High Court of Ireland Decisions

 


THE HIGH COURT

2002 JR 476

BETWEEN

JOHN CONDON

APPLICANT

AND

THE COUNTY COUNCIL OF TIPPERARY SOUTH RIDING AND

THE NATIONAL ROADS AUTHORITY

RESPONDENTS

Judgment of Mr. Justice Roderick Murphy dated the 2^nd day of April, 2004.

1. The applicant, of Kilcommon, Cahir Co. Tipperary, retired gentleman, claims a declaration that the second named respondent ("the NRA") had failed to comply with s. 18 of the Roads Act, 1993 and with the procedural requirements set out therein.

2. Section 18 provides as follows:-

(1)(a) The Authority shall, at least once every five years, and having regard to any guidelines given by the Minister under section 41(3) and having obtained the views of local authorities, prepare a draft plan for the construction and maintenance of national roads.

(b) The Authority shall have regard to the need for efficiency, economy and quality in the construction and maintenance of national roads and shall include an independent assessment thereof in any draft plan prepared by it under this subsection.

(2) (a) The Authority shall submit a draft plan prepared under subsection (1) to the Minister for his approval.

(b) When submitting a draft plan to the Minister the Authority shall provide information on all objections and representations received under subsection (3) and not withdrawn.

(c) The Minister may approve a draft plan, approve it with modifications, instruct that it be resubmitted to him in a modified form for approval or refuse to approve it.

(3) Before submitting a draft plan to the Minister, the Authority shall-

(a) publish in one or more newspapers a notice-

(i) stating that a draft plan has been prepared and that it is proposed to submit it to the Minister for his approval

(ii) indicating the times at which, the period (which shall be not less than one month) during which and the place where a copy of the draft plan may be inspected,

(iii) indicating where a copy of the draft plan may be obtained and specifying the fee (if any) for such copy (which shall be not more than the reasonable cost of making such copy),

(iv) stating that objections or representations may be made in writing to the Authority in relation to the draft plan before a specified date (which shall be not less than two weeks after the end of the period for inspection);

(b) send a copy of the draft plan to each road authority assigned responsibility or national roads under section 13 and serve a notice on each such authority stating –

(i) that a draft plan has been prepared and that it is proposed to submit it to the Minister for his approval, and

(ii) that objections or representations may be made in writing to the Authority in relation to the draft plan before a specified date (which shall be not less than two weeks after the end of the period for inspection referred to in paragraph (a);

(c) consider any objections or representations made to it under this subsection and not withdrawn and make such amendments or modifications (if any) to the draft plan as it considers appropriate.

(4) The making of objections or representations under subsection (3)(b) shall be a reserved function.

(5) The Authority shall annually review the implementation of a plan approved under subsection (2) and submit a report on such review to the Minister.

(6) In the performance of its functions, the Authority shall comply as far as possible with any plan approved under subsection (2).

Section 22(2) requires the NRA, when performing any function in relation to the construction or improvement of a national road (including the preparation of a draft plan under s. 18) to –

(a) consider the proper planning and development of the area in which the road is or is to be situated,

(b) consider the effects (if any) the works concerned would have on the environment of the area concerned, and

(c) have regard to the provisions of the development plan and any special amenity area order or tree preservation order relating to such area.

Sections 50 and 51 provide for an Environmental Impact Statement and assessment respectively.

Finally, s. 78 of the Act provides for powers of inspection.

3. Further Relief

The applicant also claims a declaration that the NRA is acting ultra vires (its powers) in promoting road schemes in the absence of a plan under s. 18, and an order requiring the NRA to comply with the requirements of s. 18 within such period as the court should direct and an order granting a stay pursuant to O. 84, r. 20 (7).

4. Grounds

The applicant relies on the statutory provisions that the NRA prepare a draft plan for Ministerial approval, publish notices on the making of such a draft plan, and allow the public to make representations and objections in respect of such a plan. That plan is required to have contained within it an independent assessment of the efficiency, economy, and quality of the aforesaid national roads proposed in the plan. The NRA is not entitled to proceed with the implementation of road schemes unless and until such a plan has been prepared and has been subjected to such an independent assessment. The NRA should not be entitled to proceed with a consideration of part of the N7/M8/N8 unless and until such a plan has been prepared.

