Supporting Documents:
 
THE SUPREME COURT
DETERMINATION MAYO COUNTY COUNCIL PLAINTIFF / RESPONDENT DEFENDANT / APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
1. This Determination relates to an application for leave to appeal to the Supreme Court from a decision of the Court of Appeal dated the 29th July, 2015.
Jurisdiction
2. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.
3. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1. This states:
4. Article 34.4.3 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal.
5. Article 34.5.4 concerns that, if a third litigant seeks to come directly from the High Court to the Supreme Court.
6. The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.4.3, which states:
7. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.
8. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied, either that the relevant decision of the Court of Appeal “involves a matter of general public importance”, or, alternatively, that it is “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that, “in the interests of justice, it is necessary that there be an appeal” to this Court.
9. The statutory framework for the exercise of the right to appeal to this Court for such leave is to be found in the Court of Appeal Act, 2014, and, in particular, the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961.
10. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
11. The Constitution has retained the entitlement of one appeal as a right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the Determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there be a further appeal to this Court.
Background Facts
12. It must be emphasised, at the outset, that this is an appeal against the granting of interlocutory orders. This Court will necessarily subject appeals in this order to especially careful scrutiny, as what is in question is not a final order. What is set out here, therefore, is not to be treated as findings of fact made by a court.
13. The background material was set out in the two judgments of the Court of Appeal (Ryan P. and Hogan J. (concurring), Finlay Georghegan J. concurred in both judgments, dated the 29th July, 2015). The defendant/appellant, Peter McNicholas, appealed against interlocutory orders made by the High Court (Gilligan J.) restraining him from (a) using an exit that he had created onto the N5 Charlestown By-Pass; (b) interfering with bollards in-situ, preventing use of the exits; and (c) any further interference with the public road adjacent to his premises at Cuilmore, Swinford, Co. Mayo, pending the plenary trial of the action. The question that arises on the appeal is whether Mayo County Council has made out a sufficient case to entitle it to an injunction.
14. The case is that Mayo County Council carried out road improvement and construction works for the by-pass between 2005 and 2007. Some of Mr. McNicholas’s land was the subject of a Compulsory Purchase Order, about which there was an area of dispute. The central issue in the matter before the Court of Appeal, however, arose from the fact that the plaintiff’s home is located on a local road, NM734, which gave direct access to the N5 until the new road replaced it. The new by-pass transected that road and blocked it off completely with a wall approximately 2 metres in height.
15. Mr. McNicholas, and the Council, have been in dispute regarding alternative access to his premises. There were separate High Court proceedings. In its judgment of the 31st July, 2009, that court refused declarations sought by Mr. McNicholas, and his wife, condemning the access that was provided for them in lieu of the local road. That decision is, apparently, still under appeal to this Court.
16. The Court of Appeal noted that in, or around, the year 2010, Mr. McNicholas received information, leading him to make enquiries about the status of the old road on which his dwelling was located, namely, the NM734. He discovered that it had been designated as a public road by Resolution of the County Council on the 19th September, 1977. The County Council in its CPO documentation in 2004 had treated this as being a private right of way and not a public right of way. It did not invoke, or operate, the statutory machinery that was required to distinguish a public road, but instead used a procedure appropriate to a private right of way.
17. The Court of Appeal observed that the defendant/appellant’s concern is in relation to the status of the access road that the Council put in place, notwithstanding his objection. Mr. McNicholas was informed that it was a public road, which had not yet been taken in charge. Mr. McNicholas was not satisfied. He maintained the High Court had reached its decision on his case about the adequacy of the access on the basis of contradictory evidence given by the Council.
18. In 2013, he engaged in correspondence with the Council about this matter, asserting that the original local road continued to exist in law as a public right of way, notwithstanding the construction of the Charlestown By-Pass. He claimed to be entitled to open a gap in the blockwall that stopped up the old road.
19. The Court of Appeal pointed out that the Council, for its part, responded through its solicitors, threatening legal action, including application for injunctive relief, if he went through with his intention as declared.
20. On the 19th December, 2013, Mr. McNicholas knocked down and removed part of the wall to gain access along the old road, and out onto the N5. He wrote to the Council’s solicitors in January, 2014 informing them of what he had done. They responded, threatening proceedings, unless he gave undertakings. The Council duly brought proceedings and applied to the High Court for relief against Mr. McNicholas. The High Court granted injunctions. Mr. McNicholas appealed to the Court of Appeal on the issue of whether the High Court had been correct in granting an injunction restraining him from interfering with the public road onto his premises.
21. In order to succeed in an application for an interlocutory injunction, a plaintiff must establish there is a fair case to be tried, that the balance of convenience is in favour of an injunction, and that damages would not be an adequate remedy (Campus Oil Limited v. Minister for Industry & Commerce (No. 2) [1983] I.R. 82).
22. The Court of Appeal held that the balance of convenience was in favour of the injunction. It held that damages would not be an adequate remedy. Ryan P. pointed to the consequences, including danger, represented by an unauthorised opening onto a busy national primary route carried out by a private individual. The only outstanding issue, therefore, is whether, on the facts and law, there was a fair issue to be tried. The question for this Court is, whether that issue, on the individual facts of this appeal, be characterised as a matter of general public importance, or is such that it is in the interests of justice that there be a further appeal to this Court.
