation is required, but need not be total loss compensation. There is, as she put it, a tilting point at which one moves from no compensation to compensation. The closer one moves towards the end of that spectrum the more the restriction may require not merely compensation, but total loss compensation. I agree with this analysis. As I have noted, the case law affords examples of restrictions upon, and interferences with, property interests that do not attract compensation at all. These decisions are best reconciled with those in which compensation has been mandated, by an approach of this kind.

84. Bearing the foregoing in mind, there are powerful reasons for concluding that the exclusion of compensation for ‘injurious affection’ of the kind contended for by the O'Reillys would not be inconsistent with these principles. …. in this case there is no taking of property …. [Murray J described the restrictions imposed by the line, pylons and pole.] …. The justification for that restriction is overwhelming. The owner's rights vis-à-vis the property are largely maintained. …...

While Underwood, Chadwick and Rafferty371 speak of the principle of equivalence in constitutional terms, none of the authorities were addressed to the relationship between constitutional property rights and an asserted diminution in value to land caused not by compelled acquisition, but by an imposition which causes a damage for which – at least in part – others, when they experience it, have no right to seek compensation. None of these cases demand a perfect equation between that

368 Re Planning and Development Bill 1999 p. 352.

369 Emphasis added. Murray J continues: “The relevant part of the judgment of the Court (at p. 368) did not focus only on the knowledge of the

plaintiff that the property included a national monument before he purchased it, but also upon ‘the common duty of all citizens’ to preserve such a

monument. In finding that the absence of compensation did not render the legislation invalid in these circumstances, the Court concluded that the

relevant provision did not delimit the rights of ownership in the property, but rather their exercise, and that it sought to reconcile that user with the

exigencies of the common good in the form of the national aspirations as set out in the Preamble and Article 1 of the Constitution. One might have

thought that had the decision been based solely on the fact that the plaintiff knew of the restrictions on the user of the property when he purchased it,

the objection based on the lack of compensation would have been dismissed by reference to standing or jus tertii, which it was not.”

370 J&J Haire & Co. Ltd. v. Minister for Health [2009] IEHC 562, [2010] 2 IR 615 was a challenge to the Health Professionals (Reduction of Payments to

Community Pharmacist Contractors) Regulations 200. Unite the Union v. The Minister for Finance [2010] IEHC 354 was a judicial review of the decision

of the Minister for Finance, not to exempt certain Central Bank and other employees from deductions authorised by 2 of the Financial Emergency

Measures in the Public Interest Act 2009, commonly referred to as “the pension levy”.

371 Dublin Corporation v. Underwood [1997] 1 IR 69; Chadwick v. Fingal County Council [2007] IESC 49, [2008] 3 IR 66; Rafferty v. Minister for

Agriculture, [2014] IESC 61, [2020] 2 IR 463. Lissan Coal v ABP & NTA [2026] IEHC 255

compensation mandated by the Constitution for interferences with property interests, and the compensation enabled by the vagarious developments of the common law or by the provisions of early Victorian legislation governing the compulsory acquisition of property.”

216. For the avoidance of doubt, the reference to early Victorian legislation is to, inter alia, the 1845 Act. Murray J also observed that the 1845 Act reflected the political resolution of competing interests between private landowners and private railway entrepreneurs – not between the competing interests of either or both with those of the State. To put Murray J’s general observation another way, that the common law – or, for that matter, statute - provides a right or benefit does not per se imply that the Constitution requires its provision and that they do not provide a right or benefit does not per se imply that the Constitution does not require its provision. However, it seems to me that, while the equation may not be perfect, weight may be given to the fact that the Constitution was not drafted and adopted, and has not thereafter been interpreted, in a vacuum of legal tradition and societal understanding of property rights. As has been seen, in Smyth, Laffoy J found assistance in the state of the common law before 1937.372

217. I return to the judgment of Murray J. He considered that compensation for injurious affection of a project may not be required by the Constitution – especially where no land is taken. He said:

“85. If any aspect of the principle of equivalence is a candidate for excision from the categories of compensation required by the Constitution where there is a legislatively imposed restriction on property rights, it is ‘injurious affection’. ….. the 1845 Act itself was geared to the interests at that time of, and was orchestrated by, a politically influential landowning class, and that legislation involved a balance not between those landowners and the State as a whole, but between their interests and those of railway entrepreneurs. Moreover, there has always been a pragmatic and practical justification for generous compensation when property is compulsorily acquired. There are good reasons for not unthinkingly treating the settlement reached between those particular interests almost two centuries ago as defining the scope of those rights of property protected today by the Constitution, and it is a mistake to reflexively convert pragmatic compromise into constitutional entitlement, at least where the issue arises from the legitimate demands of the community as a whole. The very fact that, historically, legislation has either not adopted or excluded ss. 63 or 68 of the 1845 Act shows that, traditionally, the exclusion of such losses has been tolerated by the law. The case for doing so in a context in which no property is taken, and in which instead a statutory burden is imposed in order to enable the transmission of an energy resource that is vital for all members of the community, is particularly strong.

86. The most striking feature of ‘injurious affection’ is the extent to which this heading of loss can operate in a random and unfair manner, potentially placing those who are the owners of certain property interests at a significant advantage to others for reasons that are not necessarily related to the injury they have exclusively sustained as a consequence of public works. ……….

Landowners may find the amenity of their property seriously affected by development on adjacent

372 i.e. the adoption of the Constitution. Lissan Coal v ABP & NTA [2026] IEHC 255

property but have no right to any compensation unless some of their property has been taken. On the other hand, those whose land has been taken will obtain compensation, potentially for precisely the same interference, the amount of their compensation increasing in proportion to the size of their property holding. The view from Ms. Gormley's residence may have been diminished in quality by reason of the presence of pylons at the end of her garden, but the proposition that she obtains compensation to reflect the consequent diminution in value of her home while her neighbours, although finding the aspect of their homes similarly diminished obtain no damages, may reflect the occasional arbitrariness of the common law: it requires some justification to convert that into a constitutional entitlement.

87. While the Scott Committee373 recommended the expansion of this heading of compensation to cover the position of the landowner whose property has suffered from adjacent works, but has had nothing ‘ taken’, the Court has already found in Chadwick374 that the Constitution does not require that extension. Nor can it conceivably demand the maintenance of rights that effect arbitrary unfairness. The touchstone for all property rights challenges is, as the Court made clear in Blake and as it has repeatedly been stressed since then, whether there has been an ‘ unjust’ attack on the rights involved. In my view, the exclusion of ‘injurious affection’ ….. from the compensation required to be paid to those property owners on whose lands electricity pylons and poles are imposed pursuant to s.53, and across whose holdings electricity wires must travel would not be ‘unjust’ within the meaning of the Court's case law negotiating the property rights provisions of the Constitution. This follows from the significant public interest in play, the limited interference with property rights arising where powers of the nature in issue here are invoked, and the sometimes random if not accidental manner in which some property owners can obtain such compensation at common law, while others cannot. The State can undertake projects that increase the value of private property, just as by engaging other activities it can cause that value to be reduced. It is not required by the Constitution to compensate for all fluctuations in value arising from those actions, and where …… it acts to implement measures that are critically necessary in the public interest without depriving landowners of the essential features of property ownership, it should not be assumed that the Constitution mandates the payment of all components of the compensation that has been historically demanded by the common law for ‘takings’ of property.”375

218. Particularly notable, as it applies to Lissan’s case, is Murray J’s observation that the Supreme Court in Chadwick had found that the Constitution does not require compensation for injurious affection of the landowner whose property has suffered from adjacent works, but has had nothing ‘taken’.

219. In similar vein, I note Murray J’s reference, in considering that “the most striking feature of ‘injurious

affection’ is the extent to which this heading of loss can operate in a random and unfair manner” - “the sometimes random if not accidental manner in which some property owners can obtain such compensation

373 L. Scott QC, Chairman, ‘Second report to the Ministry of Reconstruction of the Committee Dealing with the Law and Practice Relating to the

Acquisition and Valuation of Land for Public Purposes’ (1918) Cmnd. 9229.

374 The Supreme Court in Chadwick v. Fingal County Council [2007] IESC 49, [2008] 3 IR 66.

375 Emphases added. Lissan Coal v ABP & NTA [2026] IEHC 255

at common law, while others cannot.” Murray J clearly considers that situation constitutionally tolerable. But that can only be so if the statutory or common law right to compensation for injurious affection is not underlain by a constitutional right to such compensation. If I understand correctly, his point in this specific respect is that if the law (common or statutory) provides compensation to some beyond what is constitutionally required, another to whom such compensation is refused cannot, for that reason alone and at least usually, complain of unjust attack on his constitutional property rights.

220. As to Murray J’s observation that whether there is a specifically constitutional entitlement to compensation, and if so for what and how much, may depend on various attendant circumstances including

“the knowledge of the owner of the fact of, or potential for, such restrictions when acquiring the property”, it

seems to me a small leap to suggest that such attendant circumstances may include “the knowledge of the owner of the fact of, or potential for, such restrictions when investing in the property and putting it to commercial use.” Whether an attack is constitutionally unjust absent compensation may be affected by considerations particular to the case - such as whether the landowner chose to exercise its property rights in a particular manner despite notification in advance of such development of a particular risk that it might be commercially unwise to do so (for example by developing a petrol station). A constitutional right to compensation may be properly and considerably attenuated or absent as to the eventuation of a risk voluntarily assumed. Analogously, that was the view taken in O’Callaghan376 as to “a limitation of use of which he was substantially on notice before his purchase” and in the Planning Bill case377 Keane CJ commented on O’Callaghan: “… the fact that the plaintiff was aware of the existence of such a restriction at the time that he acquired the land seems to have played at least some part in the ultimate result.” (I repeat my appreciation that Lissan did not know of the scheme before it bought. But it did know of the risk it posed when it spent on developing a Filling Station dependent on passing trade.). This view appears to have informed the Court’s determination that it was not unfair or unreasonable to distinguish (as to terms of compensation) between those who bought their land before, and those who bought after publication of the Planning Bill.378

221. That a constitutional right to compensation may be properly and considerably attenuated or absent as to the eventuation of a risk voluntarily assumed may be particularly so where societal justification of financial reward to entrepreneurs is appreciably motivated by their activity being distinguished by their voluntary assumption of commercial risk. The taking of risk is characteristic of commercial activity and to take a risk is to accept the possibility that its downside will eventuate and have to be borne. Put another way, and whatever the common law and statute may provide, it is difficult to see that the Constitution requires that society indemnify an entrepreneur for the eventuation of a risk voluntarily taken.379

376 O'Callaghan v. Commissioners of Public Works, 1984 WJSC-SC 2607; [1985] 1 I.L.R.M.

377 In re Article 26 in the matter of the Planning and Development Bill 1999 [2000] 2 I.R. 321.

378 See Kelly on the Constitution, 2018 §7.8.145.

379 Murray J makes clear also that the constitution may not compel compensation even in the absence of such knowledge - §82 (viii).

Lissan Coal v ABP & NTA [2026] IEHC 255

222. Though the legal context was very different, the phrase recently used by Collins J in Ace Autobody,380 resonates with Lissan’s situation here. When finding that Ace lacked the equity of unconscionability to support a claim of proprietary estoppel (I observe that unconscionability is central to

the concept of “unjust” attack and as Murray J said, in the constitutional context injustice is “the touchstone

for all property rights challenges”), Collins J said: Ace “ran a commercial risk, with its eyes open”. That statute

may, as a matter of political/pragmatic/economic choice and as a matter of the conventional interpretation of statutory provisions for compensation, properly mitigate such risks does not, per se, elevate such mitigation to the status of a constitutional requisite. That the State might seek to insulate entrepreneurs against risk in greater or lesser degree381 should not be mistaken for a constitutional right to such insulation.

223. It may, of course, be argued (often correctly) that tortious and/or statutory provision of compensation is both prompted by and illustrates the constitutional imperative to protect constitutional property rights from unjust attack. That is certainly said of the law of nuisance. But, in a given instance, the source of the posited right to compensation may be merely382 a sub-constitutional legislative decision.

224. So, for example, it does not seem to me that consideration of the justice, and hence the

constitutional status, of the “attack” is in principle affected by the mere fact, if it be a fact, that a landowner

who ran a commercial risk with his/her eyes open to the prospect of compulsory purchase may be entitled in CPO compensation law to develop his land as he may until the statutorily-determined valuation date (date of service of notice to treat – Gunning, Underwood and Lynch383) and claim compensation referable to the land as thus developed. Counsel for Lissan said it “could build away until the last minute”384 and framed the landowner’s position in this regard, in terms of the absence of a duty to “mitigate” before service of the notice to treat.385 Mitigation is not the applicable concept. It tends to obscure the real assertion: a right to develop as one wishes, ignoring – more accurately, taking - a foreseen risk (which is, of course, a right and a course of action characteristic of entrepreneurs) and, on the eventuation of that risk, a constitutional right to compensation for its eventuation. At least as a general proposition, I do not accept the latter part of the assertion. Whatever way one frames it, I don’t see that the position as to the valuation date in CPO compensation law is to be mistaken for a specifically constitutional right to compensation for the

foreseeable eventuation of a risk freely taken. Lissan’s argument that it is free to develop as it likes until the

valuation date set by CPO law and claim compensation based on the condition of development of the land at that date, falls to the logic of Murray J. The legislature, as a matter of political decision, routinely provides greater and other rights than those protected by the Constitution. So it is with the valuation date set by CPO law.

380 Ace Autobody v Motorpark [2026] IESC 9 §151, citing Cobbe v Yeoman’s Row Management [2008] UKHL 55, [2008] 1 WLR 1752.

381 To pick an example – by state-backed export credit insurance.

382 Which is not to say, unimportantly in the general sense.

383 Gunning v Dublin Corporation [1983] I.L.R.M. 56 Dublin Corporation v Underwood [1997] 1 IR 69& Cork County Council v. Lynch [2021] IECA 4.

384 Day 3 13:28.

385 Day 2 10:46 et seq. Lissan Coal v ABP & NTA [2026] IEHC 255

225. It seems to me that the concept of “unjust” attack is probably incapable of definition. Its recognition turns, as Murray J said, on “an involved calculus requiring an assessment of the relationship between up to seven variables” – on the balancing of private property rights with the common good and, likely very considerably, on the particular facts and circumstances of the case and perhaps also the application of precedent, if by analogy.

226. In Jones386 the challenger failed to have quashed as an unjust attack on its constitutional property rights a reservation of its lands as a site for a school which, it said, had in successive development plans effectively sterilised its lands for over 20 years. While that it not precisely the situation here, the similarity suffices to illuminate. Where the Scheme will in reality preclude one use, but not all uses, of the Site, what Humphreys J said bears repeating:

“…….. there is no constitutional right to profit maximisation. In an ordered society there is no unqualified human right to do whatever you want with your land. The uses of any given piece of land are inherently, structurally, philosophically, geographically and legally indivisible from an overall judgement as to the common good in relation to the requirements of proper planning and sustainable development for an area as a whole …. Insofar as a burden has to fall on somebody to make way for social provision, the individual applicant concerned doesn’t have a valid legal complaint on that ground unless the chosen option is clearly disproportionate or irrational. That is a significant hurdle for an applicant to surmount in an area where the decision requires complex policy assessment that the court really has no competence to engage in.”387

227. Humphreys J, citing the Planning Bill Case,388 had presaged this view as follows:

“Land is different from other types of property for a number of poignant reasons. There is only so much of it, and the use of one piece of land impacts on other pieces of land in a way that requires compromises and burdens that inescapably and by definition fall unequally on differing rightsholders at different times. More broadly, the planet and its atmosphere is a total ecosystem. Any interest in land is ultimately tantamount to a leasehold held by the current generation. Legislative regulation must address not just the balance of interests between current actors but the issue of sustainability into the far future and intergenerational justice and rights in that context. Land must be subject to community regulation in a way that would not be acceptable if applied to, for example, regulation of how people use fungible assets. Such regulation inherently involves winners and losers – that’s baked in. Anyone who acquires rights in land knows that, or certainly should know that, before they become a rights holder. That very fact hobbles the cry of unconstitutional restriction of rights from the outset.

