— Dublin City Council and the State have strong grounds to appeal.
— If judgement stands, will have a chilling effect on tackling health, decarbonisation.
— Judge says High Court is not concerned with policy, then dives right into policy.
— Judge uses “common sense” to overrule expert reports.
— Heavyweight put on the question of “temporary” nature of the plan.
— Judge seems to exaggerate the impact of minor road changes.
COMMENT & ANALYSIS / VERY LONG READ: I never thought I’d be writing an analysis article covering a High Court judgement, but when a High Court judge starts to sound like Pat Kenny on Newstalk — “This would seem to suggest that residents and other persons in the affected roads should they wish to go to Dublin Airport would have to either walk or cycle…” (that’s a quote from the Judge, not Kenny) — the time has come to breakdown why the Strand Road judgement is fundamentally flawed.
The High Court case was brought by Peter Carvill, representing the Serpentine Avenue, Tritonville and Claremont Roads (STC) group, which was set up to object to the trial cycle route, and Cllr Mannix Flynn, who is a councillor in a neighbouring area and is a serial objector to cycle routes.
Before I’d go any further, I should say that the full judgment can be read by following this link. It might be clearer when Justice Meenan outlines his final orders on August 9, but, as it stands, his judgment seems fundamentally flawed.
It is possible that this is not just down to the Judge — ie it could be the case that the Court has not been presented with the full and accurate explanations of all facts relevant to the issues which the Court is asked to decide. I cannot be sure of this because I am relying on just the court reporting and the written judgment, I have not seen everything submitted to the court, thus I cannot be fully sure that the Court was presented with all the facts and an accurate explanation of everything involved.
Beyond my rhetoric, the simple point is that the Court of Appeal would be likely to overrule the Judgement in its current state.
If judgement stands in its current state, it will have a chilling effect on the ability of Government policy of using walking and cycling as a tool to help tackle health issues such as inactivity and environmental issues such as decarbonisation of transport.
Make no mistake here, making judgement calls on projects such as the Strand Road plan is intertwined with policy and intertwined with the policy-level vision of a city with fewer trips by cars.
It is unfortunately unlikely that the council would tell the Judge the following: the traffic modelling used in Ireland conflicts with that local and national policy which looks towards fewer trips by car.
Just two months ago this website reported how Ireland’s parliamentary Joint Committee on Environment and Climate Action has said that our transport system needs to switch from the ‘predict and provide’ approach (which gives us more and more roads) to the ‘avoid-shift-improve’ approach (which gives us more sustainable transport).
Justice Meenan stated: “The applicants have brought these proceedings to seek certain reliefs by way of judicial review to halt the cycleway trial as presently proposed. It should be stated at the outset, lest there be any doubt about it, that the Court in determining this application
is not concerned with policy matters, such as the appropriateness or otherwise of the aims and objectives of the transport policy of the City Council.”
However, the Judge is — somewhat understandably, like most people — still stuck in a ‘predict and provide’ mindset. Again: It is unclear if this is due to a lack of information or other reasons such as biases.
“The effects of the cycleway trial are as follows…”
The Judge writes that “The effects of the cycleway trial are as follows…” “The National Transport Authority (“the NTA”) have calculated that this would increase the traffic on Merrion Road to the order of 114%” — it is understandable that objectors would accept traffic modelling without looking any further. However, the High Court should be looking further. Again: It is unclear to me if it was brought to the attention of the Court, but the traffic modelling has been qualified by the council with the process of consultation with the public and councillors.
The council has confirmed that the traffic modelling cannot take modal change/people shifting from cars to sustainable transport into account. The traffic model does not account for a single person switching from car to bicycle, or a single person switching from car to bus or Dart, and it does not account for a single person not making a car trip for any reason (ie work from home).
In other words, the model is of the world of the ‘predict and provide’ approach, not the world of ‘avoid-shift-improve’ which is more in line with Government policy for over a decade which has been strengthened again more recently.