5. Affidavit of Applicant

Mr. Condon, in his affidavit filed the 29^th July, 2002, said that he had lived and worked in the Suir Valley for virtually all of his life and been involved in community work for the benefit of Cahir. He was alarmed to discover that the proposed M8 motorway was to pass through the Suir Valley, that a very beautiful and legendary environment would be for ever lost, that villages would be isolated, parishes severed and a way of life destroyed. He became aware in or about January 2001 of the emerging third corridor options.

Mr. Condon says that he became president of the N8 Action Group and worked to co-ordinate and organise the public information service provided by this group. He says that he believed and was advised that pursuant to s. 18 of the 1993 Road Act, the NRA was required to prepare a plan at least once every five years and did not so comply. Prior to the adoption of such a plan the NRA was required to prepare a draft plan and allow members of the public to make submissions and observations with respect thereto. The draft plan was required to be served on each roads authority and required an independent assessment.

The NRA was required to prepare a plan, as a condition precedent, which would set out in detail the various schemes that were being prepared and their interaction with each other, so as to show that the proposals would be efficient, economical and produce appropriate quality of national roads. The plan would allow him and other members of the public to participate in and seek to persuade the local authority to modify such schemes.

By failing to prepare such a plan and to identify the schemes that it proposed to implement and by failing to allow members of the public to make submissions and observations, the road building programme was being carried out on an entirely flawed and piecemeal basis and without the statutory requirements being complied with which, he felt, would have had a major affect on the route chosen. He requested an environmental consultant to advise on the likely impacts of the scheme and referred to the affidavit of David Healy in this regard.

He also referred to the roads authority's document "N8 Cashel/Mitchelstown Road Improvement Scheme: Corridor Options Public Consultation of January, 2001" and made comments in relation thereto. Much of the arguments in relation to the Environmental Impact Statement were not proceeded with by the applicant.

6. Affidavit of Surveyor

Mr. Healy's affidavit, sworn the 24^th July, 2002, in addition to queries in relation to access to information, referred to s. 18 which, it was averred, placed substantive obligations on the NRA with regard to the adoption of the plan, including independent assessment and consultation with the local authority and members of the public and Ministerial approval.

He referred to a letter of the 25^th April, 2002, from the NRA which, he says, did not claim to have a plan nor that the National Development Plan or the Economic and Social Infrastructure Operational Programme constitute a plan for the purpose of s. 18. There was no independent assessment nor public consultation nor submissions for objections sought, nor regard to the local authority, in relation to the matter.

7. Statement of Opposition of the Roads authority

The NRA distinguished between the non-statutory public consultation already had and the statutory consultation in relation to the Environmental Impact Assessment, the Bord Pleanála public hearing and the compulsory purchase order procedures.

It pleaded that the applicant was not entitled to the relief sought. The applicant's assertions in relation to the non-statutory public consultation and information dissemination process were without substance, given the level of consultation/dissemination already engaged in to date. He has not suffered any prejudice as a result of the allegation set out in his statement grounding the application. He had available to him an adequate alternative remedy under the statutory procedures yet to be commenced before An Bord Pleanála. Accordingly he did not have locus standi.

The NRA pleaded that the proposed road development was fully in accordance with its own development plan which has had regard to Government and other national policies and objectives. The improvement of the N8 was identified as one of the priorities in the National Development Plan.

Details were given of the non-statutory public consultation, questionnaires and public meetings. The authority denied that it had failed to comply with the requirements of their procedures in the exercise of its functions, powers and duties. In relation to the non-statutory public consultation, it had far exceeded its statutory obligations for the benefit of the public in order to keep the public, including the applicant, fully informed at the earliest possible stage.

8. Mr. Michael Egan's Affidavit

Mr. Michael Egan, Head of Corporate Affairs of the NRA, believed the application for judicial review to be misconceived as the roads authority had not as yet prepared an environmental impact statement.

9. Mr. Healy, in his replying affidavit, believed that it would be appropriate that the present proceedings be commenced before the preferred route had been selected. From an environmental and practical point of view it would be proper to carry out the study pursuant to s. 18. If the respondents were prepared to undertake to comply with the requirements of s. 18, then no issue would arise. He said that the position adopted by the respondents was entirely unjustifiable because they had not indicated that they would comply.

In relation to the prejudice of the applicant, he says that he had been deprived of his right to avail of a statutory procedure.

10. Affidavit of Roads authority's Engineer

Michael O'Malley, the senior engineer in the road section of the NRA believed the proceedings to be premature, without foundation and wholly misconceived. He referred to the National Development Plan following on the National Roads Needs Study in 1998. The Environmental Impact Statement had yet to be completed, which would be done prior to the commencement of the statutory procedure provided in the Roads Act, 1993-2001. He said that the roads authority had appointed a project design team assisted by consultant engineers and referred to their report.

