M28 - Cork to Ringaskiddy [advance works pending; 2024 start]

mydiscworld

Appeal deadline is tomorrow. How can we check if one was lodged?

Hibernicis

mydiscworld wrote: »

Appeal deadline is tomorrow. How can we check if one was lodged?

Unfortunately there is no easy way to do this, unless you have access to the appellant (M28 shower) or one of the parties directly affected by the application (e.g. TII, An Bord Pleanala in this case) and can ask them directly. Also, bear the following in mind:

The applicant has 21 days from the date the order was perfected to lodge the appeal. However the appeal may be lodged after this deadline together with an application for an extension setting out the grounds upon which it is contended time should be extended. The Supreme Court has the right to to grant such an extension. The 21 day period could therefore be considered a soft rather than a hard deadline, especially in the current circumstances.

The applicant is also obliged to notify the parties directly affected by the application on the same day the application is lodged with the Supreme Court. And they have 21 days in which to respond.

None of the above is made available online on a routine basis. In reality, word of the appeal usually becomes public when one of the parties involved speaks to the press or otherwise makes it public.

neddynasty

On the "M28 Steering Group" Facebook page, on 17th June 2020 there is a post with an update on the appeal process. There is a reply, from the Steering Group (Ger) to one of the comments on the post. It states "I can confirm that instructions have been issued to take our case to the Supreme court if necessary."

I think this might rumble on. It'll be unfortunate if the appeal is taken further but the current process is what we have and the only process that can be followed.

annfield1978

Any formal word on whether it was appealed or not?

Cork Trucker

Nothing recent on their FB page. The comment from several months back about having instructed their legal team to go to the Supreme Court is there as mentioned above

annfield1978

Seems an appeal to the Supreme Court has been issued

Any idea how long this would take?

Has it happened before on a road/ infrastructure scheme?

Cork Trucker

They can only petition the Supreme Court at this point. Where did you see that they have? Nothing new on Facebook

Hibernicis

annfield1978 wrote: »

Seems an appeal to the Supreme Court has been issued

Source ?

highwaymaniac

annfield1978 wrote: »

Seems an appeal to the Supreme Court has been issued

Any idea how long this would take?

Has it happened before on a road/ infrastructure scheme?

A good few times, N22 Macroom bypass to name one.

annfield1978

Hibernicis wrote: »

Source ?

When you know, you know

danny004

Seems an appeal to the Supreme Court has been issued

Any idea how long this would take?

Has it happened before on a road/ infrastructure scheme?

If Im reading the supreme courts summary for 2019 correctly ,leave to appeal is normally decided within 10 weeks . If leave is granted then a hearing should happen within a further 12 weeks with a judgement 2 months after.

A good few times, N22 Macroom bypass to name one.

Dont think this ever went to the supreme court or at least there doesn't seem to be a record of it.

AugustusMinimus

On what grounds can they appeal. Do they have further remit to take this to Europe?

One wonders where all the cash for legal fees is coming from.

Cork Trucker

AugustusMinimus wrote: »

On what grounds can they appeal. Do they have further remit to take this to Europe?

One wonders where all the cash for legal fees is coming from.

Europe are the ones dictating a motorway is needed to the port, I really can’t see how, in all unlikelihood if it did end up there they’d side with these, erm, people

markodaly

Once the legal challenges fail and they run out of road, what is the next step in the process?

Is it tendering?
In all likelihood, when could one expect construction to start?

marno21

markodaly wrote: »

Once the legal challenges fail and they run out of road, what is the next step in the process?

Is it tendering?
In all likelihood, when could one expect construction to start?

Advance works is next. TII have stated that will take approximately three years due to a number of constraints along the route including difficult works around the Rochestown Road and complex water mains diversions.

Based on that, if we get the legal hurdles cleared by the middle of this year, you'd see it start in mid 2024 and open in 2027.

markodaly

3 years of advanced work? Wow, that is a lot, given it will take another 3 years to actually build the road.

marno21

markodaly wrote: »

3 years of advanced work? Wow, that is a lot, given it will take another 3 years to actually build the road.

