A message from our chairperson, Kevin Baker, about today's Strand Road judgement
To our volunteers, members and supporters,
This morning, I was bitterly disappointed to hear the High Court ruled against the Strand Road cycleway trial. It will prevent the cycleway from being built for now. The cycleway would have provided a safe and comfortable cycle route somewhere that is currently very hostile to cycle.
This afternoon, I reviewed the judge’s full judgement (attached below). Let me outline the details about the decision and what it means for other cycling projects in Dublin.
It’s important to remember that judicial review isn’t about determining if the Strand Road cycleway is a good idea. It is about examining whether the process described in law was followed.
The judge dismissed a number of arguments that objectors levelled against the project, including that there wasn’t enough public consultation or that Dublin City Council wasn’t allowed to make this decision under EU law.
Unfortunately, the judge upheld one of the objectors’ arguments. Here are the details.
The Judge’s Determination
The legal process that the council used for the Strand Road cycleway is called Section 38 of the Road Traffic Act 1994. It allows for temporary or permanent changes to existing roads to provide cycle lanes and other traffic calming changes. It can be used on projects that fall below certain thresholds set out in environmental law.
To determine if a project falls below these thresholds an independent environmental expert produces a screening report. For Strand Road, the screening report said the environmental impacts were minor and temporary and thus Section 38 could be used.
Unfortunately, the judge didn’t agree. The case hinges on how ‘temporary’ the Strand Road trial cycleway actually is. The screening reports were prepared on the assumption this was a temporary six month trial. As a result, all potential environmental impacts were considered minor and temporary.
The judge ruled that the proposed cycleway trial wasn’t a temporary measure. Here are the two important paragraphs of the judge’s decision:
The aforesaid, to my mind, casts considerable doubt as to whether the cycleway trial is temporary. What is stated is that five months into the trial, i.e.: one month before the end date, there will be a review by way of public consultation which will give a recommendation as to whether or not to continue with the cycleway trial. Thus, on the last day of the six months the cycleway may or may not be removed. Clearly, if it is not removed it is not temporary. Mr. O’Brien further stated in his affidavit (para. 29): “… If the Trial is not a success it will be removed. …” It must follow from this that if the trial is a success it will not be removed.
Therefore, it cannot be said that the cycleway will only be there for six months. The most that can be said is that the cycleway trial is reviewable. A reviewable cycleway is not a temporary cycleway. From this I conclude, contrary to what was submitted on behalf of the City Council, that the cycleway trial is not “temporary”._
The judge is arguing that the council didn’t explicitly say they would remove the project at the end of six months, even if it was a success. During the High Court Case, the Irish Times reported on 25th June, that the council said they would repeat any screening reports at the end of the six months, if the council deemed the project a success and it wanted to keep the cycleway permanently. The Irish Times also reported:
Asked by Mr Justice Charles Meenan if that could be avoided by simply rolling over six month trials, counsel [for the council] said that is not the intention and would be completely illegal.
I disagree with the judge’s assertion. I think based on what was submitted to the court that it was clear that the council’s intention is a temporary project.
However, since the judge ruled the project wasn’t temporary, then the screening reports may have inadequately examined potential environmental impacts because it assumed the project was temporary. As a result, it wasn’t clear the project was below the environmental thresholds that allowed the use of Section 38. This is why the High Court has blocked the project, for now.
Can this issue be resolved?
In my opinion, this is a minor legal process issue. An issue that can be rectified either by providing more clarity on what happens at the end of the six month trial or by repeating the screening reports without assuming the project is temporary.
Since the Strand Road cycleway involves minor alterations to an existing road the potential for significant environmental impacts, even for a permanent project, are likely to be below the thresholds that require a full planning application.
I don’t think this judgement sets a negative precedent for other cycling projects across the city as the legal issues here are reasonably specific to this project. Other proposed trial projects in Dublin can learn lessons from this ruling.
This isn’t the end for Strand Road
I’m absolutely gutted by this decision. On days like today, campaigning for a better city can feel exhausting. It’s easy to ask why we even bother. However, we are making a difference.
This isn’t an insurmountable hurdle. It is just a delay to a much needed project. We will continue the good fight to deliver the Strand Road cycleway. So watch this space.
If anything this ruling has made many of our volunteers more determined than ever to advocate for climate action and active travel infrastructure.
To all of our volunteers, members and supporters: Thank-you. With your support we’ll continue campaigning for a more liveable Dublin where people of all ages and abilities can enjoy cycling. If you want to support Dublin Cycling Campaign consider becoming a paid member or volunteering. If you’re already a member please convince your friends and family to do the same.
– Yours in cycling, Kevin Baker Chairperson Dublin Cycling Campaign
Help us do more for cycling in Dublin by becoming a member!