Other effects of the cycle route trial according to the Judge is that “The traffic that would no longer be permitted to use Strand Road would have to use alternative roads…” and that… “Making Strand Road one way would have an effect on local access for many homes and businesses located on and off Strand Road. There are numerous such residential roads which would obviously be affected.” These lines are, however, problematic.
These lines from the Judge are making policy-level judgement calls. The Judge isn’t directly challenging Government policy, but the judgement phrases the outcomes of the policies as all negatives and as if there would be no alternatives for at least some people.
The same things could have been and somewhat were written about Dún Laoghaire-Rathdown County Council’s Coastal Mobility Route. Much like the Strand Road proposals, the main element of the Coastal Mobility Route was to make roads one-way and use the space of a former car lane to form a two-way cycle path.
There were vocal objectors in the Dún Laoghaire-Rathdown area too, but the council being able to quickly put the route in place allowed time for most people to see that it is better now than it was before.
On these claimed effects, the Judge wrote: “This was clearly understood by the City Council.” This is clearly not the case — the council has been adamant that the trial would determine the real-world effects of the reallocation of space and the cycle route functioning.
The Judge then quotes Brendan O’Brien, an Executive Manager with responsibility for transport at Dublin City Council, as stating: “…The reduction in traffic on Strand Road and the provision of a two-way safe protected cycle route as part of the Cycle Trial means that residences and business are not able to travel in a Northbound direction, rather they do so by other modes of transport, namely walking, cycling or other modes of transport allowed on a cycleway…”.
Either walk or cycle to Dublin Airport
Commenting on what O’Brien said, the Judge wrote:
“This would seem to suggest that residents and other persons in the affected roads should they wish to go to Dublin Airport would have to either walk or cycle. I am sure that this is not what was intended by the City Council but it does seem to show a level of indifference to those affected; and iv. As against the above, there would be a dedicated two-way cycle lane separated from the road. This would be to the benefit of those who wished to cycle.”
I could go into detail here on how this apparent willful misunderstanding is clearly wrong and how people have commented online about how it was a cheap shot not fit for the High Court. However, there’s a larger problem here: What the Judge is doing here is clearly making a policy judgement.
There are a host of policy documents and political statements on policy on a national and local level which make it clear that sustainable transport needs to be prioritised — including the Dublin City Development Plan, Smarter Travel A Sustainable Transport Future, National Cycle Policy Framework, the Transport Strategy for the Greater Dublin Area, the Manual for Urban Roads and Streets, the Dublin Agreement, and the Programme for Government.
This website is often critical of Dublin City Council when criticism is due. However, in the context of all of the above policies and related documents, a Judge apparently joking about people having “to either walk or cycle” to Dublin Airport and berating council officials is out of order as Judges must not be straying into policy and slating officials when they are following policy.
Somewhat further on in the judgement, the Judge wrote that the STC “Community Group proposed to the City Council an alternative cycleway trial. This proposal, according to STC, would avoid what it considered to be the adverse impacts on traffic movement in the area of Sandymount which would result from the cycleway trial proposed by the City Council.”
What the Judge does not mention is that more than one “alternative” from STC was assessed by the council or the National Transport Authority and was found to be dangerous, and inadequately non-continuous. Paradoxically for the objectors who are clearly mainly focused on the impact of motoring, all of the “alternatives” would likely have caused more traffic impacts. One suggestion by STC would have caused much greater impacts to the extent that it would likely it would have to be abandoned within hours if not days.
In separate sections of the judgement, the Judge states in his own words that “Despite the opposition of STC and others to the cycleway trial, the City Council was not for turning so it was inevitable that legal proceedings would ensue” and he quotes the city council in a letter to the complainants’ solicitors that stated: “The action by your client is clearly an attempt to frustrate the Council in providing this trial of improved cycling infrastructure on Strand Road.”
Maybe both the city council and Judge were unable or unwilling to focus too much on this issue, but I have a duty to. The STC group was set up to object to the cycle route trial. Individually they might be well-intended but combined they are bad-faith actors who were willing to do and state anything to stop the cycle route trial.