As the Supreme Court has stated, “Every person who acquires or inherits land takes it subject to any

386 Jones & Anor v. South Dublin County Council [2024] IEHC 301.

387 §236 – citing Hogan J in Killegland Estates v Meath County Council [2023] IESC 39, [2023] 12 JIC 2109.

388 In re Article 26 in the matter of the Planning and Development Bill 1999 [2000] 2 I.R. 321. Lissan Coal v ABP & NTA [2026] IEHC 255

restrictions which the general law of planning imposes on the use of the property in the public interest”389 …….. A present-day rights-holder’s wish to engage in the most profitable use of her land must yield to the long-term interests of future generations. ………. One rights-holder’s entitlement under a permission to conduct one form of activity may render the conduct of another particular activity next door impracticable or inappropriate or just less rewarding. Courts in their historical role as providers of commutative justice tend to gravitate towards a need for equality, but by definition there can be no inherent and rigid equality in such outcomes. All that can happen is a policy-based, merits-based, judgement of the appropriateness of different land uses on particular, finite, pieces of land. Only a crude, blinkered, 19th century view of property rights would find a violation of the “right” of a current-day property rights-holder to do as they will by reason of an otherwise lawful limitation put in place to address the needs of future generations. To repeat, there is simply no getting away from the fact that the regulation of land use involves winners and losers.

The winners don’t litigate. Only the losers come to court, and they come with heartfelt cries of the type which courts are used to hearing in the commutative justice context. But there simply can’t be a read-across to the distributive justice context where not every ticket can be a winning ticket. 390

As I say, the circumstances here are different – but the counterbalancing of private property interests and public interests is similar - even though the effect on the former in Jones was pretty direct (reservation of their specific lands) whereas here it is indirect.

228. As to the distinction drawn by Murray J between legal rights to compensation and those required by the Constitution, the view that one holds land subject to planning law restrictions on its use imposed in the public interest seems to me to have at least some analogy, in a modern society vitally dependent on mass transport and progressively and urgently more dependent on modal shift to sustainable mass transport, to restrictions on the use of land imposed in the public interest by way of development of and regulation of use of public roads. Road use has always and inevitably been highly regulated. As I said at trial, nobody imagines that a public right of way is unfettered. There are myriad restrictions on how the public is entitled to exercise the public right of way for all sorts of reasons of the public good.391 Regulation and development of the road system has always produced winners and losers. The market town shopkeeper has long been at that risk – initially of the by-pass and latterly of the motorway. The urban shopkeeper must adapt to the one-way system or parking restrictions imposed on its customers and deliveries. Some fail, or are unable, to adapt and others find their profits rise. As was said in Hempenstall392 property rights are subject to the conditions created by law and to an implied condition that the law may change those conditions.

389 In re Article 26 in the matter of the Planning and Development Bill 1999 [2000] 2 I.R. 321.

390 §231 and 232.

391 Day 1 16:09.

392 Hempenstall v Minister for the Environment [1994] 2 IR 20. Lissan Coal v ABP & NTA [2026] IEHC 255

Application of Law to Lissan’s Case

229. Recognising the “doctrinal uncertainty”, “notorious” complexity and “involved calculus” to which Murray J refers and also that whether there is unjust attack on property rights absent compensation must be decided not as a theoretical abstract but by reference to the specific factual and legal matrix of the case, I will attempt to apply the principles identified in ESB v Good to the matrix here – though I will re-order the principles from the list provided by Murray J.

230. First, I will assume that by the Scheme Lissan will lose its passing trade and will thereby lose the viability of its present business – though not the entire value of its lands - and that it will not be compensated for that loss. Therefore, the extent of the interference in any constitutional rights Lissan may have and the absence of compensation for such interference weigh, ceteris paribus, appreciably in the calculus and in favour of a finding of unjust attack.

231. However, here there is, by the Scheme and the CPO, no acquisition of land from Lissan and the interference with whatever constitutional right, if any, Lissan may have to passing trade falls short of an

“outright taking of property”. As to the Site, there is no question here of “compulsory acquisition of all of the

elements that constitute a full property right in an asset” – indeed, far from it. Murray J’s observation appears to apply here that “restrictions on the exercise of property rights falling short of deprivations are rarely invalidated by the courts”.

232. I hold that the reason for the impairment of Lissan’s passing trade is of high public importance and weighs heavily in the calculus. That is so as, first, the bus gates and their resultant effect on through traffic are considered by the Commission, as competent authority, to be essential to the Scheme and second as the public interest in the Scheme is itself of high public importance – its objectives are described above as including the provision of enhanced walking, cycle, and bus infrastructure, thereby contributing to an efficient, integrated transport system and a low-carbon and climate-resilient Dublin city. It can hardly be doubted that the provision for efficient public transport in a notoriously traffic-congested city is of high public importance. In these regards, I refer to the Inspector’s report as to the purpose and public importance of the Scheme. There is no doubt that, as a matter of evaluative judgment, she and the Commission were entitled to the views thus expressed. In my view, the public interests and purposes underlying the Scheme are adequately strong to justify the application to it of the observation by Murray J that where a restriction on property rights in the public interest is imposed but no property is taken the case for excision of ‘injurious affection’ from the categories of compensation required by the Constitution may be particularly strong. 393

233. I used the phrase “any constitutional rights Lissan may have” and “ceteris paribus” above as difficult issues arise on the present facts in characterising the status of Lissan’s rights when considering the factors identified by Murray J as “the nature of the interest in play”, “the rights commonly attached to ownership of

393 §84. Lissan Coal v ABP & NTA [2026] IEHC 255

that interest” and “whether the ‘property’ right is in truth a right”. Here we are dealing with a peculiar

interest.

• First, Lissan’s private right, as frontager, to access the public road is unaffected by the Scheme.

• Second, and other than frontagers’ rights of access, the right to use the public road is not a right of private property but is a public right. At least as a starting point, Lissan’s right to use the public road is as an undifferentiated member of the public, rather than as a landowner.

• Third, what is at issue on present facts is not Lissan’s availing itself of that right. Its business will not be

imperilled by any inability of Lissan to use the public road.

• Fourth, what is at issue on present facts is the benefit to Lissan of the availing by third parties – the public, viewed as Lissan’s passing trade – of the right to use the public road. True, compensation in public nuisance would, but for statutory authority, probably be available in that regard394 but, at least in some degree, this factor distances the case from constitutional considerations.

• Fifth, the public will retain access to and use of all, or all but all, of the public road between the bus gates. What is in issue is its use of the stretch in question as through traffic. The public right of passage on the public highway to and from, and along the frontage of, Lissan’s property is, narrowly considered, unaffected. Though clearly they are in truth far less likely to do so, anyone who chooses to access the Filling Station can do so.

• Sixth, as has been said, there is here no taking of land from the Site - the “compulsory acquisition of all of

the elements that constitute a full property right in an asset”.

• Seventh, and as far as I am aware, authority to date does not establish a constitutional right or even a sub-constitutional right of property in passing trade – a right to the custom for the business on one’s property of the public passing by it on the public road, either considered of itself or as an aspect of the ownership of the land which benefits from such trade. Logically, that observation of itself is not necessarily determinative. There is a first time for every novel argument and some succeed. But given the well-known history of political controversy about such matters as bypasses of market towns and, more generally the fact that road schemes395 commonly and inevitably create “winners and losers” in respect, inter alia of passing trade, it is, at least empirically, striking that authority to date does not establish a constitutional right of property in passing trade.

• Eighth, the day is long gone when a constitutional right to run any business of one’s choice on a property was arguable such that its restriction required compensation – e.g. Central Dublin Development Association, Conway and Clonres.396 So, for example, planning permission can be refused, without

394 See above as to Wilkes, Gravesham, Colour Quest & Vasiliou.

395 Using that phrase colloquially.

396 Central Dublin Development Association v The Attorney General [1975] 108 I.L.T.R 69, Conway v An Bord Pleanála & Silvermount [2023] IEHC 178,

Clonres CLG v. An Bord Pleanála [2021] IEHC 303. Lissan Coal v ABP & NTA [2026] IEHC 255

compensation, for any of the reasons listed in the Third Schedule to the PDA 2000 – perhaps most notably permission for any material change of use of any structures or other land or for zoning reasons.397 I refer here also to Jones as cited above. Subject to law, inter alia, planning law, Lissan’s site remains capable of economic exploitation for uses not dependent on private-car-borne passing trade.

• Ninth, and if Lissan were to have any constitutional right, it appears to me that its height would be a right of action in tort for public nuisance on proof of special damage by reason of the loss of its passing trade.398 Of course, uncompensated deprivation of property in a right to litigate can be constitutionally unsound but, in any of a number of ways of looking at the matter, Lissan are not well-placed to complain here:

a) Through the Smyth lens of statutory authority, Lissan never acquires a right of action in public nuisance for loss of its passing trade. So it cannot be unconstitutionally deprived of that which it never has.

b) On the Hogan, Morgan & Daly analysis, Lissan’s right of action is in respect of pure economic loss which could be eliminated by statute without giving rise to constitutional concerns.

• Tenth, the State is correct that Lissan’s constitutional claim is based entirely on a species of injurious affection: an effect caused by matters occurring outside their land. And on the analysis of Murray J in ESB v Good, Lissan’s loss of passing trade is a form of injurious affection of its Site by way of loss of business depreciating the value of the Site. In that case it is, in the view of Murray J, a prime candidate for excision from the categories of compensation required by the Constitution where there is a legislatively imposed restriction on property rights. Speaking of the statutory provisions for compensation for injurious affection – ss. 63 and 64 of the 1845 Act, Murray J observed that that “traditionally, the exclusion of such losses has been tolerated by the law.” And the case for such exclusion, where no property is taken and the restriction is imposed in a weighty public interest, “is particularly strong.”

• Eleventh, it seems to me that appreciable weight may be given to the fact that the Constitution was not drafted and adopted, and has not thereafter been interpreted, in a vacuum of legal tradition and societal understanding of property rights. It seems to me legitimate therefore to enquire of the view taken in the common law of posited rights in passing trade. I have considered the law of public nuisance already. It would weigh in Lissan’s favour but for the matter of statutory authority. And more generally, the view of the common law is perhaps obscured by the long-established accretion of statute in the law of highways.

However, it seems notable that in the English case of Moto Hospitality399 it was said that:

“The Highways Acts do not give adjoining owners, even those whose businesses are directly linked to the needs of traffic, any guarantee or expectation that the highway system in their immediate area, or the flow of traffic on it, will remain unchanged. Traffic conditions in a particular area may

397 See generally, Simons on Planning Law, 3rd Ed’n (Browne) §9-32 et seq.

398 Leaving aside at this point the consideration earlier of the anomalous nature of that right.

399 Moto Hospitality Ltd v Secretary of State for Transport [2007] EWCA Civ 764, [2008] 2 All ER 718, [2008] 1 WLR 2822, [2007] NLJR 1426, [2007] RVR

247, [2007] All ER (D) 430 (Jul). Lissan Coal v ABP & NTA [2026] IEHC 255

be affected by all kinds of traffic orders or works, near or distant, properly carried out under the management powers of the highway authority. Such changes may be advantageous or disadvantageous to a particular traffic-based operation. They do not in themselves give rise to a claim to compensation, but must be accepted as part of ordinary business risk.”

• Twelfth, Lissan’s calling in aid s.68 of the 1845 Act and its ability, or inability to avail of compensation pursuant thereto, in advancing its assertion of unjust attack on its constitutional property rights is undermined by Murray J’s observations that is a mistake to reflexively convert pragmatic compromise between particular interests almost two centuries ago into constitutional entitlement, at least where the issue arises from the legitimate demands of the community as a whole.

• Thirteenth, a particular and considerably weighty, feature of this case is that, while Lissan’s knowledge when acquiring the property may not have been of the fact of, or potential for, the restrictions on its economic exploitation by the loss of through private traffic, it undoubtedly had such knowledge – or at very least such knowledge must be objectively attributed to Lissan - when they invested in developing the property as a Filling Station all but entirely dependent on the passing trade which they knew or ought to have known was at risk of the Scheme. As Murray J said, the touchstone for all property rights challenges is, whether there has been an unjust’ attack on the rights involved. The case for a constitutional right to compensation for the eventuation of commercial risks taken by an entrepreneur with its eyes wide open to such risks (or, for that matter, deliberately shut) is very much attenuated and is fatally so attenuated in this case.

Whatever their subjective mindset, objectively it must be considered that Lissan knowingly and deliberately took a commercial risk that the Scheme would end through private traffic on the Old Cabra Road. Indeed, for all we know, that may, in prospect and even in hindsight,400 have been a sensible commercial decision – but that was for them then, and not for me now, to judge. Yet now Lissan asserts a constitutional right to have the public pay for the eventuation of the very risk which they ought to have foreseen.

ECHR

234. Lissan calls in aid the Article 1 of the First Protocol to the ECHR. It provides as follows:

“ARTICLE 1 Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such

400 We know nothing of Lissan’s returns on investment to date or likely returns by the time the Scheme takes effect.

Lissan Coal v ABP & NTA [2026] IEHC 255

laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”401

235. In light of the clear guidance given in ESB v Good and the primacy of the Constitution over the ECHR in the identification of fundamental rights in Irish law, as stated in Simpson,402 I do not consider it necessary to consider the ECHR issue at length. I repeat here my consideration above of Cusack. Lissan cite James403 and Sporrong.404 But both were cases of expropriation, which is not the case here, and in James compensation was paid and the applicant failed. The NTA suggest that O’Sullivan McCarthy405 provides the better analogy. Given the Scheme will not prevent Lissan’s commercial exploitation of the Site but rather render certain types of exploitation unprofitable, it is notable that O’Sullivan McCarthy has been recently cited by the ECtHR in Getty v Italy406 for the proposition that “In the context of the general rule enshrined in Article 1 of Protocol No. 1 and of measures concerning control of the use of property, a lack of compensation is a factor to be taken into consideration in determining whether a fair balance has been achieved, but is not in itself sufficient to constitute a violation of Article 1 of Protocol No. 1”.

236. O’Sullivan McCarthy407 concerned Ireland’s temporary prohibition of part of the applicant’s licensed mussel farming activities.

• The ECtHR considered that to be an interference with the applicant’s right to the peaceful enjoyment of its possessions, including the economic interests connected with the underlying business. But it was not akin to a de facto expropriation. Rather, the interference was a “control of the use of property”, under the second paragraph of Article 1 of Protocol No. 1.

• The foreseeability of the interference (here, Lissan had such foresight) was relevant to the question of breach. Further resonating with Lissan’s position, the ECtHR described O’Sullivan McCarthy as “a commercial operator” which “cannot disclaim all knowledge of relevant legal provisions and developments. Rather, it can be expected to display a high degree of caution in the pursuit of its activities, and to take special care in assessing the risks that may attach to those activities.” And “the applicant company should have been aware of a possible risk of interruption of, or at least some consequences for, its usual commercial activities.”

• Also relevant was the fact that, as is appreciably so in the present case, the purpose of the interference was the protection of the environment. That, according to the ECtHR, is “an increasingly important consideration in today’s society, having become a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities”.

• As to interferences for such purposes, States have a wide margin of appreciation.

• It must be said that O’Sullivan McCarthy was concerned with the temporary and partial, not the permanent and entire closure, of a business. Nonetheless, the essential grievance in the case was that loss of profit went uncompensated. The Court was “not persuaded that the impugned interference in

401 Emphases added.

402 Simpson v Governor of Mountjoy Prison [2020] 3 IR 113.

403 James v United Kingdom (1986) 8 EHRR 123.

404 Sporrong v Sweden (1982) 5 EHRR 35.

405 O’Sullivan McCarthy Development Ltd v Ireland Application no 44460/16 (7 June 2018).

406 The J. Paul Getty Trust and Others v. Italy (App. No. 35271/19) [2024] ECHR 35271/19.

407 O’Sullivan McCarthy Development Ltd v Ireland Application no 44460/16 (7 June 2018). Lissan Coal v ABP & NTA [2026] IEHC 255

this case constituted an individual and excessive burden for the applicant company, or that the respondent State failed in its efforts to find a fair balance between the general interest of the community and the protection of individual rights.”