Yep, it's a difficult scheme especially north of Carrs Hill.

2 years minimum for advance works assuming it hits every green light funding wise is the precedent for schemes at the minute (based on the N5), this is a bit more complex hence the longer advance works window.

Hibernicis

markodaly wrote: »

3 years of advanced work? Wow, that is a lot, given it will take another 3 years to actually build the road.

It sounds like a lot but there is detailed design work, tendering and contractor selection not to mention land acquisition (Compulsory Purchase Orders) etc. all of which carry their own delay risks. 2027 has been mentioned a few times and appears to be the consensus assuming there are no further hitches (and leave to appeal to the Supreme Court is refused)

snotboogie

So has the appeal to the Supreme Court been confirmed?

Cork Trucker

snotboogie wrote: »

So has the appeal to the Supreme Court been confirmed?

If it has the silence is deafening, I can’t find anything on it. Ever their Facebook page has nothing recent on this bar a several months old comment saying instructions to go to the Supreme Court were issued. This was before the most recent judgement.

Hibernicis

AugustusMinimus wrote: »

On what grounds can they appeal. Do they have further remit to take this to Europe?

One wonders where all the cash for legal fees is coming from.

Three very good questions.

On what grounds can they appeal.

To take a stab at answering this you need to understand how appeals move through the courts. Up to 2014 Ireland had four courts (excluding criminal and military courts). In reverse order of importance: District, Circuit, High and Supreme. Cases decided by the High Court could be appealed to the Supreme Court, and these formed most of the business before the Supreme Court. The Court of Appeal was introduced in 2014 and sits between the High Court and the Supreme Court and it was given responsibly for the majority of appeals to High Court decisions. (It also took over the role of the Court of Criminal Appeal and the Courts-Martial Appeal Court and it has some other limited responsibilities). The intention was to greatly reduce the volume of business going to the Supreme Court.

Now the only appeals that go to the Supreme Court are those which raise issues of major public importance or where the interests of justice require such an appeal. These are provided for under Article 34.5.3 and Article 34.5.4 of the Constitution. The relevant article in this case is 34.5.4 which reads

4° Notwithstanding section 4.1° hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:

(i) the decision involves a matter of general public importance;

(ii) the interests of justice.

In other words you can't just turn up the the Supreme Court and say that you want to appeal because you aren't happy with the decision of the High Court (or the Court of Appeal) you have to petition the Supreme Court setting out how the case meets the above criteria, and the Supreme has to accept the Appeal.

The best example I can come up with is the Apple Data Centre appeal. There was an overall masterplan for the site which ultimately envisaged eight data centres (data halls). The planning application and EIA/EIS was for one data hall and an electrical distribution station. (Subsequent data halls would require separate planning applications and EIA/EISs). An Bord Pleanala gave approval for this and on appeal to the High Court the decision was upheld. The plaintiffs decided not to go to the Court of Appeal, instead they went directly to the Supreme Court and petitioned it on very specific grounds and the Supreme Court agreed to hear the appeal. The primary ground (there were a few others) in the appeal was that the EIA/EIS should have taken account of the eight data halls. The Supreme Court accepted the appeal because it had implications for any other case in the future where there was an application for one part of a masterplan and whether or not the initial EIA and EIS should encompass the entire masterplan (i.e. the decision involves a matter of general public importance). The Supreme Court heard the Appeal and dismissed it. Judgment is here if you wish to read it.