This website has covered before how the objectors had put forward pure unadulterated nonsense in the High Court as an argument against the project. But the case in point is making and standing by the “alternatives” which would have been both dangerous and worse for traffic impacts. The objectors were also willing to suggest short-term “alternatives” closer to the protected area of Dublin Bay and a longer-term option encroaching on the bay. Then they were able to go to the High Court with a straight face and use the legal protections for the bay as a way to stop the cycle route which would reduce traffic and, at worst, push motor traffic away from the bay.
Schrödinger’s Cycle Route
The Judge wrote that it is “a central factual issue” if the cycle route is “temporary” or not. This is not a point the objectors seemed to have stressed, but rather one which the judge took it upon himself to look at.
The Judge wrote:
“Mr. Stephen Dodd S.C., on behalf of the City Council, submitted that the cycleway trial was temporary, as was deposed to in the affidavit of Mr. Brendan O’Brien. No application was made to cross-examine either Mr. O’Brien or any other deponent, so this issue cannot be contested he maintained. There is substance in this submission, but I am entitled to consider all the contents of the relevant affidavits and exhibits filed on behalf of the City Council in reaching my determination as to whether or not the cycleway trial can be said to be ‘temporary’.”
He said that the cycle route trial to be temporary it must have a start date and an end date, but he does not accept that the timeframe of a six months trial is an end date because public consultation will be held five months into the trial to determine if the route will continue beyond the six months. This is in keeping with the precedent in Ireland and the UK where trials of walking, cycling and streetscape projects are made permanent after they are deemed successful.
The Judge writes: “Thus, on the last day of the six months the cycleway may or may not be removed. Clearly, if it is not removed it is not temporary.” Referring to O’Brien’s statement in his affidavit (that “If the Trial is not a success it will be removed…”), the Judge said: “It must follow from this that if the trial is a success it will not be removed. Therefore, it cannot be said that the cycleway will only be there for six months. The most that can be said is that the cycleway trial is reviewable. A reviewable cycleway is not a temporary cycleway. From this I conclude, contrary to what was submitted on behalf of the City Council, that the cycleway trial is not ‘temporary’.”
Unless the judge was trying to claim here that the council was never going to remove the cycle route — even if it was a clear failure — the Court should have accepted that the cycle route was, at least for the time frame of the trial, Schrödinger’s Cycle Route.
Nature describes Schrödinger’s Cat as the following: “In the world’s most famous thought experiment, physicist Erwin Schrödinger described how a cat in a box could be in an uncertain predicament. The peculiar rules of quantum theory meant that it could be both dead and alive until the box was opened and the cat’s state measured.”
So, the High Court should view the cycle route as Schrödinger’s Cycle Route, that is to say not temporary and also not permanent until the council looks into the box containing the results of the public consultation and all the data etc collected.
The Judge writes: “Mr Stein SC, on behalf of the applicants, submitted that the proposed cycleway was “urban development” caught by the regulations implementing the EIA Directive. He also further submitted that the cycleway was a project that fell within the provisions of S.I. 279/2019 which amended s. 50 of the Roads Act, 1993 which refers to road improvement projects which would be likely to have significant effects on the environment.”
The Judge writes: “Clearly, the proposed cycleway does not involve such an area [which mandates a full environmental assessment]. However, Class 15 of Part 2 (as provided for in S.I. No. 454/2011) states: – ‘Any project listed in this Part which does not exceed a quantity, area or other limit specified in this Part in respect of the relevant class of development but which would be likely to have significant effects on the environment, having regard to the criteria set out in Schedule 7.’”
Schedule 7 of S.I. No. 454/2011 is split into sections — the cycle route with minimal works does not seem to register with what’s listed under the “1. Characteristics of proposed development” (size of the proposed development, the cumulation with other proposed development, the use of natural resources, the production of waste, pollution and nuisances, etc); and with “2. Location of proposed development” the only thing that seems to relate is the how the project relates to existing land use changing half of a road surface into a cycle path is less impactful.