He outlined the non-statutory public consultation from October, 2000 to May, 2001 and to the draft route selection report approved by the NRA in December, 2001.

He did not accept that the improvements would have the disastrous consequences as alleged by Mr. Condon. Wide-ranging public consultation and information dissemination had taken place. In addition thereto, there was direct correspondence with the N8 Action Group. There had been liaison between local authorities involved in relation to each project as part of the overall N8 improvement. Those authorities were directly involved. The new road would form part of the overall N8 and not the M8.

11. Applicant's Submissions

The applicant indicated his concern about the construction of a particular road known as the Cashel By-Pass. The NRA second named respondent was in overall charge of the design and implementation of the road scheme. Part of the national road network is within the functional area of the first named respondent who are effectively the contractors charged with its implementation.

The purpose of s. 18 was to provide for an opportunity for the applicant and members of the unincorporated group, of which he is president, to make submissions in respect of such a proposal. The applicant or members of his unincorporated association, had they been given the opportunity to make submissions, might sway either the National Roads Authority or the Minister not to approve the scheme or to modify the scheme in accordance with the provisions of s. 18. This he had been prevented from doing. The failure to properly adopt a scheme under s. 18 had effectively resulted in the applicant being excluded from any meaningful participation in the implementation of the scheme. He was a person directly affected by the scheme and is a person whom the section was directly intended to benefit and indeed to protect.

References were made to Cahill v. Sutton [1980] I.R. 260, State (Lynch) v. Cooney, East Donegal Co-Operative v. the Attorney General, Blessington Heritage Trust Limited v. Wicklow County Council, SPUC v. Coogan, Crotty v. An Taoiseach, McGimpsey v. Ireland, Chambers v. An Bord Pleanála, Mulcreavy v. the Minister for Environment, Heritage and Local Government and Dun Laoghaire/Rathdown County Council and Lancefort Limited v. An Bord Pleanála.

12. Submissions of the NRA

It was submitted that the application for judicial review was inadmissible on the basis that same was premature. As appeared from the statement of grounds and, in particular, from the verifying affidavit of John Condon, the gravamen of the applicant's complaint was directed to a proposed road development between Cashel and Mitchelstown. Any such road development would be subject to the requirements of the Housing Act, 1966, as amended and extended and the Roads Act, 1993-1998 and/or the Planning & Development Act, 2000. In particular, the proposed road development would be dealt with by way of statutory procedures which have not yet commenced.

Until such time as these statutory procedures had been exhausted, and An Bord Pleanála had made a decision pursuant to the powers transferred to it under Part XIV of the Planning & Development Act, 2000, any application for judicial review was premature.

The objection of prematurity was also relevant (albeit to a lesser extent) to the ground of challenge based on the alleged failure to comply with s. 18 of the Roads Act, 1993. Section 18 allows for the preparation of a plan for the construction and maintenance of national roads. In this connection, the applicant sought mandatory relief including, inter alia, an order requiring the National Road Authority to prepare a plan pursuant to the provisions of s. 18.

In the context of these procedures, and, in particular, in the context of the oral hearing, the applicant would be in a position to ventilate any concerns which he says arise following on from his allegation that there had been a failure to prepare a plan under s. 18. In fact, the procedures before An Bord Pleanála were more satisfactory from the applicant's viewpoint in that the precise details of his objections to the particular road development could be canvassed.

There was, however, a more fundamental objection to the application for judicial review in relation to the s. 18 plan in that the applicant did not have locus standi to make an application for mandatory relief. The applicant was not in a position to demonstrate particular prejudice to him, as distinct from other members of the public. Reference was made in this regard to the decision of Maguire J. in State (Modern Homes Limited) v. Dublin Corporation [1953] I.R. 202 at 228:

"All owners of property are in theory affected by the decision of the Council to prepare and submit a planning scheme. It is clear, however, that an individual owner would not be entitled to apply for mandamus. The prosecutors, - - - - have shown that they have in fact been affected by action taken by the corporation in exercise of their powers of interim control and that they have suffered by the failure of the Council to make and submit a planning scheme. It is not necessary to attempt a precise definition of the nature and extent of the right or interest with which an applicant for mandamus must be clothed before he is entitled to apply to the court for this form of relief. This court does not accept the contention that an applicant must have a right to recover damages in an action. If this contention were correct it could mean that an alternative remedy would exist in every case, and the court would in general in the exercise of its discretion refuse an order of mandamus. The prosecutors have shown that they are prejudiced to an extent greater than other property owners in the planning district. In the view of this court it has been shown that they have a sufficient interest to entitle them to apply for an order of mandamus and it has not been shown that there is any alternative specific remedy at law available to them which is not less convenient, beneficial, or effective."