In the case of the M28 the appeal route is as follows:

• An Bord Pleanala approved the plan to build the road
• The M28 steering group obtained a judicial review in the High Court. The High Court refused the reliefs sought and upheld An Bord Pleanala's decision
• The M28 steering group sought leave to appeal to the Court of Appeal and this was refused
• The last remaining option open to the M28 steering group is to petition the Supreme Court under Article 34.5.4

So having detailed all that, lets return to your first question "On what grounds can they appeal." The only document we have that gives an indication of where this could be going is the High Court Judgment from the Judicial Review (The judgment from the application to appeal to the Court of Appeal has yet to be uploaded). Paragraphs 14 & 15 of the judgment set out the issues. In summary, there are two broad issues:
(1) Should the EIA/EIS have been conducted anther the 2011 EU Directive or the 2014 EU Directive. This is teased out at length in the Judgment. The plaintiffs were pissed off that the application was submitted to ABP on the eve of the coming into force of the 2014 (so it was in fact compiled and submitted in accordance with the 2011 directive). They contend that it should have been compiled and submitted in accordance with the 2014 directive. The High Court disagreed.
(2) Rafeen Quarry. There are a number of issues here, all detailed in the judgment. Briefly the plaintiffs contend that the quarry should have been fully included in the EIA/EIS, whereas the responding parties argue that the quarry is a standalone issue and has its own permission etc. Again the High Court dismissed the arguments made by the M28 Steering Group.

It is impossible to know whether or not other issues were introduced in the subsequent application for leave to appeal to the Court of Appeal.

So at present, based on the above, it would appear to me that the most likely grounds for going to the Supreme Court are either or both of the above points. Of course other concerns could also be introduced.

You will note that nowhere is there any mention of exploding trucks, the devastation of live as we know it in Rochestown, the sundering of communities, the civil rights of the "10,000" or any of the other emotional crap that formed part of the great campaign of resistance.

In summary, this isn't about "we don't like your road and we want a fourth shot at getting it far away from our back yards"; to get into the Supreme Court they need to show that there is an issue of exceptional importance.

I hope that gives a sense of where it may be going.

Do they have further remit to take this to Europe

Yes and No.

As I said above "The judgment from the application to appeal to the Court of Appeal has yet to be uploaded". However, in this report on that case, the following appears ("He" refers to the Judge):

He was also not satisfied the court ought to refer suggested questions to Court of Justice of the EU (CJEU) for determination

We can assume from this that the M28 Steering Group in their application asked the court to refer the case to the CJEU and the Court refused to do so.

Should the appeal to Supreme Court be allowed, a request to allow an issue to be referred to the CJEU could be included. It would most likely relate to the EIA/EIS issue.

Finally, there is a theoretically possible indirect route to the CJEU, but it is discouraged and the CJEU always prefers people to access it via national bodies. This would involve going to the European Commission and asserting that the authorities in Ireland have infringed EU law.

In reality, unless the Supreme Court decides that some point merits reference to Europe, it is very unlikely that there is a Europe level route open.

One wonders where all the cash for legal fees is coming from.

Sixty four thousand dollar question. I was eaten up and spat out previously for raising this. It seems to me that a group who choose to obstruct progress and impact a large number of people in the way that this group have done should be obliged to be transparent in regard to backers and funding. The M28 Steering Group have never set out who their backers are and have never published any accounts and in fact have refused to do so. We have no knowledge of who is funding this campaign and I believe that that is an issue of serious public concern as it allows third parties to further their interests through a front. I very much doubt that the M28 Steering Group are funding this from their own resources, their fundraising to date has certainly not raised the money necessary for this and even if the solicitors and barristers are working pro bono or on an "no foal no fee" basis there must be money coming from somewhere. This may not be illegal or wrong, but the public should have a right to know who is bankrolling it and why they are doing so. It is a defect in the law/planning law that the public interest can be challenged in this way without the parties and their interests having to be declared publicly.

SeanW

I don't agree that forcing 'transparency' is the right way to go with this. Silent participation is a good thing to have in a free society, to protect people with unpopular views. Like if you live in the swamps of Alabama, you might not want people to know about your contributions to an LGBT group. Or if you lived in San Francisco, you might not want it known your membership of / contributions to, conservative causes or organisations. I have no issue with "dark money" in that regards as a general rule.

IMHO the best way to tackle nuisance litigation of the likes of what the M28 steering group are doing, is for costs to be awarded against such litigators as a general rule. And only allow appeals one the State has been paid its costs for the decision being appealed. I suspect that this would "soften the cough" of NIMBYs in short order.

blindsider

@Hibernicis - thank you for sharing your (obviously) specialist knowledge here. I am sure you would ordinarily charge a few guineas for this, and your willingness to share and educate is commendable.