237. Leaving aside issues of the force of the ECHR in Irish law, I am far from convinced that in substance ECHR rights could support, to a contrary result, Lissan’s case which has failed in a constitutional context.

Interferences with Frontager’s Rights Without Compensation

238. I refer again to my view, explained above, that Daly, Keane, Edgington, and Cusack408 in suggesting, and in the case of Cusack upholding at least in certain circumstances and by reference to A1P1 ECHR, the acceptability of uncompensated interference, in the public interest, in the frontager’s private right of access to and from the highway, are capable of informing, at least in some degree, the acceptability of uncompensated interference, in the public interest, in the frontager’s passing trade. Revisiting that view in light of ESB v Good, O’Sullivan McCarthy and Getty v Italy seems to me to amplify that view as to both its Constitutional and ECHR aspects.

G5 - LIVELIHOOD

239. I do not see that the vista of Lissan’s asserted constitutional right to compensation improves on

viewing it through the lens of the derived personal “freedom” to “seek work” – as it was relatively recently

described by O’Donnell J in NHV.409 The question of the constitutional rights of companies is difficult. It seems they have constitutional rights of property,410 but that they may be less rigorously protected.411 While Lissan cites cases suggesting that the right to work or to a livelihood is a property right and cites Paperlink412 for its constitutional right to a livelihood, in that case the private company was merely held to be the means by which the counterclaimants – the directors and shareholders of Paperlink – exercised their personal rights. Lissan’s directors and shareholders are not parties to these proceedings and assert no such rights. Nor, I think, does the Employment Equality Bill case413 assist Lissan here. It upheld the rights of “employers” to earn their livelihoods - but not in terms addressing employers who happen to be companies. Of course, many are not companies. Rather, in that case, the right was identified as a personal right derived from Article 40 of the Constitution and repeatedly described as inhering in “citizens”. NHV is to similar effect –

408 Daly v Kilronan Windfarm [2017] IEHC 308 §98. Keane, Local Government in Ireland, 1st Ed’n (1982) p.75, Edgington, Bishop and Withey v Swindon

Corporation [1939] 1 KB 86, Cusack v Harrow LBC, [2013] UKSC 40, [2013] H.R.L.R. 26.

409 NHV v Minister for Justice [2017] IESC 35, [2018] 1 I.R. 246.

410 Iarnród Éireann v Ireland 1996] 3 IR 321, [1995] 2 ILRM 161. See Hogan, Whyte, Kenny & Walsh, Kelly: The Irish Constitution, 2018 §7.8.41. See also

fn99.

411 See Hogan, Whyte, Kenny & Walsh, Kelly: The Irish Constitution, 2018 §7.8.42 citing Digital Rights Ireland Ltd v Minister for Communications [2010]

IEHC 221 §51 and Smith v Considine [2017] IEHC 22 §12.

412 Attorney General and The Minister for Posts and Telegraphs v Paperlink Ltd, [1984] I.L.R.M. 373.

413 Re Article 26 and the Employment Equality Bill 1996 [1997] 1 IR 321. Lissan Coal v ABP & NTA [2026] IEHC 255

albeit confirming the right in non-citizens who are human beings. Companies are not citizens or human beings. I very much doubt that a personal freedom to seek work, found in NHV to inhere in the human condition and in the human dignity and freedom “of the individual” and to relate to the “development of the human personality” can be asserted by a company on its own behalf as a right of the company itself. Nor has authority to that effect been opened to me. Even if it can be asserted, on the facts of this case, I cannot conceive of a constitutional right of a company, under the rubric of the right to seek work, to compensation for losses caused to a company by the eventuation of commercial risks derived from regulatory measures adopted for the common good, which risks a commercial enterprise knowingly and voluntarily took – as did Lissan. Perhaps that is particularly so when the very purpose of a limited liability company is to legitimately distance commercial risks from its shareholders and the ultimate beneficiaries by way of provision of livelihood (at least in the case of companies such as Paperlink) of the intended commercial success of the company. A limited liability company is an intended repository of risk. If the State mitigates that risk it does so of political decision: not of constitutional obligation. There is no injustice or disproportion here. And as Costello J said in Moyne,414 the infliction of a pecuniary loss does not in itself establish that an infringement of the constitutionally protected right to earn a livelihood has taken place.

240. If, alternatively and as some authorities suggest, one views the right to a livelihood or to work as a property right and one to which companies are entitled, the State correctly observes that such analysis merely circles back to analysis of alleged unjust attack on constitutional rights of property – which adds nothing to the case of unjust attack I have already rejected.

241. However, even assuming the relevance of the right to earn a livelihood, it would be necessary to view through that prism the fact that Lissan will remain able to commercially exploit the Site – if not in a manner dependent on passing trade. In that light, it seems notable that in Nurendale415 McKechnie J said, that the right to earn a livelihood was “a narrow one. It is not a right to earn a livelihood from performing a particular job or task. It is merely a right not to be prevented from working.” This observation is analogous to that of Humphreys J in Jones that there is no constitutional right to profit maximisation.416 In that light the submissions of counsel for Lissan that its “livelihood” in its particular Filling Station business will be extinguished by the Scheme does not strike home as an unjust attack on constitutional rights in the connect of his acceptance that there are likely to be other commercial uses of the Site.417 Ultimately, he accepted that he had no constitutional right to a particular form of livelihood.418

242. None of the foregoing doubts the constitutional property right of an owner to the realisation of its commercial potential - within the limits of that property right as they have been described above – for example in Jones. My point is that I do not see that Lissan’s attempting to recast its constitutional rights as some form right to a livelihood adds to its case.

414 Moyne v Londonderry Port & Harbour Commissioners, [1986] IR 299.

415 Nurendale Ltd v Dublin City Council [2009] IEHC 588, [2013] 3 IR 417.

416 Jones v South Dublin County Council [2024] IEHC 301. See above.

417 Day 3 13:17 et seq.

418 Day 3 13:23. Lissan Coal v ABP & NTA [2026] IEHC 255

243. In any event, the facts which might (putting it no higher) support a constitutional claim either on the basis of property rights or livelihood are yet to eventuate: even assuming that when eventually the bus gates take effect it will appear that Lissan made a poor investment in the Filling Station (and for all we know, the contrary may appear), Lissan will be left with a Site capable of development and economic exploitation in other ways and having a monetary value. And “there is no right to earn a particular livelihood” – Nurendale.419 In similar vein, it seems to me, the constitutional right to a livelihood, whatever it may consist of, does not entitle a company to exploit its land for the most profitable purpose of its choosing. All other issues aside, it certainly cannot be seen at present that any infringement by the Scheme of Lissan’s right to

earn its livelihood is “disproportionate” - Nurendale. Lissan’s case in this regard fails, if on nothing else, on

the facts.

244. I should record that Muldoon420 was cited to me as to the livelihood issue but I do not consider it necessary to address it here.

G5 - UNJUST ATTACK ON CONSTITUTIONAL RIGHTS - CONCLUSION

245. For all the foregoing reasons and assuming that Lissan will go uncompensated for its loss of passing trade and the resultant failure of its Filling Station business, I see in the Impugned Decisions no unjust attack on Lissan’s constitutional rights. It follows that the Impugned Decisions will not be quashed for unjust attack on Lissan’s constitutional rights and Lissan may safely be left to such rights to compensation, if any, as it may establish at law.

GROUNDS 5 & 8 - CONCLUSION

246. For the reasons I have given, I reject Ground 5 as it asserts

• interference with Lissan’s private right, as a frontager, of access and egress between the Site and the public road. The assertion fails on the facts. The Scheme will not interfere with such access and egress between the Site and Old Cabra Road.

• interference without provision for compensation, with Lissan’s right to enjoy the public right of way as access to the Site and its Filling Station business for themselves or their invitees/customers. There will be no substantial interference with the general right of such access – it will remain, if only via Glenbeigh Road. The Scheme will cause a specific and substantial interference with the benefit the Filling Station business derives by way of custom from through private traffic along Old Cabra Road.

419 Nurendale (t/a Panda Waste Services v Dublin City Council [2013] 3 IR 417.

420 Muldoon v. The Minister for Environment & Local Government [2023] IECA 61. Lissan Coal v ABP & NTA [2026] IEHC 255

However, even assuming that the common law and statute will provide no compensation for that particular interference, that interference is not an unjust attack on Lissan’s constitutional and/or ECHR rights to property.

• As a matter of constitutional law, therefore, o that Lissan was not listed in the schedule to the CPO as a person from whom land is to be acquired or whose rights are to be interfered with or restricted is not unlawful, whether or not Lissan is correct in asserting that its absence from such list precludes their claiming compensation under s.63 or s.68 of the 1845 Act or otherwise.

o Lissan can be safely left to whatever rights to compensation for such interference, if any, as the common law (including the law as to public nuisance) and statute may provide. If it has a good claim, well and good. If not, recourse to the constitution will not avail it.

247. It follows that it is unnecessary to consider Ground 8 – which can be dismissed. No question arises on the facts of this case of the legislative invalidity of any statute or rule of statutory authority in public nuisance by reason of their failing to provide for compensation, as no attack on constitutional rights is at issue which, if left uncompensated, would be unfair.

248. I should for completeness refer to the acceptance by counsel for Lissan, as to the so-called defence of statutory authority in the law of public nuisance, that he didn’t think he had “much prospect of success to be quite frank in terms of establishing that the defence of statutory authority is unconstitutional but I need to make the point so that I adopt a comprehensive approach.”421

249. Grounds 5 and 8 are dismissed.

GROUND 7 – FAILURE TO HOLD ORAL HEARING

250. Core Ground 7 asserts that the Impugned Decisions are invalid as

“The reasons for which the Board decided not to hold an oral hearing as to the applications were irrational as the Board “appears to have concluded” that written information submitted with the applications were sufficiently detailed to allow their full and proper assessment.”422

The Particulars of Ground 7 add two further distinct grounds as follows:

“Having regard to the devastating impact of the proposed road development on the Applicant's lands

421 Day 1 15:12.

422 I have rationalised the wording of this Ground without changing meaning. Lissan Coal v ABP & NTA [2026] IEHC 255

and business, the decision not to hold an oral hearing was made in breach of fair procedures and/or constitutional justice.”

“Furthermore, the Board failed to inform the Applicants of the reasons for not acceding to their request for an oral hearing.”

G7 - LEGISLATION

251. §5(2) of the Third Schedule of the Housing Act 1966 prohibits confirmation of a CPO “in so far as it relates to any land in respect of which an objection is duly made by any of the persons upon whom notices of the making of the order are required to be served” without “a public local inquiry into such objection and until he has considered such objection and the report of the person who held the inquiry”.423 However, as to functions transferred from the Minister to the Commission, and by s.218(3)(b) PDA 2000, the reference to a “public local inquiry” is now read as if to an oral hearing under s.218 and, by s.218(1), the Commission has an “absolute discretion” whether to hold an oral hearing as to the approval and EIA of a proposed road development.

G7 - FACTS

252. The facts are set out above. Briefly, Lissan’s submission of 30 August 2022 to the Commission in the S.51 Process, inter alia,

• invoked their multi-million-euro investment in the Site.

• asserted that the Scheme would cause a 92% drop in passing traffic along Old Cabra Road, which would render the Filling Station unviable. Without compensation, that would be an unjust and disproportionate interference with their constitutional rights.

• did not elaborate as to alternatives to the bus gates or as to the effect their omission on the Scheme.

• called for an oral hearing to “discuss” the significant, adverse, catastrophic and irreversible impacts of the proposed Scheme on the Applicants’ business/commercial interest in the Site.

253. The NTA’s reply dated 31 January 2023424 inter alia

• elaborated at length on the bus gates as fundamental to the entire Scheme and the exploration in detail of alternatives, which had been found inadequate to the public interest and objectives pursued by the Scheme.

• acknowledged the impact on the Filling Station as identified in the EIAR.

423 Exceptions are listed but are not here relevant.

424 NTA Observations on the Proposed Scheme Submissions and CPO Objections (January 2023) §4.57. Lissan Coal v ABP & NTA [2026] IEHC 255

It must be recalled at this point that the EIAR “expected that this business would no longer be able to operate successfully.”

254. By reply of 8 June 2023, the Commission refused an oral hearing – invoking its absolute discretion in that regard - and stated its conclusion that the case can be dealt with adequately through written procedure. It gave no further reason.

255. But it invited Lissan to make further submissions – which Lissan did, dated 12 July 2023. They

• repeated their previous arguments by appending documents previously tendered to the Commission.

• asserted that they wanted no interference with their operations and believed it clear that alternatives to the bus gates were adequate.

• asked, “Considering this seismic impact to existing commercial operations” and the prospect of the loss, eradication, closure, of the business by removal of its customer base, for the omission of the bus gates and for continued unrestricted public vehicular access to the Filling Station.

• Again sought “an oral hearing to discuss the significant, adverse and irreversible impact the subject scheme has on our client's commercial interest”.

256. The Commission did not revisit or provide additional reasons for its decision not to hold an oral hearing.

G7 – LISSAN’S POSITION

257. The Commission’s “absolute discretion” whether to hold an oral hearing must be exercised in accordance with the principles of fair procedures. Parties whose rights are affected by a decision must have adequate opportunity to present their case. This may require an oral hearing in cases involving complex or contentious issues. This is one such case, given the unique impact of the Scheme on Lissan.

258. Given the gravity of Lissan’s contention that the Scheme will devastate their business and property rights, including the likely closure of the Filling Station, an oral hearing was necessary to ensure that their concerns were fully ventilated and considered. The issues raised in Lissan’s submissions, including the impact of traffic management measures and the alleged interference with their property rights, are complex and required detailed examination that could only be achieved through an oral hearing. Furthermore, the lack of an oral hearing resulted in the Commission’s approving the Scheme without considering reasonable alternatives to the bus gates having regard to their impact on Lissan.

Lissan Coal v ABP & NTA [2026] IEHC 255

259. The written process was inadequate to address those complex and contentious issues. Lissan were denied cross-examination of the NTA’s witnesses and the opportunity to present oral evidence, which would have been critical in challenging the conclusions of the EIAR and the NTA’s observations. The Commission’s

decision not to hold an oral hearing was disproportionate given the significant impact of the Scheme on the Lissan's lands and business, as acknowledged in the EIAR.

260. The failure to hold an oral hearing resulted in the Inspector misunderstanding the consequences and the impact of the Scheme on Lissan, in circumstances where she concluded that the effect was that the Filling Station could continue to trade if the Scheme were implemented, albeit not as successfully as before.

261. The Commission’s generic and conclusionary statement dated 8 June 2023 fails to provide any or specific reasons for the decision not to hold an oral hearing, thereby breaching the duty to give reasons.

G7 - OPPOSITION

262. The opposition to Ground 7 is as follows.425

a) S.218(1) PDA 2000 gives the Commission an absolute discretion whether to hold an oral hearing. It is a wide and flexible discretion - though it must be exercised fairly. Waterville Fisheries426 is cited.

b) Ground 7 is based on an incorrect assertion of the inadequacy of the information before the Commission for purposes of the s.51 Approval and the CPO Decision. That adequacy is primarily for the expert judgement of the Commission and that judgement is reviewable as to merit only for irrationality. Irrationality is not made out on the evidence. The assertion that the Commission exercised its absolute discretion whether to hold an oral hearing in a manner contrary to fair procedures is baseless. The conclusion that an oral hearing was required does not follow from the premise of the impact of the scheme on Lissan’s land and business.

c) Lissan has identified no conflict of fact for the resolution of which fair procedures required an oral hearing.

d) Lissan’s position is self-contradictory in asserting that the Commission gave no reasons but also that its reasons were irrational.

e) The Commission’s reason for not holding an oral hearing was clear in its context, adequate and was communicated to Lissan on 8 June 2023 – the Commission was satisfied that “this case can be dealt with adequately through the written procedure”. That was supported by its consideration of the

425 The Board’s submitted position was extremely “wordy”. I think what follows here adequately expresses it.

426 Waterville Fisheries Development Ltd v Aquaculture Licenses Appeals Board, [2014] IEHC 381. Lissan Coal v ABP & NTA [2026] IEHC 255

materials before it, including the EIAR, Lissan’s submissions and the NTA’s observations thereon.

f) Part of the context in which its reasons were to be understood was the fact that the CPO and Scheme did not involve any acquisition of any of the Site or any direct interference with Lissan’s rights.

g) As to fair procedures, the validity of the refusal to hold an oral hearing falls to be considered in light of the Commission’s inviting Lissan to make a further written submission, which they did.

h) Ground 7 is fallaciously premised on the view that that an opportunity to make further written submissions (as afforded in the Commission’s letter refusing an oral hearing) is legally a lesser form of participation than a submission at an oral hearing.

i) The Commission invokes its consideration of Lissan’s case in the Inspector’s reports and the Commission’s decisions.