In the present case, it was submitted that the applicant had failed to demonstrate any peculiar prejudice. Moreover, the procedures under the Housing Act 1966 and the Roads Act, 1993 (in particular, the right to an independent assessment of the road development by An Bord Pleanala) represented a more than adequate remedy.

The applicant's complaint in relation to the Section 18 plan involved two quite distinct propositions. First, it was alleged that the requirement to prepare a plan under Section 18 was mandatory and, further, that the publication of the National Development Plan 2000 -2006, and the Economic and Social Infrastructure Operational Programme 2002 -2006, did not represent substantial compliance with this requirement.

The second proposition was that the NRA was acting ultra vires in promoting road schemes in the absence of a plan under Section 18. (See, in particular, Paragraph D (2) of the statement of grounds.)

It was submitted that this second proposition lay at the heart of the applicant's case and was a non sequitur. Even if the applicant could demonstrate a case for the mandatory relief sought directing the preparation of a plan under Section 18 (which was denied), it could not support a claim for relief in relation to the proposed Cashel to Mitchelstown road development.

The approval of a road development is a matter to be determined by An Bord Pleanála an independent body. The matters which that body has to consider in making its decision in this regard are prescribed under the legislation. It does not have to have regard to the provisions of any plan made under s. 18. A road development may also be subject to the requirement of environmental impact assessment under ss. 50, and 51, of the Roads Act, 1993 (as amended by the EC (Environmental Impact Assessment) Regulations, 1999). Yet again, there is no requirement to have regard to the provisions of any plan under s. 18.

In the circumstances, it was submitted that there was no impediment to the performance by An Bord Pleanála of its independent assessment of a road development in the absence of any s. 18 plan. A s. 18 plan is not a mandatory consideration. The legal position in this regard can be contrasted with that under the planning legislation. It is expressly provided under the planning legislation that both a planning authority, and An Bord Pleanála, in determining an application/appeal for planning permission are required to have regard to the provisions of the statutory development plan. Indeed, in the case of a planning authority, there is a presumption in favour of upholding the development plan in that a special procedure is required before a planning authority can grant planning permission in material contravention of the development plan.

This distinction between the two pieces of legislation is not unsurprising. It would seem from the provisions of s.18 that any plan prepared pursuant to that section operates at a national level. It would also seem that the matters which are to be included in this plan are of a very general nature. Such a plan, operating as it

does at a macro-level could not be expected to have the level of detail which one would find in a statutory development plan under the planning legislation. Accordingly, any plan prepared under s.18 could not represent a 'blueprint'

for development, in contrast to the statutory development plan under the planning legislation.

Moreover, in the case of the planning legislation, there is an express prohibition on a local authority carrying out development in material contravention of the development plan (s. 178 of the Planning & Development Act, 2000). There is no similar provision under the Roads Acts in relation to road development proposals and the provisions of any plan under s. 18.

It is also the case that the NRA has no adjudicatory function in relation to the approval of, or the granting of a 'development consent' under the legislation: this is contrast to the position of the author of the development plan, the planning authority.

It was submitted that, as a matter of law, there was no binding connection between any plan under s. 18, and the function of An Bord Pleanála in relation to the approval of a road development and/or the carrying out of the environmental impact assessment of same.

The High Court (Peart J.) in Finlay v. Laois County Council and Others, Unreported, 20^th December, 2002 had already held that there was no interdependence. This judgment was given in the context of an application for an interlocutory injunction. During the course of argument, the applicant in that case sought to prevent the exercise of a statutory right of access to lands by Laois County Council on the basis, inter alia, that in the absence of a Section 18 plan such powers did not arise.

"The plaintiff contends that the defendants are not entitled to invoke the provisions of Section 78 of the Roads Act, 1993, until they have complied with the provisions of Section 18 of that Act which imposes an obligation on the Minister to prepare a draft plan for the construction and maintenance of national roads at least once every five years. The fact is that the Minister has not yet complied with this Section. I cannot however accept that the powers contained in Section 78 of the Act are inoperative until Section 18 has been complied with. There is no such interdependence between the two Sections apparent in the Act"

Furthermore, Peart J. was satisfied that the plaintiff/applicant had failed to disclose a fair case to be tried.