It gives us some hope that the M28 might progress for the greater good.

I agree with your assertion that such groups (M28) should be transparent re funding - many others, politicians included, are theoretically transparent and it would be informative in this instance too.

danny004

who cares how its funded ,what difference does it make ,so what if its a lobbyist or some grand Dr Evil with world domination in mind by stopping a road ,the law is the law and will stand up to scrutiny or not regardless who is funding. And lets be honest the probability is its funded by some wealthy locals who dont want a road near their home.

Aontachtoir

danny004 wrote: »

who cares how its funded ,what difference does it make ,so what if its a lobbyist or some grand Dr Evil with world domination in mind by stopping a road ,the law is the law and will stand up to scrutiny or not regardless who is funding. And lets be honest the probability is its funded by some wealthy locals who dont want a road near their home.

I care how it's funded. I live next door to the road and I have been denied the possibility of a safe, quick, more environmentally friendly way of getting back and forth between my home and Ringaskiddy (as have thousands of commuters). If a business is funding these vexatious objections, I want to be able to draw attention to them or organise a boycott.

As a general point, dark money in politics (and everything is ultimately politics, including deciding whether to build this road) corrodes democratic societies. It has completely destroyed the US, for example.

danny004

Aontachtoir wrote: »

I care how it's funded. I live next door to the road and I have been denied the possibility of a safe, quick, more environmentally friendly way of getting back and forth between my home and Ringaskiddy (as have thousands of commuters). If a business is funding these vexatious objections, I want to be able to draw attention to them or organise a boycott.

As a general point, dark money in politics (and everything is ultimately politics, including deciding whether to build this road) corrodes democratic societies. It has completely destroyed the US, for example.

Get real and grow up. and its not a political matter its a judicial one

AugustusMinimus

danny004 wrote: »

Get real and grow up. and its not a political matter its a judicial one

Very much a political matter given the input of various politicians, especially Jerry Buttimer given his support for the group.

danny004

Political opinion yes political decision absolutely not .One matters and one is opinion that anyone including politicians are entitled to

markodaly

Aontachtoir wrote: »

I care how it's funded. I live next door to the road and I have been denied the possibility of a safe, quick, more environmentally friendly way of getting back and forth between my home and Ringaskiddy (as have thousands of commuters). If a business is funding these vexatious objections, I want to be able to draw attention to them or organise a boycott.

As a general point, dark money in politics (and everything is ultimately politics, including deciding whether to build this road) corrodes democratic societies. It has completely destroyed the US, for example.

I would agree with this. We already have laws in this state about funding from foreign organisations impacting on referendum results.
All one would be asking for here is more transparency on how and who is funding various steering groups or residents associations when it comes to bringing court cases against projects.

danny004

markodaly wrote: »

I would agree with this. We already have laws in this state about funding from foreign organisations impacting on referendum results.
All one would be asking for here is more transparency on how and who is funding various steering groups or residents associations when it comes to bringing court cases against projects.

For what as a means of stopping procedure or adding another layer of scrutiny that will go nowhere or hoping embarrassment will stop funding or satisfying curiosity.
If i said the man who owns the maxol garage on carrs hill is funding them because he doesn't want traffic diverted away from his garage (for clarity I dont know him and assume hes not) so what why should that interfere with a judicial procedure ,its his money he can do what he likes with it .
There are private benefactors and patrons who remain anonymous all through the country in every walk of life who fund all sorts of stuff ,are we saying the private donor should not be allowed.
No the truth of it is there are people on this thread who complain about every angle of this legal challenge straw clutching instead of recognising what it is which is a legal challenge the like of which have been happening since Jesus was a baby and the argument really should be directed at the pace of the Judaical system where this should be over with at least 12 months ago and everyone here can carry on with their normal lives one way or the other and not worry a wit about funding mechanisms for legal challenges of national infrastructure projects