— Criticism of Dublin City Council for process used on Strand Road is unfair and unjustifiable.
COMMENT & ANALYSIS: IrishCycle.com is no stranger to criticising Dublin City Council, where justified. But criticising them for the process used on their Strand Road project is unfair, and strange if you really want more ambitious cycle routes in light of our climate inaction and health inactivity crises.
UN Secretary-General António Guterres said the IPCC report yesterday was “a red alert for our planet. It shows Governments are nowhere close to the level of ambition needed to limit climate change to 1.5°C and meet the goals of the Paris Agreement.”
A few people have criticised the council on this, but Sunday Business Post columnist Elaine Byrne devoted her weekly column to the subject, so, let’s look at her arguments. Byrne wrote:
“…the purpose of the judgment was to examine the process of how the authority decided upon the installation of a cycle path… This vital distinction between policy and process got lost in some of the commentary after the judgment was
The problem is — as IrishCycle.com covered last week in a 5,000 article on the subject — Justice Meenan might have written that he 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”, but he then went onto policy matters and seems to have made judgements on policy matters.
Judges can be wrong and as covered last week, there seems to be strong grounds for appeal, including Justice Meenan interfering on policy issues.
In the UK, shortly after the Strand Road judgement was issued, the UK Court of Appeal justices overruled and criticised a UK High Court judge for also straying into policy issues in regard to a walking and cycling scheme in London. The UK and Irish High Court judgements might not be directly comparable, but there are echoes of what happened in the UK apparent in the Stand Road judgement.
Byrne’s article is littered with phrases like the following one that seems to misunderstand the case and traffic law:
“The city council argued that the cycleway was a ‘traffic calming measure’, which thereby made the project exempt from any public consultation under the road traffic legislation. It also argued that it was a temporary measure, which meant the project would not have to undergo the rigours of an environmental screening process.”
First, the measures the council were undertaking are defined as traffic claiming not by the council but in primary legislation:
“’Traffic calming measures’ means 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 is also classed by primary legislation as exempted development. It is highly problematic that Justice Meenan does not engage with the legislation which the council are using, which it has been directed to use by the National Transport Authority and the Department of Transport.
The Judge went about this in a roundabout way by classing the project as “urban development” under the Environmental Impact Assessment Directive and a “road development” under the Road Traffic Acts, both of which would trigger a full impact assessment. He did this without outlining much to back up those two claims when it is highly unlikely that lawmakers in Europe or in Ireland wanted such a small level of construction to trigger a full impact assessment. Such a trigger is designed for projects like motorways or schemes which might affect waterways etc.
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If the judgement from Justice Meenan is let stand you could be looking at the need for environmental assessments for installing a roundabout with a few zebra crossings — because that’s the level of construction involved in the Strand Road project.
Secondly, the road traffic acts legislation does not require any public consultation on such measures, but — unlike what can be inferred from the article — the council engaged in extensive consultation despite the lack of a requirement for such. Central to the case, however, Justice Meenan indicated that he wasn’t really concerned about consultation and ruled against the complainants that the EIA screening process should include consultation.
Thirdly, the council did undergo the environmental screening process. It didn’t go into the full assessment because the screening process said it should not. The Judge just nitpicked at this, including what seems to be a misreading of the screening report to mean that the project has limited effects just because it was to be temporary — the report actually said it would have limited impacts and those impacts would be limited further by its temporary nature.
But this involved the Judge entering into the issue of policy on the question of if a trial could be temporary or not. The Judge does not think that the measures can be called temporary if is possible that at the end of the trial that the measures are reviewed, deemed a success, and made permanent. The council also said it would remove the measures if such were not deemed a success.
Some people argue that a trial is not a real trial unless it is removed at the end, and then assessed. This is however a policy call, not a legal one. If it was a legal issue, the remedy could be for the Judge to order the council not to proceed to make the project pertinent without further screening or for the Judge to leave it open for the complainants to go back to him etc.
In the case of a trial of a road safety measure, it could also be deemed as a dereliction of duty if a trial that seems to be working to improve road safety is removed while it is being reviewed. It is standard practice in the UK, which Justice Meenan references in other respects.
Byrne writes that “This is no way for a city council to behave. There are enough opponents of cycling initiatives out there without having a flawed process ready and waiting to be challenged. The process instigated by the city council was an open goal for opponents to the cycleway.”
The above is flawed thinking — projects are challenged regardless of what process is used. As Brian Deegan, a well-known UK-based street design engineer, explained a few years ago: “I have learned a great deal in the past 20 years, having faced several judicial reviews. At one stage I did not think I was doing my job properly unless I ended up in court. One of the things to bear in mind is that it will be a problem.”
The idea that you can have a process — be it legal or extensive engagement — that will placate objectors to cycle routes is idealistic at best. In practice it is fancifully rhetoric that toxically distracts from progress.
Byrne rounds up by stating:
The city council in Amsterdam did not take shortcuts or half-hearted measures. They went all in. They could do so because they had public support. That is the challenge Dublin City Council finds itself faced with. If Dublin is to go Dutch, then we must be far more ambitious for our capital city, and win hearts and minds by advocating for mindset change rather than personalising the argument.
Opinion polls show Dublin City Council has support to make the city more liveable and cycling-friendly, and the public consultation for Strand Road showed majority support for the project. Progress in Amsterdam included residents blockading streets and protesters getting into scruffles with angry motorists, so, let’s no paint is as there was no opposition in Amsterdam.
The problem is also that there were no shortcuts being taken by Dublin City Council, they were using the legal process they were told to use. And it is exactly the type of legislation needed if we want climate action.
As for claims that it amounted to half-hearted measures or the need for ambition — I don’t think many involved in campaigning for or designing cycling infrastructure thinks the Strand Road project was half-hearted or overall lacked ambition. It is similar to traffic reduction schemes undertaken by Mayor of Paris Anne Hidalgo which are lauded over for their ambition.
Evoking the Dutch, who got to where they are partly because residents who had enough took to the streets and blocked cars, does not make much sense. I douth many newspaper columnists would support such and they would have a field day over the name of one of the main protest groups — Stop The Child Murder.