Whatever the rights or wrongs in relation to the alleged failure to make a statutory plan pursuant to s. 18 of the Roads Act 1993, it was submitted that the absence of same cannot affect the carrying out of any particular road development; and, accordingly, that the only relief available to the applicant would be a mandatory order directing the making of a s. 18 plan but that no relief would be available prohibiting the carrying out of any particular road development.

It was submitted, in any event, that the applicant did not have locus standi to pursue a claim for mandatory relief in relation to the preparation of a plan under Section 18. It is well established that an order for mandamus will not be granted where there was an alternative remedy available. It is submitted that on the facts of this case there are two such alternative remedies. Insofar as the applicant himself is concerned, his rights are fully protected under the statutory procedures applicable to

the approval of a road development proposal and in respect of environmental impact assessment. In particular, the applicant has the opportunity to participate at an oral hearing.

There is also the fact that the duty, such as it is, under s. 18 is enforceable by the Minister for the Environment. As appears from a reading of the provisions of s. 18, the Minister for Transport has a supervisory function in relation to the

preparation of a draft plan. For example, the National Roads Authority is required to submit a draft plan to the Minister for his approval. Under s. 18(2)( c) the Minister may approve a draft plan, approve it with modifications, instruct that it be resubmitted to him in a modified form for approval or refuse to approve it.

Accordingly, if there has been a breach of s. 18, the correct person to seek a remedy in this regard is the Minister. It is submitted that the Minister can either do this under the existing provisions of s. 18 itself, or by the making of an application for judicial review, in his name, to the High Court to direct the matters to be attended to. At all events, the one thing that is clear, is that a person such as the applicant who has not suffered any peculiar prejudice cannot have locus standi to seek such mandatory relief.

At all events, it is the National Roads Authority's case that there has been substantial compliance with the requirements of s. 18 in circumstances where the following plans have been published: the National Development Plan 2000 - 2006, and the Economic and Social Infrastructure Operational Programme 2000 - 2006. In the preparation of the National Development Plan regional authorities were invited to make submissions identifying the investment priorities for their area. In preparing such submissions there was a significant level of consultation with local and public authorities. Indeed, written submissions were invited from the public and regional interests by advertisement in local newspapers. In order to ensure that regional submissions were given the consideration in the context of the determination of national priorities, the Department of Finance circulated these submissions to the relevant Government Departments for consideration in the context of developing and refining their own sectoral proposals for the National Development Plan. Therefore the views of the regional authorities and the public were taking into consideration in formulating the National Development Plan. Strictly without prejudice to the foregoing the absence of a plan pursuant to s. 18 of the Roads Act, 1993 has not prejudiced the level of consultation and input by any regional authorities and or the public in respect of any individual road development being pursued.

In terms of independent assessment, the National Development Plan transport provisions as further set out in the Economic and Social Infrastructure Operational Programme, 2000-2006, are currently the subject of a mid term review. The process is being overseen by the ESIOP Monitoring Committee, chaired by the Department of Transport, with members representing the European Commission, the social partners, regional and local authorities and implementation agencies, including the NRA. Further, in the preparation of the National Development Plan, the ESRI was commissioned to carry out an assessment of key priority areas for investment, including investment in the road network. The mid-term review, now underway, is being informed by a further evaluation prepared by the ESRI and a report prepared for the NDP Evaluation Unit of the Department of Finance by INDICON consultants.

13. Submissions of the Roads Authority

The first named respondent, the Tipperary South Riding County Council is the relevant roads authority. Pursuant to the provisions of the Roads Act, 1993, as amended, there is an obligation on the Roads Authority to prepare a statement of the likely effects on the environment of such proposed road development which is prescribed under s. 50(1)(a)(iii). The proposed road development in question here is, by virtue of Article 8 of the Roads Regulations 1994 such a proposed road development.

A proposed road development shall not be carried out unless the Minister has approved it.

By virtue of s. 215 of the Planning and Development Act, 2000 the functions of the Minister have now been transferred to An Bord Pleanála. By virtue of s. 220 of the 2000 Act, the person holding the prescribed oral hearing is entitled to hear evidence on the likely effects on the environment of the proposed road development.

