Bord Pleanala ‘failed to consider cyclists’ in Kerry road ruling

A failure by An Bord Pleanala to consider the needs of cyclists and pedestrians when refusing permission for a major road widening scheme extending 28km between Tralee and Daingean (Dingle) in Co Kerry has led to a High Court order overturning that refusal.

The Board, in its relatively new capacity as a roads authority, failed to consider the needs of cyclists and pedestrians when rejecting Kerry County Council’s scheme to widen and straighten a 28km stretch of the busy N86 and include cycleways on both sides, Mr Justice Peter Charleton said.

There was also “no evidence of regard” to the strategy of Government and official bodies for development of cycling and cycle tourism.

The complexity of the relevant legislation, the Road Acts 1993-2007 and Planning Act 2000, has made the Board’s task regarding road planning authorisation and refusal “very difficulty indeed”, the judge noted.

Both the Board and Council showed considerable care in discharging their tasks and it was “a pity” provisions of the 2000 Act allowing for formal structured consultations seemed only to apply to gas and electricity installations, not roads.

Formal consultation might have been the way forward in this case but the law does not provide for it despite the “unusually complex burden” now imposed on the Board in road approval cases.

Informal consultations, while unable to legally fetter the Board’s discretion, might still help in finding a way forward in similar road approval cases where applicants and the Board are working towards providing for cyclists and pedestrians, he said.

He was upholding the Council’s challenge to the Board’s September 2013 rejection of permission for the N86 scheme, including a cycleway on each side of the road, plus a hard margin for maintenance and pedestrian use. A 5km stretch of the road already has a fenced off cycleway.

The Board accepted there was a need to upgrade the road but said the Council’s plan involved excessive intervention into the landscape.

If the proposal was modified to make the road less wide and excluded the cycleways, permission might be granted, it indicated. It noted development of a long-distance cycle route linking Tralee and Daingean accords with national policy and would complement the development of Daingean as a cycling hub town albeit a different route was envisaged in that national strategy. By a three to two majority, it found the cycleway justification was not sufficient to overcome landscape concerns.

Mr Justice Charleton said everyone agreeed the road badly needed upgrading but the Board’s view was the road should not be so wide as to be obtrusive on the landscape. Cars were to be accommodated but cyclists were to share the road with other vehicles. The Board had the view cyclists did not use this particular road much and essentially would use any road.

The Board also believed cyclists, and pedestrians, would be provided for on an alternative dedicated greenway cycle trail in the future. “Experience shows that these schemes take years to come to fulfilment, if they ever do,” the judge said.

Those were not issues for him, his concern was the law, he said. As a result of the Roads Act 2007, the Board had replaced the Minister for Transport in approving or refusing road schemes and must consider if the relevant authority had fulfilled its statutory responsibilies, including considering the needs of all road users. It also could not be argued a Government policy could be excluded.

He could not construe the “labyrinthine interaction” between the Planning and Roads Acts so as to conclude they allowed the Board grant permission only if an alternative cycleway was constructed. That was outside the Board’s competence as a roads authority.