In the final section, “3. Characteristics of potential impacts”, the regulations state that “The potential significant effects of proposed development in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to… the extent of the impact (geographical area and size of the affected population), the transfrontier nature of the impact, the magnitude and complexity of the impact, the probability of the impact, the duration, [and] frequency and reversibility of the impact.”
Reading this along with a reading of screenings assessments indicates that the small-scale project such as the Strand Road trial (or potential permanent cycle route) is not with Irish or EU legislators had in mind. More on this below.
The Judge then refers to a UK High Court case, R (City of Westminster) v. Mayor of London  EWHC 2440 which dealt with a challenge against the London Congestion Charging scheme. The scheme includes nearly 200 camera sites across access points to central London with ducting and large camera poles and new signs with separate poles at many sites.
The Judge in the UK case, Kay J, said:
“In my judgment, it would strain the words of the Directive beyond a purposive construction to hold that ‘urban development project’, in the precise context in which they appear, embrace this Scheme which is, as Mr. George submits, essentially a traffic management scheme. I am disposed to the view that, in general, ‘urban development project’ connotes rather more in the nature of buildings or construction…”
But Justice Meenan takes the UK judgement and goes well beyond anything that seems to be supported in the legislation or any guidance around screening:
“In my view, what is involved in the provision of the proposed cycleway goes beyond signs and certain road markings. The cycleway will require the removal of a traffic island at the junction of Strand Road and Merrion Road, the removal of a number of mini roundabouts and the placing of barriers to separate the cycleway from the road carrying traffic. This comes within the nature of building or construction as referred to by Kay J.”
The logic here seems to have been that the UK case was only lines of paint and signs (it wasn’t, it also included ducting and large poles cameras at around 200 sites), that then anything beyond lines and paint is counted as as “urban development”.
In effect, the Judge in Dublin said that because the Strand Road project included the removal of concrete islands, the removal of mini-roundabouts and the installation of cycle track dividers, that this amounts to “urban development” under the EIA Directive. This is unsupported by legislation or guidance and so is deeply flawed.
The work outlined by Dublin City Council in the Strand Road project is extremely minor in nature — more heavy work is likely required to install the pedestrian crossings as part of the project than any other element.
To build measures of this type all around Ireland, local authorities rely on the Road Traffic Act 1994 (Section 38) as amended by the Public Transportation Regulation Act, 2009 (Section 46). The legislation allows for wide-ranging changes to existing roads and streets, including fully closing off streets to motorists. The legislation is exempted from requiring planning permission. This is the legislation Dublin City Council relies on for the Strand Road project.
Road Traffic Act 1994 (Section 38) covers “Traffic calming measures”. Section 46 of the Public Transportation Regulation Act, 2009 amends the Road Traffic Act 1994 and expands the meaning of traffic calming to include:
“’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 (whether generally or of a particular class) for the purpose of enhancing public bus services, or
( b ) restrict or control the speed or movement of, or which prevent, restrict or control access to a public road or roads by, mechanically propelled vehicles (whether generally or of a particular class) and measures which facilitate the safe use of public roads by different classes of traffic (including pedestrians and cyclists),
and includes for the purposes of the above the provision of traffic signs, road markings, bollards, posts, poles, chicanes, rumble areas, raised, lowered or modified road surfaces, ramps, speed cushions, speed tables or other similar works or devices, islands or central reservations, roundabouts, modified junctions, works to reduce or modify the width of the roadway and landscaping, planting or other similar works.”
This clearly covers the scale of “removal of a traffic island… the removal of a number of mini-roundabouts and the placing of barriers to separate the cycleway from the road carrying traffic” and far exceed it. It includes the building of (not just mini, but full) roundabouts, and the legislation supports fully restricting cars from roads or streets for pedestrianisation (as done in the city centre and other locations around the country).