The functions of An Bord Pleanála to approve a proposed road development requires a statutory public consultation procedure to be complied with as set out in s. 51 of the Roads Act, 1993, as amended. This involves, inter alia, making the public aware of the time, period and place where a copy of the statement may be inspected, the making of submissions by any person and a requirement to send a copy to prescribed bodies. In addition An Bord Pleanála may require additional specified information in relation to the likely effects on the environment of the proposed development to be supplied by the road authority. Before approving the proposed road development, An Bord Pleanála must consider the statement, any additional information furnished, any submissions made in relation to the likely effects on the environment and the report and any recommendations of the person conducting a public oral hearing which takes place prior to such approval.

Thus, the Applicant appears to have made complaint in relation to aspects of the non-statutory public consultation/information dissemination procedure which has occurred prior to the statutory consultation procedures contained in the Roads Acts 1993-2001.

The Applicant in these proceedings purported to pre-empt and pre-judge the preparation and publication of an environmental impact statement in relation to the proposed road development as part of the Environmental Impact Assessment (EIA). The Applicant was not in a position to substantiate any complaint in relation to the adequacy of an environmental impact statement which has yet to be completed and published. In the circumstances, the Applicants claim that there was or is a failure to comply with Council Directive 85/337/EEC could not, at this juncture, be substantiated. Neither An Bord Pleanála nor the Court (by way of judicial review) is in a position to address such a complaint.

In the circumstances, it was submitted that the reliefs sought by the Applicant against the Council are entirely premature, misconceived and are without foundation.

In addition, the applicant had failed to discharge the onus of establishing that the preparation of an environmental impact statement for the proposed development is irrational and/or contrary to plain reason or common sense -see O'Keeffe v An Bord Pleanála [1993] 2 IR 39.

Having regard to the statutory provisions of ss. 50/51 of the Roads Act 1993, as amended, there is no basis in law for the proposition that an environmental impact statement must be carried out for the entirety of the N8 improvement because the "proposed road development" as that term is used in s. 50 of the Roads Act, 1993, as amended applies to the Cashel/Mitchelstown Road Improvement Scheme. Furthermore, the Applicant appears to disregard one of the requirements in the preparation of the EIS enshrined in the legislation, in s. 50(3) to provide:-

"(c) a description of the likely significant effects (including direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative) of the proposed road development on the environment resulting from

- the existence of the proposed road development,

- the use of natural resources,

- the emission of pollutants, the creation of nuisances and the elimination of waste, and a description of the forecasting methods used to assess the effects on the environment; to the extent that such information is relevant to a given stage of the consent procedure and to the specific characteristics of the proposed road development or type of proposed road development concerned, and of the environmental features likely to be affected, and the road authority preparing the environmental impact statement may reasonably be required to compile such information having regard, inter alia, to current knowledge and methods of assessment."

It appears to the Council that the gravamen of the complaint relates to the failure on the part of the NRA to prepare a plan as provided for in s. 18 of the Roads Act, 1993 –as referred to in paragraphs 4 and 7 of the Supplemental Affidavit of David Healy. In other words, the gravamen of the applicants claim in these proceedings is that the Council has selected the preferred route without a plan under s. 18 and that an environmental impact assessment should not be carried out unless and until such a plan is in place.

In relation to the applicants' complaints of non-compliance of s.18 of the Roads Act, 1993, the Council referred to and relies upon the Statement of Opposition filed on behalf of the NRA and to the Outline Written Submissions filed in behalf of the NRA. In addition, it was submitted that such a plan was not, for example, similar to a development plan within the meaning of the Planning Acts in that, as a matter of law, there is a statutory obligation in the Planning Acts for a planning authority to secure the objectives contained in a development plan and also not to materially contravene the objectives contained in the said plan. Nowhere in the Roads Acts, 1993-2001 are there any provisions of such similar legal effect as those which are contained in a statutory development plan under the Planning Acts. Furthermore, the proposed road development complies with one of the stated objectives of the County Development Plan -see para. 25 of Affidavit of Michael O'Malley sworn on behalf of the Council.

The applicant claims, in the first place, declaratory relief. It was submitted that the applicant has failed to establish any grounds upon which he is entitled to declaratory relief. In relation to the route selection conducted by the Council, the applicant is out of time.

Any complaints the applicant has in relation to the preparation and/or publication of an environmental impact statement are premature and misconceived.