I may as well say now that this is to my mind anachronistic and more or less irrelevant given the

decision to refuse an oral hearing preceded the Inspector’s reports and the Commission’s decisions and the validity of that refusal and the reasons given for it fall to be considered as at the date of the refusal.

j) Lissan did not, in their submission to the Commission dated 12 July 2023, complain of the inadequacy of the reasons for refusal of an oral hearing given in the Commission’s letter of 8 June 2023. Therefore they may not argue that the Commission’s reasons were inadequate. Alternatively, this consideration is relevant to the Court’s discretion to refuse relief on Ground 7.

G7 - DISCUSSION & DECISION

263. As recently discussed in Crofton,427 citing, inter alia, Mallak,428 an “absolute discretion” confers no

arbitrary power. It is “beyond question” that a public body exercising even an “absolute discretion” has “…. a

duty to act fairly and judicially in accordance with the principles of constitutional justice” – Talla.429 Such a

public body “must comply with certain basic requirements of fairness, and accord with the statutory parameters within which the underlying power is conferred” and “the general principles that govern the review of administrative decision making are applicable” – Cleary.430 It follows that an absolute discretion does not oust the court’s supervisory jurisdiction in judicial review of the decision, which must be made bona fide and must be rational, reasonable, and within the legislative framework that enables the decision to be made – FoIE (Plunkett), Egan, and Stapleton.431 In truth, in light of those principles, an “absolute discretion” is not (at least usually) quite what it says on the tin.

427 Crofton Buildings Management CLG v. An Bord Pleanála [2022] IEHC 70.

428 Mallak v Minister for Justice, Equality and Law Reform, [2012] 3 I.R. 297, cited at Simons, Planning Law, 3rd Ed’n (Browne) §6-340.

429 Talla v Minister for Justice [2020] IECA 135 – see also Simons, Planning Law, 3rd Ed’n (Browne) §6-339.

430 Cleary Composition and Shredding Limited v. An Bord Pleanála [2017] IEHC 458 (High Court, Baker J.).

431 Friends of the Irish Environment Ltd v An Bord Pleanála & Plunkett [2018] IEHC 136; Egan v An Bord Pleanála & Athlone Town Council [2011] IEHC

Lissan Coal v ABP & NTA [2026] IEHC 255

264. Waterville Fisheries432 is to similar effect. It too was a case in which the Respondent exercised a statutory “absolute discretion” against holding an oral hearing. Hogan J cites, inter alia, Mallak in holding that the Aquaculture Licenses Appeals Board (“ALAB”) must give reasons for its decision not to hold an oral hearing or, at least, be prepared to justify its failure to give such reasons. Hogan J was considering for purposes of an application for leave to seek judicial review, whether there were substantial grounds to contend that ALAB’s decision should be quashed. He found a failure to give reasons for refusing to hold an oral hearing and thereby ALAB “certainly erred in law”.

265. However, Hogan J also considered it necessary to consider whether in substance ALAB had improperly declined to hold an oral hearing when it ought to have done so? He found that, as there was no conflict of fact central to the outcome of the decision-making process, ALAB was entitled to conclude that no oral hearing was necessary. There was “no nexus” between the procedural failure to give reasons –

“important and significant as it admittedly is – and the ultimate decision.” In those circumstances – in which

there was no underlying obligation to hold such a hearing - the failure to give reasons for the decision not to hold an oral hearing was not likely to render the substantive decision invalid or liable to be quashed and he refused leave to seek judicial review. That this was a refusal of even leave is notable.

266. In my view, the Commission failed to give any meaningful reason for its refusal to hold an oral hearing and breached its duty to do so. That the matter can be adequately dealt with by the written procedure is a merely conclusionary statement and is an inevitable basis of and necessary precondition to every such refusal. I will hear the parties as to whether I should grant declaratory relief in this regard.

267. The Commission’s position that part of the context in which its reasons for refusing an oral hearing were to be understood lay in the fact that the CPO and Scheme did not involve any acquisition of any of the

Site or any “direct” interference with Lissan’s rights is formalistic and unreal. Had there been a real dispute

but that the Scheme would shut down the Filling Station, I do not see how this context would have rationally weighed in a decision to hold or not hold an oral hearing.

268. The submission that Ground 7 is fallaciously premised on the view that that an opportunity to make a further written submission is legally a lesser form of participation than a submission at an oral hearing is itself fallacious. Written submissions are a lesser form of participation than participation in all its aspects (not just making submissions) at an oral hearing. That need not imply in a given case that written procedure is inadequate in law. But it is the very reason why in some cases oral hearings may be necessary and, indeed, why trials are held. The true question is whether, in a particular application, written submissions, though a lesser form of participation, nonetheless satisfy the context-specific requirements of fair procedures.

1; Stapleton v ABP & Savona [2024] IEHC 3.

432 Waterville Fisheries Development Ltd v Aquaculture Licenses Appeals Board, [2014] IEHC 381. Lissan Coal v ABP & NTA [2026] IEHC 255

269. I reject the Commission’s submission that the fact that Lissan did not, in their submission to the Commission dated 12 July 2023, complain of the inadequacy of the reasons for refusal of an oral hearing given in the Commission’s letter of 8 June 2023 debars them from arguing that the Commission’s reasons were inadequate. Simply put, the Commission must be taken to be fully aware of its duty in law to give reasons – it gives reasons in every decision it makes. It must long since know that it must give real, not

formalistic, reasons for even those decisions within its “absolute discretion”. It should do so as of course. Lay

participants in planning procedures – even advised by planning consultants – need not correct the Commission’s legal homework or offer it repeated bites at the cherry. In any event, Lissan did repeat their request for an oral hearing in their submission dated 12 July 2023. Even if they did not make a legalistic “reasons” point, they thereby invited the Commission to reconsider its decision as to holding an oral hearing and give reasons accordingly. The Commission did not take up that invitation. It was not obliged to take it up but cannot shut out Ground 7 on this basis – nor does it weigh appreciably as to discretionary refusal of relief.

270. Logically as to fair procedures,

• The opportunity to make a further written submission in the future cannot validate a present decision to refuse an oral hearing if, but for that further written submission, an oral hearing would have been required. In other words, given the inherent differences between written submissions and oral hearings, the opportunity to make a further written submission cannot in logic make a difference between holding and refusing an oral hearing.

• The Commission having refused an oral hearing on the information available to it, its giving Lissan opportunity to make a further written submission should not weigh as to the legal adequacy of that refusal - as the content of the further written submission cannot have informed the Commission’s refusal.

• If the opportunity to make a further written submission is to weigh in a decision whether to hold an oral hearing, the Commission must defer its decision in that regard pending receipt of that written submission. This the Commission did not do – despite being invited to reconsider its decision.

I do not say the Commission was obliged to reconsider its decision. But I do consider its invitation to make a further written submission irrelevant to the legality of its refusal, by its letter of 8 June 2023, of an oral hearing.

271. I should make clear that I am in no way critical of the invitation to make a further written submission. It can only have been to Lissan’s benefit in the process. But it cannot be read either as a substitute for an oral hearing which otherwise would have been required or, for that matter, as an admission that an oral hearing would otherwise have been required.

Lissan Coal v ABP & NTA [2026] IEHC 255

272. However, as I have said, Hogan J in Waterville Fisheries, having found the reasons given for refusing an oral hearing inadequate, nonetheless thought it necessary to consider whether in substance ALAB had improperly declined to hold an oral hearing. He found that, as there was no conflict of fact central to the outcome of the decision-making process, ALAB was entitled to conclude that no oral hearing was necessary. And he refused relief accordingly.

273. I confess to some unease at the possibility that such a course, if routinely taken, would undermine the duty to give reasons. The duty to give reasons is distinct from the legality of the substance of the

decision for which reasons must be given. It is a duty of high importance to the credibility of and public confidence in administrative decisions. As was said of judgments in Flannery433 and English434 and as is equally true of decisions of the Commission: “Reasons are required if decisions are to be acceptable to the parties and to members of the public” and “Transparency should be the watchword.” Reasons are essential to the democratic validity of, and public acceptance of decisions by, those “expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.” – Balz.435 Further, reasons retrospectively given or inferred at trial of judicial review tend both to undermine the duty to give them in a timely fashion and to generate wasteful litigation. As a decisionmaker must have

reasons for its decisions – Mallak436 (an “absolute discretion” case) is authority that decisions made without

having reasons are “the very definition of an arbitrary power” - it is not usually overburdensome to require that those reasons be stated as to the main reasons on the main issues. It is merely a duty to record reasons which, ex hypothesi, the decisionmaker has in fact relied upon – see Stapleton437 and Ballindooley.438

274. In addition, the duty to give reasons has a further and very important purpose: it improves the substantive quality of decision-making. As was said of judgments in Flannery and English and as is equally true of decisions of the Commission:

“A requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.”

275. Further, while its deployment will not always be appropriate, inter alia given the risk of retrospective reasoning, the Court has at its disposal a limited remedy for failure to give reasons which may be proportionate to a particular case: remittal to give reasons. See for example, Ballindooley,439 RPS Consulting,440 and Krupecki.441

433 Flannery v Halifax Estate Agencies [2000] 1 All ER 373, [2000] 1 WLR 377, EWCA.

434 English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 3 All ER 385, [2002] 1 WLR 2409.

435 Balz v An Bord Pleanála, Cork County Council and Cleanrath Windfarms [2019] IESC 90, [2020] 1 I.L.R.M. 367.

436 Mallak v. Minister for Justice and Equality [2012] IESC 59.

437 Stapleton v ABP & Savona [2024] IEHC 3.

438 Ballindooley Developments v the Minister for Housing, the OPR & Galway City Council [2025] IEHC 109

439 Ballindooley Developments v the Minister for Housing, the OPR & Galway City Council [2025] IEHC 109.

440 RPS Consulting v Kildare County Council [2017] 3 IR 61 §16 & 109.

441 Krupecki v The Minister for Justice [2019] 3 IR 67. Lissan Coal v ABP & NTA [2026] IEHC 255

276. I do not consider that the refusal of an oral hearing in this case falls into the category of decision for which the reasons are so obvious that they need not be given. In my view such cases will not be the norm – though the closer the situation is to obvious, the terser, generally, the reasons given may be.

277. Notwithstanding the foregoing considerations, I consider this to be a case in which the course taken in Waterville Fisheries is appropriate as the substantive position seems to me to be particularly clear on the facts. I bear in mind also that Star Homes442 illustrates that "There is no general right to an oral hearing" and one cannot, as a matter of fair procedures and even in a contentious matter, insist on an oral hearing in order simply to reiterate what one has already submitted in writing. Though the analogy is not precise, Wexele,443 as to the entitlement to make submissions assists here – “if a complaint is made that an applicant was shut out of making a submission, that party must show that they have something to say. What they have to say must not be something that has already been said. Nor can it be a reiteration in different language of an earlier submission. If a party is to meet the onus of alleging unfairness by the Board in cutting them out for making a submission they must reveal what has been denied them, what they have to say and then discharge the burden of showing that it had been unjust for the Board to cut them out of saying it.”

278. Not merely in this case was there no conflict of fact central to the outcome of the decision-making process and not merely is the Commission correct in asserting that Lissan have failed to identify such a conflict, it is clear that there was no conflict as to the two specific issues as to which an oral hearing was sought. I accept the observation of counsel for the Commission that, at least in this case and as to certiorari, that is the ”critical point”.444

279. As was said in Stapleton, the fairness of a refusal of an oral hearing must be considered by reference to the information before the Board at the relevant time – unaffected by hindsight. On the information before the Commission when it refused an oral hearing, Lissan asserted that the bus gates would put the Filling Station out of business. The NTA, via its EIAR, agreed that they would put the Filling Station out of business. There was no dispute on that issue such as to require an oral hearing. The fact that the Inspector later euphemised the EIAR in this regard is not relevant to the validity of the earlier decision not to hold an oral hearing.

280. Somewhat charitably taking it that the alleged inadequacy of consideration of alternatives in the EIAR was a basis on which an oral hearing was sought by Lissan, the reality is that, beyond assertion, Lissan offered no alternative analysis of the issue and suggested no alternatives as allegedly better. The cry of “alternatives” – often, if sotto voce, take someone else’s land, not mine - is endemic in all procedures

442 Star Homes (Midleton) Ltd v Pensions Ombudsman [2010] IEHC 463.

443 Wexele v An Bord Pleanála [2010] IEHC 21.

444 Day 2 12:24. Lissan Coal v ABP & NTA [2026] IEHC 255

involving such CPOs and schemes to which objection is taken. If the mere cry sufficed, an oral hearing would be obligatory in almost every such process. Absent a positive case put by Lissan to the Commission as to alternatives to the Scheme, I cannot see that an oral hearing was required here as to the issue of alternatives. In saying so, I am not to be understood as asserting that had such a positive case been put an oral hearing would have been, in law, required – that question would turn on the facts of such a case in view of the wide and flexible discretion whether to hold an oral hearing identified in Waterville Fisheries.

281. However, there is another, and fundamental difficulty with Lissan’s reliance in Ground 7 on consideration of alternatives to the bus gates as a basis of challenge. Lissan is strictly obliged to give detailed particulars of the Ground to a point of acceptable clarity. Clearly, it is basic in pleading unlawful failure to hold an oral hearing to identify the subject-matter which allegedly required an oral hearing. Lissan’s amended statement of grounds, as counsel for the Commission observed,445 doesn’t even mention the issue of alternatives. I reject Ground 7, as argued by reference to consideration of alternatives, as not pleaded.

282. For these reasons I reject Ground 7 as to the refusal to hold an oral hearing inasmuch as certiorari is sought on that account. I do so despite what I find to be the inadequacy in law of the reasons given by the Commission in that regard – as to which I will hear the parties on the question of declaratory relief.

GROUND 3 – CPO FAILS TO LIST BUS GATES’ INTERFERENCE WITH PUBLIC RIGHT OF WAY

283. Core Ground 3 asserts that both Impugned Decisions are invalid insofar as they

“provide for Bus Gates restricting vehicular traffic accessing Old Cabra Road but make no provision for any interference with or restriction of the public right of way at that location and in particular, that public right of way is not referred to in the CPO and, in particular, is not included in either Sections A or B of Part III to the Schedule to the said CPO.

Further, or in the alternative, the Board erred in fact or law in making the s.51 Approval which provides for a Bus Gate at this location when the NTA had no authority pursuant to the CPO to interfere with or restrict the public right of way at this location.446

284. The particulars assert that the CPO, Schedule, Part III, Section B lists interferences with and restrictions of public rights of way but does not list the interference with and restriction of the Old Cabra Road public right of way by the bus gates for which the scheme approved by the s.51 Approval provides.

445 Day 2 11:50.

446 I have rationalised the wording of this Ground without changing meaning. Lissan Coal v ABP & NTA [2026] IEHC 255

G3 - LISSAN’S POSITION

285. Lissan stress s.213(2)(a) PDA 2000 because, they say, its effect is that

• by s.213(2)(a)(iii) PDA 2000, the NTA can “restrict or otherwise interfere with, permanently or temporarily, by agreement or compulsorily, any easement, way-leave, water-right or other right over or in respect of any land …”.

• a public right of way is a “right over or in respect of any land” within the meaning of s.213(2)(a)(iii).