The Public Transportation Regulation Act, 2009 also amends the Planning and Development Act, 2000 (Section 179 (6)) to exempt the above mention type of works from the planning system. This excludes works involving road widening — ‘road’ is defined in legislation as meaning from boundary to boundary (wall to wall or fence to fence etc).
If we follow the Judge’s current logic on this, the most minor of works such as those types listed above would all need to go to An Bord Pleanála for approval. This is not only not tenable and not practical, but it is also hardly the intent of EU or Irish legislators to drag minor works into high-level screening processes. Especially not when the legislation is designed to protect the environment and the objectors to cycle routes with very limited impacts and is likely to overall benefit the environment and help in the decarbonisation of transport.
Furthermore, the Judge seems to be in a roundabout way making Section 38 of the Road Traffic Act 1994, as amended by the Public Transportation Regulation Act, redundant without dealing with the clear intent of legislators which made such small works exempted development. It makes little sense that a host of other exempted development would be allowed without planning permission under the law — for example small extensions at the rear of houses — but that a local authority could not be able to do things like cut into traffic islands and put up cycle lane dividers without a full environmental assessment which is designed to capture projects which would have a significant negative impact on the environment.
Justice Meenan further states:
“Further, I am satisfied that the proposed cycleway is ‘road development’ for the purposes of s. 50 of the Roads Act, 1993 (as amended by S.I. 279/2019). I therefore conclude that the cycleway trial does fall within the provisions of the EIA Directive, as implemented in domestic law.”
At least regarding “urban development”, Justice Meenan went into some detail. In the case of claiming that the Strand Road trial cycle route falls under Section 50 of the Roads Act, 1993, there is no justification or reasoning given for this view.
The referenced Section 50, as amended, relates to mainly new road building and major works which likely to have significant effects on the environment. The scale of the work planned along the Strand Road route is minor and low-impact. The level of work has more in common with road maintenance than it does with major or significant road building.
The main way for a small project the size and scale of the one in question to full under the EIA Directive is a screening assessment. It seems backward than that the Judge — without anything to apparently support such — deems that the project falls under the terms of the EIA Directive, and only after this looks at the details of the screening report.
Consultants for the council found that:
“The potential for effects on the SAC and SPA, which are both European (Natura 2000) sites, is considered in detail in the separate Appropriate Assessment (AA) screening report. That report finds that the scheme is unlikely to have significant effects on those sites.”
“The proposed scheme is likely to temporarily reduce air pollution, noise and other temporarily traffic-related nuisances along the length of the scheme. It will temporarily affect traffic levels elsewhere due to displacement of northbound traffic from Strand Road. Temporary effects of displaced traffic are considered further below.”
In reply to this, the Judge states that “It will be noted that in this short comment the word ‘temporarily’ or ‘temporary’ has
been used four times. As I have found, contrary to what is asserted by the City Council, the cycleway project is not temporary it follows that the criteria “pollution and nuisances” has not been correctly considered in the screening report.” This is problematic.
As discussed above in the section ‘Schrödinger’s Cycle Route’, the Judge cannot foresee if the project is temporary or not at this stage. The project may need a new screening report if it is to be made permanent. That’s still an if rather than a given, the choice may be to discontinue the cycle route after the trial. The Judge cannot discount this.
If a new screening report is done after the trial starts and before it ends, this gives scope to include hard data rather than common sense or outdated traffic models which go against policy positions. But in his judgment, the Judge states:
“It is the case that the Court must have some deference to the expertise of CAAS Ltd, but common sense would indicate that the screening report has not properly addressed ‘the nature of the impact’ of the proposed cycleway to a considerable extent.”
“In my view, the screening report that was carried out was based on a project that was very different to the cycleway trial that is actually proposed. The screening report proceeded on an incorrect assumption that the cycleway would be temporary. Further, despite having data on traffic displacement from the NTA, the report seriously underestimated the effects of traffic displacement. Thus, the screening report is inadequate in circumstances where an EIA is required.”
This shows that the Judge is saying that “some deference to the expertise of CAAS Ltd”, but he is overruling this not with even an expert witness from the complainant, but via “common sense”.
