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2026 IEHC 255

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 DE

§7.65.

43 Chapter 5, Regulatory Signs, p.

  1. 44 From “Blanchardstown to City Centre” Core Bus Corridor Preferred Route Public Consultation March
  2. It is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p
  3. Map 28 is on page
  4. 16 Lissan Coal v ABP & NTA [2026] IEHC 255
  5. 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.”
  6. 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
  7. 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.
  8. 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
  9. It is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p
  10. Map 36 is on page
  11. 46 Emphasis added. 47 Affidavit of Daniel Loughran sworn 17 April 2015 §
  12. 48 Affidavit of Michael Loughran sworn 15 August 2024 §
  13. 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
  14. 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
  15. 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
  16. 50 Dublin City Development Plan 2022 –
  17. “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 §
  18. 18 Lissan Coal v ABP & NTA [2026] IEHC 255 Figure 2 – Scheme Map 29 - Extract 19 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
  19. 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
  20. 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.
  21. 56 EIAR §10.2.1.
  22. 57 Though slightly clumsily worded, this clearly describes the position prior to the implementation of the bus gate. See Day 1 12:
  23. 20 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
  24. The impacts on the Filling Station in the construction and operational phases are summarised in the EIAR,59 as follows: Residual Impact Description Impact Significance (Pre-Mitigation) Residual Impact Significance (Post-Mitigation) Commercial Accessibility Negative, Very Significant and Long-Term - Negative, Very Significant and Long-Term Go Station (Aughrim Street)60 – Go Station (Aughrim Street) CPO & LISTS OF PUBLIC RIGHTS OF WAY TO BE EXTINGUISHED, RESTRICTED OR INTERFERED WITH
  25. 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.
  26. 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
  27. Summary of Significant Residual Impacts, Table 23.
  28. 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 §
  29. 21 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.
  30. 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.
  31. 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.
  32. 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. 22 Lissan Coal v ABP & NTA [2026] IEHC 255 S.51 PROCESS - LISSAN SUBMISSION AUGUST 2022, NTA REPLY JANUARY 2023 & LISSAN REPLY JULY 2023
  33. 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.
  34. 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.
  35. 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.
  36. 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
  37. 66 Tent Engineering Ltd. 23 Lissan Coal v ABP & NTA [2026] IEHC 255
  38. 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.
  39. 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
  41. 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.
  42. 24 Lissan Coal v ABP & NTA [2026] IEHC 255 INSPECTOR’S REPORTS & IMPUGNED DECISIONS
  43. 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.
  44. 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.
  45. 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.

- 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-

  1. 69 Inspector’s CPO report §
  2. 70 Inspector’s CPO report §6.2, citing Clinton v An Bord Pleanála (No. 2) [2007] 4 IR
  3. 25 Lissan Coal v ABP & NTA [2026] IEHC 255
  4. 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
  5. 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.
  6. 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.

§7.23.

26 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.”

  1. 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
  2. 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.
  3. 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.

§9.18. 73 King v An Bord Pleanála [2024] IEHC 6, [2024] 1 JIC 2201. 74 Galligan & Mc

Grath, 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

  1. 27 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
  2. The Inspector recommended that the Scheme be approved and that the CPO be confirmed, without modifications. INSPECTOR ON LISSAN OBJECTION & OBSERVATION THEREON
  3. o o o
  4. In Appendix 1 of her s.

, the Inspector summarised Lissan’s submission as follows: “

  1. LC Properties & investment In relation to Lissan Coal Company – Filling station Trade will be reduced as a result of works, significant recent investment will be impacted significantly. TENT Engineering prepared a traffic impact report for station owners, which shows reduction in trade from 1727 passing cars to
  2. Attack on private property rights as compensation is not offered and party is not a notice party to CPO.”79 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.

§7.78.

& 7.94. 77 Inspector’s S.

§7.85.

78 Inspector’s S.

§7.86.

79 Emphasis added. 80 Inspector’s S.

§7.79.

28 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

  1. 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.
  2. 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.
  3. 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.

§7.84 – emphasis added.

82 Day 2 11:

  1. 83 Day 2 16:
  2. 84 Day 2 16:
  3. 85 Re XJS Investments Limited [1986] IR
  4. 29 Lissan Coal v ABP & NTA [2026] IEHC 255 IMPUGNED DECISIONS
  5. 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.
  6. 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.
  7. 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
  8. 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
  9. 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. 30 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)(
  1. 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.
  2. d)S.213
(2)(
  1. 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.
  2. 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.
  3. 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
  4. 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)(
  1. a)A local authority may, for the purposes of performing any of its functions … do all or any of the following: (
  2. i)acquire land, permanently or temporarily, by agreement or compulsorily, (
  3. 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), (
  4. ii)and (iii) are referred to in this Act as an “acquisition of land”. 31 Lissan Coal v ABP & NTA [2026] IEHC 255
  5. h)Also, Lissan were wrongfully and without stated reason, refused an oral hearing of their objection to the Impugned Decisions.
  6. 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. 32 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 33 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) 34 Lissan Coal v ABP & NTA [2026] IEHC 255 PDA
  1. • 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
  2. COMMISSION’S POSITION - EVIDENTIAL MATTERS
  3. 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
  4. 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
  1. ▪ 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. 35 Lissan Coal v ABP & NTA [2026] IEHC 255 entitlement to seek compensation.
  2. 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
  3. 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.
  4. 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:
  5. 36 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
  6. The NTA98 is governed by the DTA
  7. 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
  1. Accordingly, the provision of bus gates falls within the statutory functions of the NTA.
  2. 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)&(
  1. 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 — (
  2. 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 -
  1. Strategic traffic management plan.
  2. Local traffic plans.
  3. Traffic management guidelines.
  4. Directions to road authorities.
  5. Performance by Authority of functions of road authority.
  6. Allocation of public funds to road authorities for traffic management.
  7. Agreements and arrangements between road authorities in relation to traffic management and other functions of Authority.
  8. Demand management. 37 Lissan Coal v ABP & NTA [2026] IEHC 255 ROAD TRAFFIC LEGISLATION
  9. 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.
  1. 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”
  2. 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
  3. 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
  4. 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. 38 Lissan Coal v ABP & NTA [2026] IEHC 255
  5. 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
  6. 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
  1. 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.
  2. 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
  1. 117 Leaving aside, of course, any prospect of adverse effects on the integrity of European Sites – an issue irrelevant here. 39 Lissan Coal v ABP & NTA [2026] IEHC 255
  2. 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 significa

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