President of the High Court, David Barniville, yesterday said it was a “critical issue” in the High Court judgement that it was not accepted that the Strand Road trial was temporary even after a start date and a 6-month timeframe were outlined by the council in its traffic signs order and elsewhere.
The Court of Appeal reserved judgment on the appeal of the High Court judgment against the 6-month Strand Road cycle route in Sandymount in Dublin.
The case has now included three days in the High Court, another three in the Court of Appeal and 28 affidavits. A central issue in the case is the workings of Section 38 of the Road Traffic Act, which is used by councils to implement traffic calming and walking, cycling and bus priority measures.
The appeal is against the High Court ruling in favour of Peter Carvill, of the Serpentine Avenue, Tritonville and Claremont Roads (STC) group, and Cllr Mannix Flynn (independent) who took the case against the council.
The hearing yesterday was presided over by High Court President David Barniville, now Supreme Court Justice Maurice Collins, and Justice Mary Faherty,
Justice Collins said that the STC’s legal team had the chance to cross-examine Brendan O’Brien, head of the council’s transport department, on the issue of his evidence in affidavits giving evidence that the trial would be temporary but didn’t do so.
Justice Collins said that it is significant for the council and O’Brian that his evidence was dismissed by the High Court without reason.
There was also debate on what temporary meant and if it was open to assessment which might lead to the measures being retained after a positive assessment and any possibly required further environmental screening.
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David Browne, the barrister for STC, argued the appeal case was moot because the administrative order for the trial had been retracted by the council. He outlined that the High Court judgment went further than the group had wanted.
Referring to Browne’s outline of the High Court judgment that planning permission was required, Justice Collins said that the “conclusion is wrong”. He said it was an “explicit statement” that appears intended to “bind the council in the future”.
Justice Collins said that if the High Court decision was incorrect that needs to be corrected rather than letting such a precedent stand. He said that it would be wrong to let a judgment stand that implies virtually any form of traffic calming requires planning permission.
The rescindment of the order was required because the start date had lapsed said Stephen Dodd, senior counsel for Dublin City Council. He added that the case covers a live issue and could not be seen as moot as the council has outlined its intention to proceed with the trial if the court allows it.
Dodd said there are enormous implications if the High Court judgment was allowed to stand. He said it would also be a waste of court resources not to make a determination now as the issue would likely be revised in court at a later date.
Dodd said that a fresh process would be needed but, while the environmental screening process may have to be looked at again, it might not have to be revised. The screening process is designed to determine if more substantial environmental assessments are required and, if this is the case, the requirement for the council to apply to An Bord Pleanála is triggered.
He apologised on behalf of the council that it was not brought to the attention of the High Court that the traffic signs orders had been rescinded.
It was put forward that O’Brien made the decision himself in his office on February 8 before it was presented to councillors and widely published, but no order or note of the decision was recorded in writing on that date.
Browne argued that the Section 38 decision should have been written down even if it was not proscribed in the legislation. He referred to fair procedures requirements that had been met and referred to case law on the issue.
Browne argued over the timeline for what date counted as the decision having been made. He viewed the decision as being tied to the Section 95 order made on February 25 — this order relates to traffic signs. In law, ‘signs’ includes painted road markings, although not physical barriers such as kerbs.
President of the High Court Barniville outlined how it was poor administration practice not to have the Section 38 decision written down and Justice Collins added that it couldn’t be called anything but poor administrative practice not to record the decision in writing.
Dodd outlined that a distinction had to be made between poor administrative practices and what is a legal requirement.