• it follows that the NTA’s exercise of the power to restrict or otherwise interfere with a public right of way, is an “acquisition of land” within s.213(2)(a).

• a CPO must identify every “acquisition of land” it seeks to effect – including any restriction of or interference with a public right of way.

• as it did not identify the acquisition or restriction of or interference with the public right of way over the Old Cabra Road by the bus gates either side of the Site, the CPO is ineffective to permit such acquisition, restriction or interference.

286. Lissan say

a) The NTA has given no adequate explanation as to why, by the CPO Schedule, Section B, Part III, it listed and provided for the restriction of some public rights of way but not others. Whereas the NTA say that the CPO does not restrict or interfere with the public right of way as the bus gates are effected by signage / traffic management measures, Lissan say that the means of interference – even if non-physical – is irrelevant. The effect is interference with the public right of way at the bus gates.

b) NTA’s Opposition concedes that s.213(2)(a)(iii) permits restriction of rights over extends to a public right of way. It reads: “The NTA is authorised by the CPO, as confirmed by the Board, to restrict or otherwise interfere with the public rights of way described in Part III (Section B) of the Schedule.” 447

c) As the restriction to be effected by the bus gates directly impacts on Lissan’s business by removing over 90% of the current private traffic from the Old Cabra Road, thereby substantially reducing the value of the Site, the NTA should have proceeded by way of s.213(2)(a)(iii) as to that restriction.

d) In failing to acknowledge that the bus gates will interfere with the public right of way and are an acquisition of land within s.213 PDA 2000, the NTA acted without lawful authority and in an unconstitutional manner (as the restriction is a disproportionate interference with the Applicants’ property rights in the Site and the business thereon) and so the Commission acted unlawfully in approving the Scheme and confirming the CPO.

447 §37. Lissan Coal v ABP & NTA [2026] IEHC 255

G3 - OPPOSITION

287. The Respondents’ positions are as follows.

a) The premise of Ground 3 is incorrect. The bus gates will not extinguish, interfere with or restrict the public right of way within s.213(2)(a)(iii) PDA 2000. The public right of way remains. The bus gates involve traffic management measures which are ▪ effected by road markings and signage only, involving no physical works on or to the public road ▪ the subject of the s.51 Approval.

So the bus gates did not need to be effected by CPO or listed in the CPO.

b) On Lissan’s argument, the implementation of any road signage or road markings to regulate the manner in which a road is used would require to be effected by CPO via s.213(2)(a)(iii) PDA 2000 (or another CPO power).

c) Ground 3 does not go to the validity of the Impugned Decisions as ▪ the S.51 Approval does not authorise the execution of the Scheme to any extent the NTA lacks the legal right to execute it. So, even if Lissan is correct in asserting that there is no CPO for interferences with the public right of way and if there must be a CPO for those interferences to occur, neither Impugned Decision is invalid. Rather, the complaint, if correct, goes only to the implementation of the Proposed Road Development, not to the validity of the Impugned Decisions.

▪ if effecting the bus gates requires that the CPO have listed their restriction of or interference with the public right of way, the only “harm” to Lissan would be if, in fact, the project is delivered as described in the Scheme - which on Lissan’s case cannot be done without a CPO.

d) In reality, Lissan’s challenge to the Impugned Decisions concerns the indirect, non-tortious effect of the bus gates on their business - which effect entails no injury to any property right and would give rise to no cause of action, including in nuisance. Nonetheless, Lissan seeks compensation, in circumstances where, on their own case, they can’t bring themselves within any established entitlement to compensation.

G3 - DISCUSSION/DECISION

288. I have in effect already explained above why Ground 3 fails.

289. In deference to the arguments, I have set out the parties’ positions above. I accept that the NTA has given no adequate explanation as to why, by the CPO Schedule, Section B, Part III, it listed and provided for some restrictions of some public rights of way but not others and, in particular, not the bus gates. And while

Lissan Coal v ABP & NTA [2026] IEHC 255

I do not rule out that an explanation may be possible, it has failed to explain the difference in law it says ensues from its distinguishing the effects, on the one hand, of the signage and road markings which constitute the bus gates from, on the other hand, physical interferences with the public road. Pending such an explanation it seems to me that it is the effect, not the means, that determines whether a public right of way is obstructed, restricted or interfered with. I also find unconvincing the proposition that Ground 3 does not go to the validity of the Impugned Decisions.

290. But, in the end, Ground 3 essentially turns on the question whether Lissan is correct in asserting that s.213(2)(a) PDA 2000 encompasses, in the phrase “acquisition of land”, the restriction of or interference with a public right of way which must be listed in the CPO. I have earlier in this judgment explained why, in my

view, it does not. In short, the bus gates’ interference with – indeed partial obstruction of – the public right

of way along the old Cabra road is not an acquisition of land and does not need to be listed in the CPO. Accordingly, the absence of such a listing in the CPO is no impediment to the provision in the s.51 Approval for the bus gates or to their being effected on foot of such approval. Their authorisation consists in the S.51 Approval. Ground 3 therefore fails.

291. If needs be I would refuse relief on Ground 3 on discretionary grounds. Though clearly highly exercised by the issue of the effect of the bus gates as an obstruction or restriction of, or an interference with, the public right of way, as reflected in their submissions in the S.51 Approval process, Lissan never asked the Commission to modify, pursuant to s.217C PDA 2000 and/or Art 5(1)(a) of the 3rd Schedule to the Housing Act 1966, the CPO schedules to record what it (as I have held, incorrectly) now asserts is the acquisition of Lissan’s land, within the meaning of s.213(2)(a) PDA 2000, necessary to the bus gates’ obstructions of the public right of way.448 Indeed, it is very doubtful the Commission could have done so save with the consent of Lissan as the conventional wisdom at least in CPO law has been, for fairly obvious reasons, that while the Commission could extract and exclude scheduled lands from a CPO, lands cannot ordinarily be added. Lissan cannot now have the CPO quashed on the basis that the Commission did not do what it likely could not have done save on Lissan’s request - a request Lissan never made.

448 See Submission by ACP Day 2 11:44. Lissan Coal v ABP & NTA [2026] IEHC 255

GROUND 4 – CPO FAILS TO PROVIDE FOR INTERFERENCE WITH OR RESTRICTION OF PUBLIC RIGHT OF WAY

292. Core Ground 4 asserts that

If (which is disputed) the public right of way at Old Cabra Road can be interfered with or restricted pursuant to the CPO “and in so far as the Applicants' private right of access to the Land may be affected by the CPO,”

the CPO Confirmation is invalid and was made in breach of fair procedures/natural and constitutional justice where the Applicants were not afforded an opportunity to make submissions in the CPO Confirmation application, having regard, inter alia, to the very significant adverse effect on the Land and the business conducted thereon acknowledged by the NTA’s EIAR in its S.51 application.449

G4 - LISSAN’S POSITION

293. Insofar as the NTA has power under s.213(4) PDA 2000 to restrict the public right of way at Old Cabra Road pursuant to a CPO, but have not provided for such restriction in the CPO, and insofar as Lissan’s private right of access to the Site is likely to be affected by the CPO, the Commission's decision to confirm the CPO is invalid and made in breach of fair procedures and/or natural and constitutional justice in circumstances where Lissan had no opportunity to make submissions in the CPO confirmation application having regard, inter alia, to the very significant adverse effect on the Site and Filling Station acknowledged by the NTA in its EIAR in the s.51 application.

G4 – DECISION

294. Given the findings I have already made, Ground 4 can be dealt with briefly. It fails for the following essential reasons:

• As I have held, there is no basis in law, in the terms of the Scheme, in fact, in evidence or on any other basis, for the assertion that Lissan’s private right of access or egress, as a frontager between the Site and the public highway will affected by the Scheme.

• Insofar as concerns passing trade and obstruction by the bus gates of the public right of way, as I have held, that is not an acquisition of land, from Lissan or anyone else and need not be listed in the CPO.

The authority for the bus gates derives from the S.51 Approval and in the s.51 process Lissan had full opportunity to be heard in its opposition to the bus gates and in fact made submissions of 30 August 2022 and 12 July 2023.

449 I have rationalised the wording of this Ground without changing meaning. Lissan Coal v ABP & NTA [2026] IEHC 255

295. A further consideration, raised by the Commission, arises. On any objective view and at all material times, Lissan well knew or ought to have known of the likely effect of the Scheme on the viability of the Filling Station. They made submissions complaining of it in the s.51 process. They complain now that they were shut out of the CPO process as to making such submissions. Yet they never applied to the Commission to make submissions in the CPO process – indeed for the very reason, according to counsel for Lissan, that Lissan was not affected by the CPO.450 Still less did Lissan make to the Board the argument on which their

case hinged at trial – that, with reference to S.213(2)(a) PDA 2000, an “acquisition” of the public right of way

along Old Cabra Road had been incorrectly omitted from the CPO Schedule. I find it difficult to see that Lissan can complain of being denied that which they did not seek. Accordingly, if needs be, I would refuse relief on Ground 4 on discretionary grounds.

GROUND 6 – S.51 APPROVAL – BUSINESS VIABILITY IMPACTS

296. Core Ground 6 asserts that

is invalid the S.51 Approval as vitiated by material error of fact and/or law in so far as the Board adopted its Inspector's conclusion that "[t]he [Go] station can still be accessed and maintain operations albeit not as conveniently as at present"

This was contrary to the Applicants' submissions and flew in the face of the information and acknowledgement in the EIAR to the contrary effect concerning the impact on the Applicants.

Moreover, the said material error of fact was taken into account in the Board’s EIA in so far as it concluded that "Following mitigation, no residual significant long-term negative impacts on the environment or sensitive receptors will occur."

Additionally or alternatively and on the basis of the foregoing, the conclusion that Lissan’s business would be able to continue was

• unreasonable and irrational as unsupported by evidence.

• reached in breach of fair procedures in that the Board did not properly either consider or understand Lissan’s submissions that the Scheme would close its business.451

450 Day 1 14:13.

451 I have omitted here Lissan’s plea, in the alternative, of Article 32 of the Road Traffic and Parking Regulations, 1997, which I have dismissed above

when considering the frontager’s right of access and egress. Lissan Coal v ABP & NTA [2026] IEHC 255

Particulars

297. The Particulars of Ground 6

a) Recite much of the factual background to Lissan’s acquisition of the Site, its location, their development of the Filling Station, a description of the Scheme and its effect on the Filling Station business, their interactions with the NTA, the NTA’s applications to the Commission, relevant content of the EIAR, and the processes before the Commission, including Lissan’s interactions with the Commission. I have set this out above and need not repeat it here.

b) Note that the EIAR identified Lissan/the Filling Station as sensitive receptors, “expected that this business would no longer be able to operate successfully" and acknowledged that the Scheme’s impact on them would be “Negative, Very Significant and Long-Term during construction and operation of the Proposed Scheme."452 Nonetheless, and flying in the face of the EIAR and Lissan’s undisputed evidence to the Commission of a 92% loss of businesses such that it would be impossible to maintain Filling Station operations, the Inspector advised the Commission, with no evidence to that effect, that the Filling Station will still be able to “maintain operations”.

c) Assert, reciting the relevant content of her planning assessment which I have set out above,453 that the Inspector gave Lissan’s concerns “scant and perfunctory consideration” – it was “inadequate and entirely dismissive”.

d) Given that the EIAR accepted that the Scheme’s impact on the Filling Station would be "Negative, Very Significant and Long-Term", the Board's dismissive treatment of that impact breached fair procedures and its duty to give reasons. Its (statutorily required) reasoned conclusion on EIA said nothing of the Filling Station and, flying in the face of the evidence as to effect on the Filling Station, irrationally concluded that “Following mitigation, no residual significant long-term negative impacts on the environment or sensitive receptors will occur."

G6 – LISSAN’S POSITION

298. Lissan says that

a) The S.51 Approval is invalid for material errors of fact and/or law, breach of fair procedures, and inadequate reasoning as to the impact of the proposed Scheme on the Filling Station, the viability of which it will destroy.

b) Specifically, the Inspector's conclusion that the Filling Station "can still be accessed and maintain operations albeit not as conveniently as at present" was a conclusion that it could continue in

452 EIAR, Volume 2, Chapter 10.

453 Inspector’s S.51 Report §7.79 & §7.84. Lissan Coal v ABP & NTA [2026] IEHC 255

operation. That conclusion was irrational as contrary to all relevant evidence before the Commission

– in particular in the EIAR to the effect that the Filling Station "would no longer be able to operate successfully".

c) The likely closure of the business was either misunderstood or not properly considered by the Commission.

d) The Commission's reasoned conclusion in EIA does not adequately address the impact on the Filling Station, despite the EIAR's acknowledgment of significant negative effects.

G6 – COMMISSION’S POSITION

299. The Commission says that

a) The Scheme’s impact on the Filling Station was considered properly and in detail in the EIAR.454

b) The EIAR does not state that the business would have to close altogether. It recognises “[a]lthough this business can still be accessed by private vehicles, these will primarily be local residents in the surrounding community area and customers with existing knowledge of the location of the business”.

c) Lissan, in breach of the correct approach to interpretation of Commission decisions, misreads the S.51 Approval and the Inspector’s Report as invalid rather than valid and on a selective and legalistic parsing of their texts.

d) The Inspector’s conclusion455 that “The station can still be accessed and maintain operations albeit not as conveniently as at present” is factually correct. It must also be read in context, having regard to the totality of the evidence considered by the Inspector, including the detail in the NTA’s EIAR.

Notably, ▪ (1) the Filling Station can still be accessed as the Inspector says, via Glenbeigh Road;

▪ (2) the Inspector’s statement that the Filling Station can maintain operations it is not inaccurate as operations are not precluded by the S.51 Approval or the CPO and no land will be taken from the Filling Station;

▪ (3) the Inspector is correct in acknowledging that, while Lissan can still operate the Filling Station, it would not be as conveniently as at present – which comment is to be understood in the context of the Inspector’s earlier and correct acknowledgement in the same paragraph456 as to the Filling Station “that a significant reduction in through traffic would undoubtedly have an impact on the number of customers to the services. The Board should note that this has also be recognised by the NTA” – thereby drawing the Commission’s attention to the EIAR.

454 As this proposition is not disputed for present purposes, save for the exception I note, I need not recite the NTA’s lengthy elaboration of this point.

455 at §7.84 of the Inspector’s Report dated 27 March 2024.

456 §7.84. Lissan Coal v ABP & NTA [2026] IEHC 255

▪ This passage must also be understood in the context of the Inspector’s Report read as a whole, including the fact that the Inspector accurately summarised457 the main thrust of Lissan’s submission, expressly noted the traffic impact report and the point made therein in relation to the Filling Station as to the reduction in trade from passing cars as a result of the Proposed Scheme.

e) The Commission and the Inspector considered Lissan’s submissions and that the Inspector considered the main issues raised in the submissions.458 The Inspector’s Report and the materials before the Commission, to which the Commission and the Inspector had regard (e.g. the NTA Observations on the Proposed Scheme Submissions and CPO Objections459), make clear that the main issues raised by Lissan were considered but that, in the lawful exercise of evaluative judgement of competing legitimate and relevant considerations, the Inspector and the Commission considered that, on balance, “given the gains in terms of benefits to the wider community and the overall accessibility into and out of the city as a result of the proposed scheme … the delivery of this active sustainable travel infrastructure”460 (which are considerations), the Proposed Scheme was considered acceptable despite its acknowledged impact on Lissan’s Filling Station business. The Commission and its Inspector were entitled to prefer the NTA’s materials and on a correct interpretation of the Inspector’s Report (taken as a whole) it is clear why the Commission preferred and its reasons in this regard are adequate.

f) Most notably, the Commission submits that

“In relation to the Applicants’ Filling Station, the EIAR states461 …. that “it is expected that this business would no longer be able to operate successfully” (emphasis added). The EIAR does not state that the business would have to close altogether. The EIAR recognises (at Volume 2, chapter 10, section 10.4, internal page 30) that “[a]lthough this business can still be accessed by private vehicles, these will primarily be local residents in the surrounding community area and customers with existing knowledge of the location of the business.”462

G6 – NTA’S POSITION

300. The Inspector’s statement that “[t]he [Go] station can still be accessed and maintain operations albeit not as conveniently as at present”,463 is factually correct and must also be read in the context of the totality of the evidence the Inspector considered. She considered Lissan’s submissions464 and noted that the

457 page 2.7.