The adequacy of the Environmental Impact Statement, as part of the EIA process, cannot be assessed unless and until the statutory process is initiated and the ultimate approval of the proposed road development under s. 51 of the Roads Act, 1993 as amended. It is the statutory function of An Bord Pleanála to assess the adequacy of the EIS as part of the EIA process, subject to the limited right of review by the Courts on the grounds of unreasonableness/irrationality.

The Applicant has failed to establish any grounds of breach of fair procedures and/or breach of legitimate expectation in relation to the non-statutory public consultation nor have same been particularised.

In any event, the Applicant has the right to fully participate in the statutory public consultation procedure which has yet to take place.

There are no grounds for prohibiting the first named respondent from proceeding to comply with the requirements of ss. 50 and 51 of the Roads Act, 1993, as amended.

The Applicant has failed to discharge the onus of establishing any grounds of irrationality/unreasonableness on the part of the Council during the course of the non-statutory consultation process.

As a matter of discretion, the Applicant is not entitled to the relief claimed as against the Council on the basis of Devlin v Minister for Arts, Culture and the Gaeltacht 1999 1 IR 47 at page 58.

In all the circumstances, the relief being claimed by the Applicant ought to be refused.

14. Decision of the Court

The net issue before the court is the non-compliance with s. 18 of the Roads Act, 1993. There is no definition of a draft plan contained in the interpretation section of this Act. No guidelines have apparently been given by the Minister under s. 41(3).

The starting point is by way of needs analysis in relation to efficiency, economy and quality in relation to the construction and maintenance of national roads. It requires an independent assessment.

Its application is to govern the performance of the functions of the NRA who, pursuant to sub-s. 6(6) of the section, are required to comply with the plan, when approved by the Minister, as far as possible.

Before approval by the Minister the NRA must allow objections or representations to be made in relation to the draft plan by way of notice indicating a period of not less than one month during which it may be inspected. The NRA must consider any objections or representations made to it and make such amendments or modifications (if any) to the draft plan as it considers appropriate.

The draft plan, notwithstanding the above, has a narrow focus that is the construction and maintenance of national roads, having regard to efficiency, economy and quality in relation to that construction and maintenance.

It is clears from the National Development Plan that the national roads programme plan has been subsumed into a much wider context as is clear from its introduction in general and from the economic and social infrastructure operational programme chapter 3, in particular.

It would appear to be common case that, prescinding from the obligation imposed by s. 18, that, other than the technical matters in relation to title and notice and, possibly, independent assessment that the content is more amply contained in the National Development Programme.

It is difficult, of course, to know exactly what was, or is, required by s. 18, given that the Minister has not given any directions or guidelines pursuant to s. 41(3). There is no precedent for such plan as none has been made since 1993. Indeed, there could have been no argument up until 1998 with regard to the obligation of the NRA to submit such draft plan for public inspection. Indeed, the NRA itself would not have to consider its own plan until it was approved by the Minister.

It should be noted that there is no provision for enforcement, such as a penalty, nor is there any reduction in the powers of the NRA to discharge any of its general functions under s. 17 or specific functions under s. 19 of the Act. The only direction given is that the NRA, in the performance of its functions, should comply as far as possible with any plan approved by the Minister.

It would seem to follow that the Minister is the recipient of the report; and that it is not active without the Minister's approval. It would seem to follow that the Minister is the appropriate body to enforce compliance with the section.

The Minister has not taken steps to enforce the provision nor has issued no direction nor guideline in relation to the implementation of the section by virtue of s. 41 or otherwise.

The applicant in this case says that he is entitled to rely on the provisions of the section particularly the public consultation provisions. There is, in the relief sought, no express relief for mandamus in relation thereto. The closest the applicant comes to such a requirement is at para. 3 of the relief sought:

"An order requiring the second named respondent to comply with the requirements of s. 18 of the Roads Act, 1993 and to prepare a plan so as to comply with the requirements of s. 18 within such a period, as this Honourable Court shall direct."

While it would, be proper, in a State side application, to provide for express relief by way of mandamus the court can give such further or other relief as it deemed fit and meet, to include such relief.

The court should consider, in this regard, whether either of the respondents was asked to do so in the correspondence preceding the judicial review proceedings. The applicant did not do so. His affidavit refers to s. 18 in paras. 6-9, where he says that the NRA does not appear to have complied with their obligations under s. 18 and had not prepared a plan.

At para. 10 the applicant says that what is required is that as a condition precedent of any scheme, the NRA is required to prepare a plan which would set out in detail the various schemes that were being prepared and how one would interact with the other so as to show that the aforesaid proposal would be efficient, economical and produce appropriate quality of national roads within this jurisdiction, and allow him and other members of the public to participate in and seek to persuade the local authority that the schemes be perhaps modified.