23. At the appeal, Mr. McNicholas argued that since no application to extinguish or abandon the public right of way over the local road had been made, the Council had a duty, under s.74 of the Roads Act, 1993, to protect public rights of way, and to remove the obstruction. He sought to establish what was termed a “linkage” between the blocking off of the local road, and an allegation that the Council had given evidence in the High Court, in the declaratory proceedings, that the access road was not a public road. Ryan P. pointed out that this contention, if correct, would mean that Mr. McNicholas did not have available to him the use of any public road.
24. The Court of Appeal noted that Mr. McNicholas accepted that the Compulsory Purchase Order was confirmed on the 10th November, 2004, and that a notice to treat was served on the 31st January, 2005, but contended that no notice of entry, in accordance with s.80 of the Housing Act, 1966, had been served on his family.
25. A grounding affidavit for the County Council exhibited a letter to contrary effect. This letter, written by Mr. McNicholas’s then solicitors, was dealt with by Mr. McNicholas by contending that the firm had no authority to write on his behalf in the matter.
26. Ryan P., in his judgment, commented that, whatever might be the position at plenary hearing, the duty of the court, at this stage, was to accept the letter at face value.
27. Mr. McNicholas’s position was that the Council had been wrong in treating the road, NM734, as being a private right of way, and purporting to extinguish it on that basis. It was contended on his behalf, that the Council should have proceeded in accordance with the statutory method for extinguishing a public right of way under s.83(1) of the Housing Act, 1966. Since it did not do so, Mr. McNicholas was, he contended, entitled to take action to assert his right of way. He contended, there could not be an injunction, because this would fail to recognise the continued existence of a public right of way.
28. The Council, on the other hand, submitted the Road Development to An Bord Pleanala on 19th March, 2004, pursuant to s.51 of the Roads Act, 1993. It applied for confirmation of the Compulsory Purchase Order, under the Third Schedule of the Housing Act, 1966. These were authorised in the CPO and entitled the County Council to extinguish the public rights of way therein listed, but that did not include local road NM734.
29. While the Council did not proffer a specific legal mechanism, whereby the public right of way and the local road came to be extinguished, counsel for the County Council argued that, by adopting the statutory procedure for approval of the road improvement project, and obtaining confirmation, therefore, and of the CPO, the result was to authorise the steps that the Council had subsequently taken.
30. As was pointed out by Ryan P., and by Hogan J., in his concurring judgment, the onus was on the County Council merely to demonstrate a fair question. The balance of convenience lay in favour of granting an injunction. Damages were not an adequate remedy. The fact that there was urgency, did not, in itself, give rise to a fair issue to be tried. Critical to both judgments was the finding that Mr. McNicholas had engaged in destruction of public property, and created what must be considered a potentially serious hazard to motorists.
31. The court considered that the N5 is a busy national highway. It is an offence to interfere with a road, or any fence or wall forming part thereof, under the Roads Act, 1993 (see, in particular, s.2 and s.73(10)). The Council also relied on s.51 of the Planning & Development Act, 2000, providing that a person who carries out (piece missing from end of side 1).
32. The Court of Appeal commented that the Council may, at a plenary hearing, have difficulties in proving extinguishing of the right of way by statutory means. However, if the road architecture were to remain as it is, that any public right of way would cease to exist at some point in time, if this had not already occurred. It was pointed out that there had been interference with the wall, which is the property of the County Council.
33. In his concurring judgment, Hogan J. held that the Council, in addressing the question of fair issue, could point to the existence of an arguable case, to the effect that the demolition by the defendant of the wall (which is the property of the Council), built to, and forming part of a new public road, was, in itself, unlawful. Hogan J. also held that the balance of convenience favoured the Council, and that damages would prove an inadequate remedy. He, too, was disposed to continue the interlocutory injunction granted in the High Court by Gilligan J.
Decision
34. The Court has carefully considered the judgment of the Court of Appeal in this matter, and the application brought by Mr. McNicholas. This is not a Court of Error. The Court of Appeal concluded that there was a fair question to be tried. What is contained here are not findings of fact by a court having conducted a full plenary hearing.
35. The Court is not satisfied that the appellant has raised a matter of general public importance, or a matter which in the interests of justice it is necessary that there be an appeal to the Supreme Court, in all the circumstances described in the documents.
36. Neither the factual issues, determined in the Court of Appeal, nor the legal issues addressed by the Court of Appeal, raise issues which satisfy this Court that the application has met, or satisfied, the threshold of the constitutional test.
37. In particular, the Court would reiterate that this is an appeal against an interlocutory order of the High Court, and the Court of Appeal. This Court will exercise the jurisdiction to interfere with orders of that nature only very sparingly. Moreover, a consideration of the application, as a whole, demonstrates that this is a matter which stands on its own facts, and the law applicable to those facts. The appeal does not meet the threshold.
38. Consequently, as neither of the grounds set out in Article 34.5.3 are met, this Court does not have jurisdiction under the Constitution to grant leave to appeal from the Court of Appeal. It follows, that the applicant is not entitled to further appeal.
39. As this Court has no jurisdiction to grant the application for leave to appeal, the Court has no jurisdiction to address any other issue.
40. The Court does not grant leave to appeal to this Court from the Court of Appeal.
And It is hereby so ordered accordingly.
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