458 Citing pages 69 (at §7.84), 257 and 258 of the Inspector’s Report dated 27th March 2024 on the s.51 Approval process, pages 1, 2 and 5 of the

Commission Direction (BD-016581-24) dated 14th June 2024, and pages 4 and 7 of the Commission Order (ABP-313892-22) dated 21st June 2024.

459 January 2023 pages 67 and 439 to 463.

460 §7.84 of the Inspector’s Report dated 27 March 2024.

461 At Volume 2, chapter 10, section 10.4, internal page 30.

462 Commission’s Written submission §50. Emphases in original.

463 §7.84 of the Section 51 Approval Inspector’s Report.

464 §7.84. Lissan Coal v ABP & NTA [2026] IEHC 255

NTA had recognised the impacts to the Filling Station business. That is clearly a reference to the EIAR’s acknowledgement of that impact.465 The Inspector considered that, given the Scheme’s benefits to the wider community and overall accessibility into and out of the city as a result of the Proposed Road Development, those impacts were acceptable.

301. The Commission Decision should be read in a way that makes sense, is lawful, and which renders it valid not invalid – Ryanair.466 Lissan erroneously reads the Inspector’s Report and the overall Section 51

Decision “in the most erroneous way possible” - Save Roscam, MR (Bangladesh), St. Margaret’s Recycling and Rostas.467

G6 – DISCUSSION & DECISION

Objectivity & Function of EIA

302. Article 3 of the EIA Directive is fundamental to EIA – Case C-50/90 Commission v Ireland. It requires that EIA “shall identify, describe and assess in an appropriate manner, in the light of each individual case, the

direct and indirect significant effects of a project on the following factors.” The factors listed include material

assets and their interaction with the other listed factors. The phrase “in an appropriate manner” requires clear-eyed objectivity. Both EIARs and EIAs must be clear-eyed, objective and to the point. They must demonstrate that the issues have been understood such that their conclusions are objectively supportable. In these regards see EIA Directive Recital 25 and Article 9a and, for example, Shadowmill and case C- 526/16,468 to the effect that that the precautionary principle requires that the likelihood of significant effect to the environment must be considered to exist when that likelihood cannot be objectively excluded. Talla469 is in similar vein and I will refer to it below.

303. As has been said, the function of EIA is primarily procedural – it informs, but does not determine development consent decisions. And crucial to EIA is the obligation to identify and assess all significant environmental effects. But as Kingston et al470 say:

'Crucially however Article 3 does not lay down substantive rules on the balancing of the environmental effects of a project with other factors, or prohibit the competition of projects which are liable to have

465 The NTA cite Volume 1 at §8.5 and, Volume 2, §10.4.4.2.2.2, Tables 10.12 and 10.13 and Table 23.1.

466 Ryanair v An Bord Pleanála & DAA [2025] IEHC 194 §3 - “….. a decision should be read in a way that makes sense rather than nonsense and that

renders it valid rather than invalid.”

467 Save Roscam v. An Bord Pleanála (No.6) [2024] IEHC 335 §64; MR (Bangladesh) v. The International Protection Appeals Tribunal & Anor [2020] IEHC

41 §7, St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 §57; Rostas v. DPP [2021] IEHC 60 §50.

468 Shadowmill v ABP & Lilacstone [2023] IEHC 157 §62; Commission v Poland, Case C-526/16 §67. This judgment is not available in English but is cited

to this effect in Case C‑721/21 Eco Advocacy CLG Opinion of Advocate General Kokott delivered on 19 January 2023 and in case C‑575/21 Wertinvest

Hotelbetrieb Opinion of Advocate General Collins delivered on 24 November 2022, R (Friends of Basildon Golf Course) v Basildon District Council [2010]

EWCA Civ 1432 §62. See also Waltham Abbey Residents Assoc v An Bord Pleanála & Ors, [2023] IEHC 146.

469 Talla v Minister for Justice [2020] IECA 135.

470 Kingston, Heyvaert and Cavoski, European Environmental Law (Cambridge, 2017), p.388. Lissan Coal v ABP & NTA [2026] IEHC 255

negative effects on the environment.'

In similar vein, Kokott AG baldly stated in Holohan471 that the EIA Directive “does not lay down any substantive requirements in respect of granting development consent to a project”. A significant adverse environmental effect may, in the judgment of the Commission and depending on circumstance, be acceptable.

304. So, the significance of an effect in EIA is an issue distinct from the acceptability of a significant effect in development consent decision-making. Those issues of significance and acceptability must not be elided. Indeed, it is in practice simple enough to avoid doing so and not at all burdensome to require that that distinction be maintained by decision-makers.

Sensitive Receptors

305. The NTA472 and Lissan dispute whether the Filling Station is a “sensitive receptor” within the meaning of the Commission’s EIA as recorded in the S.51 Approval. The NTA argue that the meaning of the phrase is confined – that sensitivity relates more to the nature of the business than to the effect of the project on it. It gave the examples of tourist areas or premises providing services for persons with disabilities.473 The NTA did not cite authority.

306. The phrase “sensitive receptor” is routinely found in EIARs and in EIAs. But I am not aware that, and it was not suggested that, it is anywhere defined or that criteria for recognition of sensitivity are anywhere

stated in legislation. Of itself, that lack of definition and criteria seems significant. Sensitivity is not a term of

art in EIA or a formal concept in EIA. It is, no doubt, a very useful tool for identification and analysis of effects

but it is not a formal criterion of EIA or exclusionary of significant environmental effects on so-called nonsensitive receptors – a self-contradictory idea. Of course, effects will vary in their degree of significance and acceptability and particular receptors will be more or less vulnerable to significant effects on them by reason of a project. A given receptor will be sensitive to some effects and not to others. No doubt, seeking to identify likely sensitive receptors is part of a practical approach to EIA. Doubtless, certain types of land use will be generally and particularly sensitive and routinely so regarded in EIA. Tourist areas or premises providing services for persons with disabilities may well, in a given instance, be obvious candidates. I am far from suggesting that it is an inappropriate part of EIA methodology. But I am unaware that in EIA and when it comes to identifying significant effects, there are, in any formal pre-categorised sense, two “tiers” of receptor – sensitive and non-sensitive. Ultimately, identification of a receptor as “sensitive” or “nonsensitive” is neither here nor there – the question is one of assessment of significant effects. EIA has a wide

471 Holohan v An Bord Pleanála & NPWS, Case C-461/17, EU:C:2018:883, [2019] PTSR 1054, (Kokott AG 7 August 2018, Judgment 7 November 2018) –

citing Commission v Ireland (C-418/04, EU:C:2007:780, §231), Leth (C-420/11, EU:C:2013:166, §46).

472 Day 2 16:13.

473 Day 2 16:14. Lissan Coal v ABP & NTA [2026] IEHC 255

scope and broad purpose – Kraaijeveld.474 Its essential objective is of ensuring a high level of protection of the environment – Namur-Est.475 It is informed by the precautionary principle – FitzPatrick.476 It must comprehensively assess all significant environmental effects – Namur-Est.477 In my view, sensitivity is to be given a broad and colloquial meaning consistent with these requirements.

307. To the extent that the concept of sensitivity matters in a formal sense, any receptor which will suffer a significant environmental effect due to a project is, ipso facto, sensitive to that project. While the EPA’s 2022 Guidance on EIAR content rightly eschews definition of “Significant Effect”, its description thereof is consistent with this view: “An effect which, by its character, magnitude, duration or intensity, alters a

sensitive aspect of the environment”. It does however provide478 what it considers “standard definitions” of a

“Receptor” as “Any element in the environment which is subject to impacts” and of “Sensitivity” as “The

potential of a receptor to be significantly affected” (I add, whether that potential be high or low). It does not,

however, define the word “Sensitive” – which implies high sensitivity. Counsel for Lissan, I think fairly, described a sensitive receptor as one with a “predisposition to being significantly affected”.479

308. In my view and contrary to the NTA’s submission,

• EIA is not formally based on an a priori categorisation of types of receptor as, of their nature, sensitive or non-sensitive without reference to the nature and likely effects on the receptor of the specific project in view.

• The concept of a sensitive receptor encompasses any receptor particularly vulnerable to the proposed project. In that sense, I am readily satisfied that a business which will be put out of business and/or an established land use that will be terminated by a project is a sensitive receptor with respect to that project.

309. In any event, the Impugned Decision is not limited to a finding of no significant negative effect on “sensitive receptors”. It finds also no significant negative effect on “the environment”.

310. So, nothing turns on the NTA’s submissions in this regard.

474 Aannemersbedrijf P.K. Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland. Case C-72/95.

475 Namur-Est Environnement ASBL v Region wallonne (C-463/20), [2023] Env. L.R. 1 (2022).

476 Fitzpatrick v An Bord Pleanála, Galway County Council and Apple, [2019] 3 IR 617.

477 Namur-Est Environnement ASBL v Region wallonne (C-463/20), [2023] Env. L.R. 1 (2022).

478 Appendix I – Glossary of Terms.

479 Day 3 13:37. I appreciate that the concept of “disposition” is strictly inapplicable here but the meaning is clear and useful.

Lissan Coal v ABP & NTA [2026] IEHC 255

Facts & Commentary Thereon

311. As has been seen, the NTA’s EIAR had advised the Commission that

• The primary source of Filling Station income is passing trade along Old Cabra Road.

• The bus gates will significantly reduce that passing trade.

• The remaining custom will primarily be local residents and customers with existing knowledge of the location of the business.

• It is expected that the Filling Station would “no longer be able to operate successfully”.

• The impact on this business is assessed as Negative, Very Significant and Long-Term during construction and operation of the Proposed Scheme.

312. The Inspector, in my view unobjectionably in principle, advised that the gains to the wider community and overall accessibility into and out of the city as a result of the sustainable travel infrastructure Scheme, are such that the scheme is on balance acceptable weighed against the effect on the Filling Station.

313. The Commission’s position is that the Inspector’s statement that the Filling Station can maintain operations it is not inaccurate as operations are not precluded by the S.51 Approval or the CPO and no land will be taken from the Filling Station. That position is based on a false premise. The issue in EIA is not what the s.51 Approval or the CPO formally permit, require or preclude. The issue is their effect. Their effect is in truth undisputed. Whether one calls the effect direct or indirect is beside the point in EIA. In this case, the bus gates will shut the Filling Station.

314. I have, earlier, recorded my view of the inadequacy of the Inspector’s report in failing to objectively face up to the undisputed content of the EIAR as to the Scheme’s effect on the Filling Station. Even ignoring the unfairly diminishing use of the world “conveniently”, the narrow sense in which the Inspector is factually right in saying that the Filling Station “can still be accessed and maintain operations” is entirely beside any relevant point or realistic prospect.

315. Yet in the proceedings, the Commission tried to square the circle. Mr Feely of ARUP, who coordinated EIAR preparation for the NTA, correctly and fairly deposed480 to the expectation recorded in the EIAR that the Filling Station would “no longer be able to operate successfully”. Yet he also deposed as follows:

“In terms of the significance of impact, it was considered on a conservative basis that, while the business would remain open, the change in operational characteristics would be significantly altered, which led to an impact characterisation of ‘Very Significant’. It was considered that, as the business would still be operational, albeit that it would no longer be able to operate successfully,

480 Affidavit 25 February 2025. Lissan Coal v ABP & NTA [2026] IEHC 255

the level of impact did not meet the ‘Profound’ threshold …”481

316. I do not understand this averment, or for that matter the EIAR, inasmuch as it refrains from categorising the effect on the Filling Station as profound. Mr Feely says it was “considered on a conservative basis”. In context I do not know what “conservative” means. I do not see how he can simultaneously and rationally predict that in any reality a business which “would no longer be able to operate successfully” will nonetheless “remain open” – would “would still be operational”. Nor do I so read the EIAR. My puzzlement must particularly apply in the “Long-Term”, which was the EIAR’s matrix of assessment. It is surely in the

nature of business that a business no longer able to “operate successfully” all but inevitably closes – that it

becomes, in the EIAR’s terms, non-operational. As this is a matter of opinion, prediction and expert judgement, such evidence can only be given by an expert. I do not completely exclude the possibility that such an opinion can sensibly be held, but an expert tendering such evidence to the Court, and for that matter to the Commission, must explain such an opinion – not least as it is so highly counterintuitive and apparently self-contradictory. Absent such explanation, the averment comes across as “spin” – for which there is no place in an affidavit, for reasons explained in Stapleton, Jet2.com. and Renehan.482 As matters stand, the averment seems to be a variant of the regrettable euphemistic thinking in which the Inspector indulged.

317. In fairness to Mr Feely, his final averment was more revelatory:

“The EIAR proceeded on the assumption that it483 was a successful business and that the implementation of the Proposed Development would result in a very significant negative effect on the basis that, while the business was able to remain in operation because it could still be accessed by private vehicles, due to the reduction in passing trade, it would no longer be able to operate successfully.”

318. However, even this explanation makes no sense. How, in any real world, can it have been even relevant to the proposition that that the “the business would remain open,” to say that “it could still be accessed by private vehicles” when, on any rational view, the overriding conclusion is that it “would no

longer be able to operate successfully.” As to the ability of the Filling Station to continue to trade, the issue is

in the first instance whether private vehicles can access it but is ultimately whether they will access it. It is clear that they can but will not. Put simply, businesses unable to “operate successfully” go out of business. Ceteris paribus, businesses dependant on passing trade do not “remain open” when that trade ceases to pass.

481 Emphases added.

482 Stapleton v ABP & Savona [2024] IEHC 3 §195, R (Jet2.com Ltd) v Civil Aviation Authority [2018] EWHC 3364 (Admin), citing R (Hoareau) v Secretary

of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin); Renehan v T&S Taverns Ltd t/a The Red Cow Inn [2015] IESC 8 approving

Re Downes [2006] N.I.Q.B. 77.

483 i.e. the Filling Station. Lissan Coal v ABP & NTA [2026] IEHC 255

319. In my view, Mr Healy, in his affidavit for Lissan, correctly characterised the NTA as having accepted by its EIAR that the Scheme will render the Filling Station “not commercially viable”.

320. All that said, I must bear in mind that that neither affidavit was before the Commission. What was before the Commission was the EIAR, Lissan’s Submissions, the NRTA’s Response and the Inspector’s report. And whatever the categorisation of the effect and whatever the difference between “very significant” and “profound”, it seems to me that the EIAR did convey to any reasonable reader that if the Scheme went ahead, the writing was on the wall for the Filling Station. Subsequent attempts to dilute that conclusion have been unimpressive.

321. As I have recorded earlier, the NTA submission to the Commission of January 2023484 responded at some length to Lissan’s objection to the Scheme. It did so in terms which adequately conveyed both the terms of that objection and the EIAR content predicting that the Filling Station would “no longer be able to operate successfully”. Inter alia, it asserted the inadequacy of alternatives to meet the Scheme’s transport objectives and that the bus gates were critical and fundamental to the Scheme. It also disputed that any compensable acquisition of rights from Lissan would occur.

322. Pausing to comment on this NTA response, I observe that whether an interference in property rights is non-compensable is relevant to but not, per se, an answer to the question whether such interference might justify, for example, an amendment to the Scheme. Indeed, on particular facts it might be that, if by a minor amendment a non-compensable loss could be avoided, the Commission would regard the very absence of a prospect of compensation as a reason to amend. I appreciate that the NTA had characterised the Bus Gates as fundamental to the Scheme and the alternatives considered as unsatisfactory. While, as I say, the NTA response correctly recorded the relevant EIAR content, I cannot help thinking it unfortunate, perhaps not least in light of what followed, that the NTA response did not engage with the fact that the Negative, Very Significant and Long-Term, post-mitigation residual effect anticipated in their own EIAR was

to be in the form of the Filling Station’s inability to “operate successfully”. In short, the NTA’s own EIAR says

the Scheme will shut the Filling Station. So had Lissan. That is agreed and I have seen no evidence of a contrary view on the papers opened to me.