It seems clear that the purpose for which the applicant is objecting to the absence of a s. 18 plan is to participate in and seek to persuade the local authority to modify the schemes. He does not say to what extent he has already been given an opportunity to participate in and seek to persuade the local authority in relation to the three stages of non-statutory public consultation already had, nor does he refer to further future consultation in relation to the Environmental Impact Statement, and public enquiry before An Bord Pleanála.

There were no directions or guidelines from the Minister nor was there any precedent in relation to the s. 18 plan. Even if there had been a plan that plan could not have been sufficiently specific so as to allow him to persuade the local authority with regard to the particular scheme with which he is concerned. It would appear that the plan would, necessarily, be countrywide and general in nature.

Mr. Healy's affidavit refers to correspondence with the NRA. His letter of the 25^th March, 2002 requested documentation including the plan in compliance with
s. 18. On the 25^th April, 2002, the National Roads Authority replied saying, inter alia, that the detailed planning and design of national schemes was a matter for individual local authorities. They further said that the authority's activities in relation to national roads over the period 2000-2006 were set out in the National Development Plan and further elaborated upon in the Economic and Social Infrastructure Operational Programme, 2002-2006.

Neither the applicant, nor his solicitor nor Mr. Healy on his behalf, requested the production of any such plans.

It is difficult to see what prejudice the applicant has suffered in relation to the non-compliance by the NRA with s. 18 other than that the applicant has been deprived of his right to avail of a statutory procedure which he is entitled to participate in" in the following terms." The question of the applicant's prejudice was, in fact, dealt with by Mr. Healy in his supplemental affidavit sworn the 4^th March, 2003, at para. 16.

One would have expected the applicant himself to say what specific prejudice he suffered in relation to his participation in and seeking to persuade the local authority to modify the scheme. There is a certain air of unreality in the applicant's claim. The court is not told where he resides or has business in relation to any of the options being considered nor, indeed, in his participation in the non-statutory public meetings and consultations already held.

The court has a certain unease with regard to applications for judicial review being proceeded with in the abstract. Moreover, it seems that there is no decision which is being judicially reviewed: it appears to be a technical point somewhat remote to the applicant's concern.

Judicial review is a discretionary remedy of the court in relation to specific remedies on grounds of real substance.

In relation to planning, s. 50 of the Planning and Development Act, 2000 provides exacting standards for judicial review applications.

The present application does not relate to a planning decision. However, it does relate to a proposed development in relation to which there is a need, and moreover, an obligation on the roads authority to implement the provisions of its own development plan.

The s. 18 plan cannot, in my view, be equated with a county development plan in relation to the obligations undertaken by the planning authority and the issues in relation to contravention. The roads authority has an obligation which is unrelated to the obligation of the NRA in relation to its plan.

Curiously, in this case, there is no relief sought against the planning authority given that the applicant has not proceeded in relation to the European elements of the relief and grounds in relation thereto. The only relief is the stay pursuant to O. 84, r. 20(7). That provides as follows:

"(7) Where leave to apply for judicial review is granted then –

(a) if the relief sought is for an order of prohibition or certiorari and the court so directs, the ground shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the court otherwise orders;

(b) if any other relief is sought, the court may at any time grant in the proceedings such interim relief as could be granted and an action begun by plenary summons."

It would seem that no interim or interlocutory relief was sought at the leave stage nor has any application been made to this court in relation thereto. Para. 16 requested "such interim or interlocutory relief" but such was not moved before the court. The order prohibiting the roads authority from taking any further steps related to the European aspect of the Environmental Impact Statement and the requirements of the Council Directive which was not proceeded with.

The relief against the second named respondent, the NRA, does affect the obligation of Tipperary South Riding, the roads authority, in respect of which no relief was sought.

In particular, it seems to me that the applicant must exhaust the opportunities provided for consultation already offered and those opportunities under the statutory provisions which will be offered, before applying to the court for judicial review in respect of further consultation. No details of the applicant's participation and representation is referred to in his affidavit.

Leave had been granted by McKechnie J. on the 30^th July, 2002 in relation to much wider reliefs and grounds. The matter came for hearing in February, 2004, over eighteen months later, in relation to fewer reliefs and narrower grounds. No reasons were given for the delay in this matter coming for hearing. Judicial review is an expeditious process. In the circumstances the court cannot accede to the application.