His position on this again is intertwined with the policy issue of reducing car use — in a mature urban area, there will always be some impacts on cars and from cars when impactful sustainable transport measures are implemented. But the overall trend from implementing such measures is traffic reduction and car use reduction.
For example, nearly 90,000 cars entered the Dublin City Centre’s canal cordon count area in the morning rush hour in 1997 but that figure was down to just under 46,400 cars in 2019, pre-Covid. Between 2018 and 2019 alone there was a decline in the number of cars entering the city from 48,820 to 46,388 — this is despite an increase in the number of people entering the city centre, up from 213,920 to 217,223. Cities like Amsterdam and Utrecht show that this change can happen city-wide on a larger scale beyond the city centre.
The removal of space for cars in the city centre is part of the ‘avoid-shift-improve’ approach. It would have failed if assessed under the traffic modelling of ‘predict and provide’… and would also fail under the arguments currently in the High Court judgement.
The screening to see if the project falls within the Habitats Directive, the Appropriate Assessment screening report was also carried out by CAAS Ltd. It said:
“This is a key concern particularly for the SCI species of South Dublin Bay and River Tolka Estuary SPA. These effects are likely to be small scale, the scheme is a limited to a 6-month duration which minimises potential effects. Dublin City Council already undertake monitoring works in Dublin Bay as part of an ongoing wildlife conflict management strategy. The temporary nature of the proposed scheme and associated disturbance effects have been considered with respect to the existing management actions and monitoring protocols on site. On this basis it is considered that there are no significant effects are likely to result from the potential for increased recreational use of the site during the proposed scheme period.”
On this, the Judge said:
“It is clear that the conclusion that the effects of the cycleway ‘are likely to be small scale’ is based on the cycleway being temporary. I have concluded that the proposed cycleway is, in fact, not temporary. In my view, this fatally undermines the credibility of the screening report for AA.”
But this is flawed. Such is not clear at all from the report. The judge seems to have errored or for some reason be selectively reading the screening report and this line within it:
“These effects are likely to be small scale, the scheme is a limited 6-month duration which minimises potential effects.”
The comma here (shown above in bold to highlight it) is key: The report’s authors state that “These effects are likely to be small scale” and only after the comma do they stress: “the scheme is a limited 6-month duration which minimises potential effects”. To be clear: That line says that the effects are likely to be small scale and then added that these small scale effects will be limited again by the time frame.
The quote used by the Judge ends with it is “considered that there are no significant effects are likely to result from the potential for increased recreational use of the site during the proposed scheme period” — it is unclear why the Judge thinks with the passage of more time that no significant effects will build up into significant effects.
The Judge’s reading of this is not in line with the report’s findings. However, it very much so is in line with the Judge going against local and national Government policy on a number of levels, as well as taking “common sense” over an expert view (without any apparent alternative expert witnesses or report etc to back it up).
The Judge seems to be trying to deal with the time-limited nature of a trial without dealing directly with the nature of a trial — doing so directly would be more clearly discussing policy.
It should be stressed that no wrongdoing is being suggested on the Judge’s behalf, but — for whatever reason — the Judge seems to be misinformed or has not been presented with the full and accurate explanations of all facts relevant to the issues which the Court is asked to decide.
Even if you dismiss what this article has outlined above about the Judge’s feelings of “common sense” vs expertise, and apparent misreading of the screening report, the judgement fails to outline much more than “such development is not exempt if an EIA or an AA is required”.
Given all of the above, was it inevitable that an appeal would be mounted against the judgement? An alternative option to Judge could be ordering that a fresh screening process be undertaken as part of his final orders in the case due on Monday, 9 August.
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I hope those in DCC and the legal team for DCC have a read of this.
Thanks, Cian. Very clear, and gives me some optimism too, at least as regards other small-scale infrastructure projects not being subject to a Mannixing.
Fantastic article, Cian – a lot of work went into it. Fingers crossed.