323. Despite this unanimous and dramatic prognosis, the Inspector reported485 that access will be available via Glenbeigh Road. In the strict physical sense this is, of course, correct. But, commercially, in terms of effect on the value of Lissan’s lands and/or as to the prospect of change of their use, it is clearly beside the point. This is not a matter of mere “Boxus formalism”486 or excessively onerous “Ó Gríanna

484 Observations January 2023 §4.57.

485 §7.84.

486 Boxus v Region Wallonne (C-128/09), [2012] Env. L.R. 14 (2011) – Sharpston AG: 79 §“The EIA Directive is not about formalism. It is concerned with

providing effective EIAs for all major projects; and, in its amended form, with ensuring adequate public participation in the decision-making process.

And in similar vein the Court of Appeal said in Friends of the Irish Environment CLG v The Government of Ireland [2021] IECA 317 that "Excessive

formalism in the context of the Habitats Directive is inconsistent with the spirit and purpose of EU environmental law.".

Lissan Coal v ABP & NTA [2026] IEHC 255

pedantry”.487 It is a matter of substance. The Inspector’s planning assessment continued in terms I set out earlier but which bear repetition:

“However, I acknowledge in relation to the petrol station that a significant reduction in through traffic would undoubtedly have an impact on the number of customers to the services. The Board should note that this has also been recognised by the NTA.

However, given the gains in terms of benefits to the wider community and the overall accessibility into and out of the city as a result of the proposed scheme, on balance I consider the delivery of this active sustainable travel infrastructure to be acceptable in this regard. The station can still be accessed and maintain operations albeit not as conveniently as at present.”

324. The S.51 Approval records the Commission’s a. regard to, inter alia, ▪ all documents submitted by the NTA including the EIAR.

▪ the likely consequences of the Scheme for the environment and for proper planning and sustainable development.

▪ the report and recommendation of the Inspector, including its analysis and evaluation as to EIA.

b. view that the Scheme is acceptable as to its likely effects on the environment.

c. completion of an EIA, including ▪ taking account of the EIAR, submissions and Inspector’s report.

▪ its view that alternatives had been adequately considered ▪ its agreement with the examination, set out in the Inspector's report, of the information contained in the EIAR and associated documentation submitted by the applicant and submissions made.488

d. Reasoned conclusion in EIA. This goes into some detail not here relevant and reflects what appears to be a proper interrogation of the issues arising. As here relevant, it states that the EIAR

“has considered that the main significant direct and indirect effects of the proposed development, during construction and operation, on the environment would be primarily mitigated by environmental management measures, as appropriate. Following mitigation, no residual significant long-term negative impacts on the environment or sensitive receptors will occur.

Having regard to the above, the Board is satisfied that the proposed development will not have any unacceptable direct or indirect effects on the environment.

487 Ó Gríanna v An Bord Pleanála (No. 2) [2017] IEHC 7. See also e.g. Kelly, Eoin v An Bord Pleanála [2019] IEHC 84, Fitzpatrick v An Bord Pleanála

[2017] IEHC 585 and SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

488 Board Direction. Lissan Coal v ABP & NTA [2026] IEHC 255

Analysis

325. The Commission’s argument that the EIAR does not state that the business would have to close altogether as it recognises “[a]lthough this business can still be accessed by private vehicles, these will primarily be local residents in the surrounding community area and customers with existing knowledge of the location of the business” is quite unreal. Clearly, the cited phrase refers to, and no doubt correctly describes, the potential for customers to access the Site. However, that argument is shortly after followed by the expectation that the Filling Station would “no longer be able to operate successfully”.489

326. It is difficult to ascribe meaning to the Commission’s strange underlining, for emphasis, of the word “successfully”, not least in the context of the sentence which immediately follows, other than that the business will be able to operate unsuccessfully and so will continue to operate. This is Orwellian doublethink. Put bluntly, businesses unable “to operate successfully” do indeed, to use the Commission’s phrase, “have to close altogether”. That is the nature of business.

327. As I have said, the argument that the Inspector’s statement that the Filling Station can maintain operations it is not inaccurate as operations are not precluded by the s.51 Approval or the CPO and no land will be taken from the Filling Station is, for EIA purposes, an irrelevant distraction. The issue is not what the s.51 Approval or the CPO permit or require. The issue is the effect of the Scheme.

328. Far from Lissan misreading the EIAR, the Commission attempts to rewrite it. This, too, is not a matter of mere formalism – it is a matter of substance. And in their attempt to rewrite it, the Commission lends credence to Lissan’s accusation that they irrationally misunderstood it. Mr Feely’s affidavit has a similar effect vis-a-vis the NTA.

329. In the excerpt I have cited above, the Inspector acknowledges that a significant reduction in through traffic would undoubtedly have an impact on Filling Station custom as “recognised by the NTA”. But she omits to quote or even paraphrase the EIAR’s most important phrase in this respect - “it is expected that this business would no longer be able to operate successfully”- instead she concludes that “The station can still be accessed and maintain operations albeit not as conveniently as at present.” In business, success is not a mere convenience.

330. In my view, the contrast between the Inspector’s advice to the Commission and the undisputed evidence before the Inspector from the Scheme’s own EIAR is regrettably obvious. In the strict and narrow sense of physical possibility, the Inspector was, of course correct. But only in that strict and narrow sense. And that strict and narrow sense is ultimately irrelevant or at best tangential on any practical view of Lissan’s business. In any sense that mattered - that is in terms of whether, in the real world, the business could

489 Commission’s Written submission §50. Set out more fully above. Lissan Coal v ABP & NTA [2026] IEHC 255

operate successfully and so continue to operate - there was simply no evidence before the Inspector or the Commission to support the proposition that the Filling Station could “maintain operations”. Indeed, the only evidence was directly to the contrary. And, of course, the EIAR had described the post-mitigation residual effect on the Filling Station as Negative, Very Significant and Long-Term. The position was exacerbated by the phrase “not as conveniently as at present” – a phrase at least conveying that the difficulty posed to the business was merely one of convenience as opposed to existential. It is, frankly, difficult to see how the Inspector could have satisfied herself with this sentence and worrying that she did so – at very least without qualifying it in the terms stated in the EIAR. Whatever the weight, if any, which might reasonably have been

attributed to the strict and narrow physical possibility that the Filling Station could “maintain operations”, it

cannot reasonably have justified failing to weigh the commercial reality stated clearly in the EIAR.

331. It would be no means follow automatically that its expected ruination of Filling Station business would be fatal to s.51 Approval of the Scheme. But the Inspector’s report did a euphemistic and diminishing disservice to Lissan’s proper expectation that the expected ruination of their Filling Sation business would be adequately conveyed by the Inspector to the Commission. The EIAR had said “it is expected that this business would no longer be able to operate successfully.” The Inspector attempted to conveyed to the Commission the opposite implication, for which there was no evidence: that the business could – even would - survive, even if it would likely not thrive as before. The Commission accepted that analysis.

332. It bears observing at this point that Talla490 is authority that a public body such as the Commission has “beyond question …. a duty to act fairly and judicially in accordance with the principles of constitutional justice”, including a duty to consider all relevant information. However, in a passage applicable to the Commission’s method of proceeding in light of Inspector’s reports summarising the file and recommending a

decision, Haughton J said, “This does not mean that the decision maker must consider the entire file, or that a system of presenting a summary and recommendation cannot be adopted – provided that all of the relevant material and information is fairly brought to the decision maker’s attention and is considered.”491 The proviso is clear and the concept of fairness here is objective. This requirement of fairness – and also accuracy - in Inspector’s reports goes back at least as far as Simonovich,492 Geraghty,493 and Murphy494 and is vital to public faith in the planning process. While those old cases related to inspectors’ reports specifically of oral hearings, of which the reports may have been the only written record, it is difficult to conceive, given the centrality of inspector’s reports in planning, environmental and similar processes, that the requirement that an Inspector’s report be both fair and accurate is not a general one, even where the Commission’s members have access to the underlying (and in this case, no doubt, highly voluminous495) documents. In any event, Talla confirms that as the position. Inspector’s reports are inevitably summaries (if not, they are useless) and are properly confined to the relevant and weighty matters at issue. But, within that rubric, they must be Cromwellian – i.e. “warts and all”. The applicable concept of fairness does not raise questions of subjective

490 Talla v Minister for Justice [2020] IECA 135.

491 Emphasis added.

492 Unrep. High Court 24 July 1988, Lardner J.

493 Geraghty v The Minister for Local Government, [1976] IR 153.

494 Murphy v Dublin Corporation [1972] IR 215.

495 Thirty-two third party submissions were received as to the CPO. 117 third party submissions were received as to the scheme. In addition,

submissions were received from prescribed bodies. Lissan Coal v ABP & NTA [2026] IEHC 255

or deliberate unfairness by an Inspector – nor, as I have said, do I infer that in this case. But I cannot see that,

in the objective sense, the inspector accurately and “fairly brought to the decision maker’s attention” that the NTA, by its expert advisors and in an uncontradicted opinion, “expected that this business would no longer be able to operate successfully.” The Inspector’s report was, in this respect, objectively unfair to Lissan.

333. EIS is procedural – it may, but need not, determine the decision on development consent. I reiterate a comment I made at trial. I have some impression that decision-makers seem to imagine that in order to grant development consent they must find in EIA that the project will have no significant adverse effects. It is trite law but for emphasis and the avoidance of doubt: that is not so. Correctly, they are free to find significant effects and, having considered them, to nonetheless grant development consent if, in the exercise of competent evaluative judgment, the significant effects are acceptable and that course seems proper.

334. It is perfectly possible that an adverse effect assessed in EIA may be significant, profound even, and yet acceptable for development consent purposes when balanced against the positive aspects - environmental and non-environmental – of a Scheme, such that development consent may be granted. However, before the balancing process to discern acceptability ensues, the balance must be fairly, objectively and correctly loaded on both sides. The EIA must first objectively, correctly and comprehensively identify all significant effects of the project. Significance is of course a matter of judgement. As identification of the likely factual effects is essentially predictive it also will involve judgement. Such expert judgements attract curial deference. But that judgement must be based on the evidence before the Inspector and the Commission. That private cars could still exercise the frontager’s right of access is, of course, a pre-requisite

of the continuance of the business. But that is all it is. It is little consolation to a filling station operator that

private cars can access the premises if in fact they will not access the premises. Here, the relevant evidence was all one way: the Filling Station would “no longer be able to operate successfully”.

335. Significantly, the Commission in its S.51 Approval and the EIA which informed it, could have corrected but did not correct the Inspector in this regard. To the contrary, and as I have recorded, the Commission explicitly “agreed with the examination, set out in the Inspector's report” of the EIAR and other documents on file.496 It concluded that “Following mitigation, no residual significant long-term negative impacts on the environment … will occur.” It is very difficult indeed to see how the Commission could have stated this conclusion without explanation had its members personally adverted to the statements in the EIAR that the Filling Station would “no longer be able to operate successfully” and that the post-mitigation

residual effect on the Filling Station would be “Negative, Very Significant and Long-Term”. As I said at trial,497

the word "significant" is a big word – a central concept - in EIA. If the EIAR says there is a very significant effect, a finding in the EIA is of no significant effect requires some gymnastics.498 Contrary to the Commission’s submission, it is not a matter of excessive formalism, much less is it to read an EIA in the most

496 Board Direction.

497 Day 2 12:44.

498 The word “gymnastics” was volunteered, correctly and to his credit in my view, by counsel for the Commission. I adopt it.

Lissan Coal v ABP & NTA [2026] IEHC 255

onerous manner possible, to say that when a decision-maker positively finds that there are no significant effects, that means something and when the EIAR says there is a very significant effect, that means something else. As I said at trial,499 significance is a central concept of EIA. Words matter and in EIA the word

“significant” and its cognates matter a lot. Attributing legal significance to the use of the word "significant" in

an EIAR or EIA is not an exercise in formalism – excessive or otherwise. The use in an EIAR or EIA, to describe an effect, of the word "significant" and its cognates, all but inevitably conveys a very particular and important conclusion.

336. Counsel for the Commission drew my attention,500 proposing it as relevant context, to the Commission’s finding that "Whilst some localised impacts arising from road closures may arise, significant impacts arising from traffic can be ruled out." This does not improve the Commission’s position. It is more drab and the word “may” is euphemistic. The finding certainly does not convey or address the EIAR’s clear statement of Lissan’s position.

337. Counsel for the Commission sought to persuade me that its conclusion of no significant effects was contextually defensible “overall” as to the entirety of a large project.501 That might well have been a correct submission as to the acceptability overall of the entirety of the large project rather than as to significance of effects. As I observed at trial, the duty in EIA is to identify all significant effects. The objective of EIA is a comprehensive assessment of all significant environmental effects - such effects must be described by the developer. No exceptions are provided for certain environmental effects - Namur Est.502 Of course, on particular facts, it may be open to the Commission to disagree with its Inspector as to significance of and effect or to disagree with the EIAR as to significance of effect. But here it did neither and there was no evidence contradicting the EIAR as to the factual prognosis for the Filling Station if the Scheme proceeds.

338. The proper conclusion on these facts is that the Commission’s members relied in this respect on their Inspector’s Report rather than on the EIAR or, for that matter, on the various submissions before it. Counsel for the Commission accepts its members accepted their Inspector’s recommendation.503 Whether, narrowly viewed in terms of specifically the members’ obligations in the decision-making process, that was a proper course in light of Talla but in the specific context of the obligations imposed by the EIA Directive, I need not decide – though I have my doubts. In fairness to the members, remembering that Lissan’s interest was, in the great scheme of a complex 11 km road development through Dublin City and its suburbs, an isolated issue which these proceedings have thrust to prominence, the Inspector’s report did not serve its proper function of alerting them to the reality of Lissan’s situation as acknowledged in the EIAR. But, relevantly viewed in terms of the Commission’s overall decision-making process, it is easy to understand and difficult to disagree with Lissan’s dissatisfaction with how the Inspector and the Commission addressed their predicament. Where their business is to be destroyed, this is an issue, in Balz terms, of the “trust which

499 Day 2 12:44.

500 Day 2 12:45.

501 Day 2 12:50.

502 Namur-Est Environnement ASBL v Region wallonne (C-463/20), [2023] Env. L.R. 1 (2022) §AG41 & 44.

503 Day 2 12:28. Lissan Coal v ABP & NTA [2026] IEHC 255

members of the public are required to have in decision making institutions if the individuals concerned, …. are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.”

339. In my view, the Inspector’s conclusion that the Filling Station could continue in operation was irrational - flying the face of all the evidence before her. There was no evidence for that conclusion and, in Keegan504 terms it defied “fundamental reason” and, most notably, “common sense”. In adopting the Inspector’s Report the Commission adopted that irrationality. Also its conclusion that “no residual significant long-term negative impacts on the environment or sensitive receptors will occur" cannot be reconciled with the undisputed conclusion of the EIAR that the effect on the Filling Station “Negative, Very Significant and

Long-Term”. In my view this was also irrational – indeed I infer that it derived from the first irrationality –

acceptance of the Inspector’s conclusion that the Filling Station could continue in operation. If I am wrong as to this latter irrationality, the Commission were at least in error in not giving reasons explaining how their

conclusion could be reconciled with the EIAR content I have just described.

Environmental Effect? – Leth - & Significance of Effect

340. To this point, my analysis is that the Impugned Decision as to effects of the Scheme on the Filling station was irrational as unsupported by evidence and was deficient in reasons. To this point, I have, as it were, taken the EIAR and the Inspector’s report on its own terms in the sense that they assumed that economic/financial effects on Lissan’s petrol station are environmental effects. Taking it on those terms, the Impugned Decision would be quashed for irrationality and failure to give reasons.

341. However, a question remains: are the effects on the Filling Station identified in the EIAR environmental effects such that a failure to properly consider them may invalidate the EIA?505 I adverted at the start of the hearing506 to the concern that the word “environmental” could become so all-embracing as

to become meaningless - an “endless sprawl” or an “unruly horse”507 – and that there must be some sense of

what an environmental consideration is and what a non-environmental consideration is. I raised the question whether the effect on Lissan would be environmental in nature. No opposition paper or written

submission had raised the issue. I think it’s fair to say that until I raised the issue, all involved had taken the

effect on Lissan’s business as environmental for EIA purposes.

504 The State (Keegan) v The Stardust Victims' Compensation Tribunal [1986] IR 642.

505 A question I posed on Day 1 11:15 & 11:41 et seq.

506 Day 1 11:42.

507 An image more usually employed in equity matters and perhaps an archaism, but invoked as recently as last year by the UKSC - Recovery Partners

GP Ltd v Rukhadze and others [2025] 2 WLR 529. Lissan Coal v ABP & NTA [2026] IEHC 255

342. As the expected commercial effects on the Filling Station were identified in the EIAR under a general heading of “Economic Assessment”508 and a specific sub-heading of “Commercial Accessibility”509 and as “Negative, Very Significant and Long-Term”, one might say that the NTA are off to a bad start on this argument. However, as counsel for Lissan correctly agreed, the fact that the EIAR describes an effect doesn't mean that it is in law an environmental effect.510

343. In Leth,511 on which both sides rely, the applicant sought compensation512 for alleged failure to do EIA before permitting airport extensions near her home and for the devaluation of her home by resultant aircraft noise. While her home was a material asset within the meaning of the EIA Directive, such that effects thereon are considered environmental, the reference to the CJEU asked whether EIA encompasses effects on the value of material assets.

344. The CJEU ruled that the EIA Directive did not require assessment of effects on the pecuniary value of material assets unless they were direct economic consequences of environmental effects. EIA must “take into account only those effects on material assets which, by their very nature, are also likely to have an impact on the environment.” However, the EIA Directive requires examination of the direct and indirect effects of a project on, inter alia, human beings and material assets and on the interaction between those two factors. Therefore, “it is necessary to examine the effects of a project on the use of material assets by human beings.”

345. Though ultimately the question was for the domestic courts to examine on a case-by-case basis, the CJEU considered that where EIA project noise significantly affects individuals, in the sense that a home so

affected is rendered less capable of fulfilling its function and the individuals’ environment, quality of life and,

potentially, health are affected, a decrease in the pecuniary value of that house may indeed be a direct economic consequence of such effects on the environment.

346. Kingston et al513 cite Leth to the effect that EIA,

“need not include an assessment of the effects of the project on the financial value of assets.

Nevertheless, the CJEU has recognised that a decrease in the financial value of an asset (in [Leth] a decrease in the value of a house from noise pollution) is covered by the objective of the Directive in cases where it is a direct economic consequence of the environmental effects identified in the assessment.”

508 EIAR Vol 2 §10.4.4.2. pp. 29 & 30.

509 EIAR Vol 2 §10.4.4.2.2.2.

510 Day 1 11:41.

511 Leth v Austria: Case C-420/11 ECLI:ECLI:EU:C:2013:166, [2013] 3 CMLR 13, [2013] PTSR 805, [2013] All ER (D) 276 (Mar).

512 it seems, not damages at Austrian law but Francovich damages for breach of the EIA Directive - see AG Opinion §28 and fn10 & 11.

513 Kingston, Heyvaert and Cavoski, European Environmental Law (Cambridge, 2017), p.388. Lissan Coal v ABP & NTA [2026] IEHC 255

347. Leth was considered in Carroll514 - but I don’t see that it advances the analysis.

348. I note that a question has been referred to the EU as to the relevance of effects on the value of material assets in SEA515 of Ireland’s Fifth Nitrates Programme.516 Analogy with Leth is in issue in that reference but not, it seems to me, the effect of Leth in EIA as opposed to SEA. I do not consider that the fact of that reference should inhibit my decision of the issues in this case.

349. Leth is authority that, before EIA is required to consider the significance of a decrease in the financial value of an asset, it must be established that an environmental effect is causative of the decrease. So, first one must identify an environmental effect of the project. That is to say an effect, positive or negative517 on one of the factors listed in Article 3 of the EIA Directive. Only thereafter does one consider if that environmental effect directly devalues material assets.

350. In my view, in what one might call “Leth terms” and considering the Filling Station as a material asset, the EIAR identifies that the Scheme will, by in effect forcing its closure, affect “the use of material assets by human beings” (its potential customers) and will render it less capable of fulfilling its function (at least as to its provision of services to the former through traffic/passing trade on the Old Cabra Road which, though diverted, will, one must presume, continue to exist even if in quantum reduced by the modal shift expected from the Scheme). It seems to me therefore that the resultant devaluation of the Filling Station will be the result of an environmental effect and so was correctly considered in the EIAR to be an environmental effect and fell to be considered in the EIA. I hold that on the facts of this case, as between the forced cesser of use of material assets by human beings and the resultant economic/financial effect, the causative link is adequately direct by reference to the Leth requirement of directness in that regard. And, as has been seen,

the EIAR considered the effect on the Filling Station itself to be “Negative, Very Significant and Long-Term” –

for the specific reason that it would no longer be able to operate successfully.

351. Significance is not a hard-edged or rigid concept – Coolkill.518 And, as noted in Mellor, Wells, Klohn, Huddleston, Callaghan, and Shadowmill,519 the purpose of the EIA Directive, as stated in its Recital 6*,520 is

to ensure EIA of “projects likely to have a major effect on the environment”. It is not for the court to decide if

the forced closure of the Filling Station would constitute such an effect. However, I do not accept the NTA’s submission that “a significant impact to a single receptor at a single location on a scheme which is across the

514 Carroll v An Bord Pleanála & Green Wind Energy [2016] IEHC 90. That case appears to have been decided on the basis that there was no evidence

before the Commission that proximity to the wind farm at issue adversely affected the value of the applicant’s house.

515 Strategic Environmental Assessment under Directive 2001/42.

516 Reference for a preliminary ruling from High Court (Ireland) made on 1 August 2024 – An Taisce – The National Trust for Ireland v The Minister for

Housing, Local Government and Heritage, Ireland, The Attorney General (Case C-531/24, An Taisce).

517 EIA Directive Annex IV §5.

518 Concerned Residents of Coolkill v An Bord Pleanála & Midsal Homes [2025] IEHC 265, citing Monkstown Road Residents’ Association v An Bord

Pleanála [2022] IEHC 318, Shadowmill Limited v An Bord Pleanála [2023] IEHC 157 §55 et seq.

519 Case C-75/08 Mellor v Secretary of State for Communities and Local Government; Case C-201/02 R (Wells) v Secretary of State for Transport, Local

Government and the Regions; Case C-167/17 Klohn v An Bord Pleanála & Sligo County Council - [2019] PTSR 1574; R (Huddleston) v Durham County

Council [2000] Env LR 488; Callaghan v An Bord Pleanála [2015] IEHC 357; Shadowmill Limited v An Bord Pleanála [2023] IEHC 157 §56.

520 “*” denotes derivation from the 2011 EIA Directive in its original form. Lissan Coal v ABP & NTA [2026] IEHC 255

length of a part of Dublin is not a conclusion that the proposed development overall will have significant effects on the environment. Both of those things can be true”.521 In effect, this is a submission that

• significance of an effect is a relative concept – that a particular effect could be a significant environmental effect of one project but not of another.

• the question of significance of effect is an “overall” or blended single question as it relates to the project generally and the Commission’s ultimate conclusion was that there would be no significant negative effect.

352. Accepting that submission would undermine the high level of protection at which EIA must aim and the resultant necessity of comprehensive and discrete identification of all significant effects considered individually. The significance in question is of the effect. There is, at very least, analogy here with the EPA Guidance on EIAR content to the effect that the tendency to try to answer in the conclusion section of an EIAR “simplistic questions” as to an “overall summary of the effects” on the environment or indeed on one aspect of the environment “needs to be resisted because it fails to recognise that it is the nature of effects to affect individual, discrete, receptors at specific and separate times.”522

353. Ultimately, the NTA’s submission confuses the significance of an effect for EIA purposes with its acceptability for development consent purposes. It may well be that a particular significant adverse effect is acceptable for development consent purposes as to one project and unacceptable as to another, having regard, for example to the social utility of the project and balancing any positive effects, environmental or otherwise. As I have said, acceptability of an effect should not be confused with its significance – and the NTA’s submission illustrates the danger of doing so. And whether an effect is significant must be decided before its acceptability can be considered. And for that purpose, the effect must be correctly identified on a proper evidence-base.

354. Where, here, the EIAR had characterised that closure as “Negative, Very Significant and Long-Term” it was clearly necessary that the Commission consider the possibility that such effect would be significant for EIA purposes and, further, that it would do so on a correct – that is to say, evidentially-based - appreciation of the facts. Unfortunately, whereas the evidence allowed only a conclusion that the Scheme would close the Filling Station, the Inspector informed the Coimisiún that the Filling Station could continue to operate despite the Scheme – a conclusion that was true only in a very narrow, technical, physical and irrelevant sense. Thus, it seems to me, the Commission, in accepting and adopting the Inspector’s euphemistic description of the effect on the Filling Station, operated on a material error of fact and its decision in EIA was irrational and unfair to Lissan as not evidence-based.

355. The decision will be quashed on that account.

521 Day 2 16:31.

522 Guidelines on the information to be contained in Environmental Impact Assessment Reports, EPA, May 2022. Table 3.4 Descriptions of Effects.

Invoked by Lissan, Day 3 13:40. Lissan Coal v ABP & NTA [2026] IEHC 255

356. However, as I have stated, whether on remittal and on a proper and evidence-based appreciation of the facts, the Commission will again conclude that the Scheme will have no residual significant adverse

effects or will conclude that it will have a significant environmental effect as relates to the Filling Station, is a

matter for it not for me. And if it identifies a significant environmental effect of the Scheme as relates to the Filling Station, it will be for the Commission, in deciding on development consent informed by its EIA, to decide whether the Scheme should be approved despite that significant environmental effect. To put it another way, it will be for the Commission to decide whether significant environmental effect of the Scheme as relates to the Filling Station is acceptable having regard to the countervailing benefits of the Scheme, such that development consent should issue.

Planning Consideration?

357. While I am happy with the conclusion just expressed, Leth is a difficult case to apply to particular facts. Against the possibility that my conclusion is wrong, I will consider the question as a planning matter informing development consent, as opposed to an EIA matter informing development consent. EIA does not circumscribe the matters relevant to the development consent decision. It does not absolve the Commission of consideration of non-environmental planning matters. Even if property devaluation or destruction of a business is not a matter for EIA, it is a planning consideration relevant to the Board’s s.51 Approval

decision.523 Planning decisions often consider and are grounded in part on the prospect, or absence of it, that a proposed development will devalue local property or undermine a local business.524 And certainly, the prospect of cesser of an existing use of land is a planning matter. As a planning matter distinct from EIA, effect in the form of shutting down an existing business is a planning consideration. As has been seen, the Inspector’s characterisation of Lissan’s business as capable of continuance was, in my view correctly, part of her general planning assessment.

358. Of some potential significance in that regard, Core Ground 6 and its particulars, as critical of the Inspector’s report, cite the relevant excerpts from §7 - the Inspectors’ planning assessment - whereas the Inspector’s consideration of EIA is found at §9. The passages in the Inspector’s report which respond to Lissan’s submission and include the assertion that the Filling Station can “maintain operations albeit not as conveniently as at present”525 appear in the Inspectors’ planning assessment and in fact she does not explicitly return to the issue in her consideration of EIA at §9 – though the EIA Section of her report does incorporate the relevant elements of the planning assessment by reference.526

359. Core Ground 6, when closely read – not least the word “moreover” – is seen to plead the EIA issue as in addition to the fundamental assertions of material error of fact or law, irrationality and unfairness. I can

523 Discussed on Day 1 11:44.

524 See for example, Fahybeg Windfarm Opposition Group v. An Bord Pleanála [2025] IEHC 310. The challenge based on devaluation failed but not on

the basis that devaluation was irrelevant to the planning decision.

525 §7.79 et seq.

526 Inspector’s report §9.21. Lissan Coal v ABP & NTA [2026] IEHC 255

properly on the pleadings consider the substantive issue in Ground 6, if needs be, as a planning matter relevant to development consent as opposed to an environmental effect for EIA Purposes. Though I do not consider it necessary, if needs be I would consider this to be an unusual circumstance in which Lissan was entitled to take the EIAR, the Inspector’s Report and the Impugned Decision in their own terms as categorising the effect on the Filling Station as environmental and in which all parties proceeded accordingly until trial. On that view and where that categorisation was first questioned by me at trial, a rigid interpretation of the pleas in Ground 6 would work an unwarranted unfairness were Ground 6 not to be interpreted as pleading material error of fact or law, irrationality and unfairness as they relate to planning considerations in the development consent process in addition to, more discretely, environmental considerations in the EIA process. In my view the acceptable clarity standard is met in that regard.

360. Considering Core Ground 6 as a planning matter avoids the question, raised by me first at trial, whether the effect on the Filling Station is environmental for EIA purposes. That question avoided, the S.51 Approval, considered as a development consent to which planning considerations are relevant, succumbs to the same analysis as I have performed with reference to EIA. It falls to be quashed accordingly.

361. By way of postscript, I refer to the State’s submissions as to Ground 8 (which I have rejected) – referring to a residual category of landowners who have not had land expropriated and who have not suffered any actionable nuisance, “whose rights have been weighed as part of the planning process”527 and yet who are faced with adverse impacts on their land value and amenity. Clearly the State’s view is that the weighing process is important. It also submitted, correctly, that it was to occur in the process before the Commission – not in judicial review. The underlying problem here is that the Inspector’s euphemism had the result that Lissan’s right were not lawfully and properly weighed by the Commission.

OVERALL CONCLUSION & OBSERVATIONS ON REMEDY

362. For the reasons I have set out, all grounds of challenge are dismissed save Ground 6 and also Ground

7 as to the possibility of a declaration of the inadequacy of the reasons given for not holding an oral hearing.

363. On Ground 6, I will quash the Impugned Decision for the reasons I have given. However, I would be grateful if the parties would consider with some care the question of my discretion as to remedy. Indeed, the NTA asked for that opportunity – to no objection from Lissan.528 I express the following views provisionally and subject to submissions by the parties.

• Certiorari and remittal of the S.51 Approval will be by reason of a very narrow finding relating to a very limited, if vital, element of the Scheme considered as a whole – i.e. the bus gates and their effect on

527 Statement of Case §90.

528 Day 3 11:13 et seq. Lissan Coal v ABP & NTA [2026] IEHC 255

the Filling Station. I am inclined to consider that Crofton529 does not preclude my fashioning a remedy in certiorari and remittal proportionate to the narrow finding made on Ground 6. I am anxious to avoid imposing on the Commission a wide-ranging reopening of the entire Scheme – both as I think it in substance unnecessary and in hope that the Commission could revisit the matter relatively quickly. I canvassed this issue at trial.530 Provisionally, I am minded to quash and remit the Impugned Decision only as it relates to the effect of the bus gates on the Filling Station, absolving the Commission of considering wider or other issues save, perhaps, as they may arise consequential on its consideration of that effect. By way only of example, wider issues of the benefits of the Scheme and the view (if again taken by the Commission) that the bus gates are vital to the Scheme generally could possibly inform a view of the acceptability of any significant effects of the Scheme. However, I am not to be taken as taking any substantive view on such issues – they are for the Commission.

• Also, Ground 6 impugned the S.51 Approval only – not the CPO. I have found that no lands or property rights are to be acquired from Lissan and that the CPO is not defective. But, possibly, a question may arise whether the CPO can survive certiorari of the S.51 Approval. Or perhaps that question could be deferred pending any decision of the Commission on any remittal to it of the S.51 Approval.

If these provisional views are broadly acceptable to the parties, I invite them to seek to agree the form of order to be made.

364. Provisionally, I consider that Lissan should have costs. I will hear the parties on 11 May 2026 as to final orders and costs.

David Holland 30/4/26

529 Crofton Buildings & Anor -v- An Bord Pleanála [2024] IESC 12.

530 E.g. Day 2 11:19 et seq.