Lissan Coal Company [Ireland] Limited and Anor v An Bord Pleanála and Ors

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 DEVELOPMENT ACT 2000, AS AMENDED BETWEEN: LISSAN COAL COMPANY (IRELAND) LIMITED and LCC PROPERTIES AND INVESTMENTS (IRELAND) LIMITED Applicants and AN BORD PLEANÁLA, THE NATIONAL TRANSPORT AUTHORITY, IRELAND & THE ATTORNEY GENERAL Respondents JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 30 APRIL 2026 CONTENTS JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 30 April 2026.............................................................1 RELIEFS SOUGHT ...................................................................................................................................................4 INTRODUCTION, FACTS & LISSAN’S RISK DECISION .............................................................................................5 Pre-CPO/Scheme – from November 2017........................................................................................................7 Figure 1 – “Map 28 Emerging Preferred Route” - November 2018 - Extract ...............................................9 Lissan’s Risk Decision ................................................................................................................................. 11 NTA e-mail of 8 March 2019 and thereafter ............................................................................................. 14 Development Potential if not a Filling Station .......................................................................................... 18 S.51 Approval Application June 2022, Scheme Description & EIAR .............................................................. 18 Figure 2 – Scheme Map 29 - Extract .......................................................................................................... 19 EIAR on Impact on Filling Station .............................................................................................................. 20 CPO & Lists of Public Rights of Way to be Extinguished, Restricted or Interfered with ............................... 21 S.51 Process - Lissan Submission August 2022, NTA Reply January 2023 & Lissan Reply July 2023 ............. 23 INSPECTOR’S REPORTS & IMPUGNED DECISIONS ............................................................................................. 25 Inspector on Lissan Objection & Observation Thereon ................................................................................ 28 Impugned Decisions ...................................................................................................................................... 30 OVERVIEW OF LISSAN’S COMPLAINT ................................................................................................................ 30 LIVE CORE GROUNDS......................................................................................................................................... 32 CG3 – CPO Does Not Authorize Interference with Public Right Of Way on Old Cabra Road ........................ 32 CG4 - CPO Confirmation in Breach of Fair Procedures .................................................................................. 33 CG5 – CPO an Unconstitutional Unjust Attack on Property Rights ............................................................... 33 1 Lissan Coal v ABP & NTA [2026] IEHC 255 CG6 - S.51 Approval – Material Error: Filling Station Could Continue in Business ........................................ 33 CG7 – No Oral Hearing................................................................................................................................... 34 CG8 – Legislation Unconstitutional ............................................................................................................... 34 PRELIMINARY ISSUES ......................................................................................................................................... 34 NTA’s Position - Standing & Evidential Matters ............................................................................................ 34 Commission’s Position - Evidential Matters .................................................................................................. 35 Lissan’s position - Standing & Evidential Matters ......................................................................................... 35 Preliminary Issues - Decision ......................................................................................................................... 36 LEGISLATIVE CONTEXT & COMMENTARY THEREON ......................................................................................... 37 National Transport Authority & Public Transport Infrastructure .................................................................. 37 Road Traffic Legislation ................................................................................................................................. 38 Proposed Road Development – Approval & EIA - Roads Act 1993 ............................................................... 38 Terminology - “Proposed Road Development”/“Scheme” ....................................................................... 38 S.51 Approval & EIA ................................................................................................................................... 39 CPOs – Making, Form, Confirmation, Oral Hearings & Effects ...................................................................... 40 Public Rights of Way – Extinguishment, Restriction & Interference ......................................................... 41 Form & Content of CPOs – Restrictions of & Interferences with Public Rights of Way ............................ 42 S.213(2)(a) PDA 2000 – Does it Encompass Restriction of or Interference with a Public Right of Way such that a CPO must List it? ............................................................................................................................. 45 Conclusion – S.213(2)(a) PDA 2000 Does Not Require that a CPO List Restrictions to & Interferences with Public Rights of Way - No Lands are to be Acquired From Lissan – Ground 3 .............................................. 49 No Disadvantage to Lissan......................................................................................................................... 49 CPOs – Compensation, Injurious Affection, S.68 of the 1845 Act, & McCarthy/Wildtree Principles ........... 50 McCarthy/Wildtree Principles ................................................................................................................... 53 Moto Hospitality ........................................................................................................................................ 57 Timing of s.68 Compensation Claim .......................................................................................................... 58 Assumption of no Statutory Compensation, Failure to List in CPO & Whether to Decide Constitutional Issues ............................................................................................................................................................. 58 Alleged Inability to Claim Compensation by Reason of Failure to List in CPO or Serve Notice To Treat – Decision ......................................................................................................................................................... 60 GROUND 5 – UNJUST ATTACK ON CONSTITUTIONAL & ECHR PROPERTY RIGHTS ........................................... 62 Ground 5 & Lissan’s Position ......................................................................................................................... 62 G5 – Opposing Positions ................................................................................................................................ 63 G5 - Introduction & Overall Significance Of Constitutional Issues ................................................................ 65 G5 - Frontager’s Private Right Of Access To Highway & Public Right Of Passage On Highway ..................... 65 Interferences with Frontager’s Rights Without Compensation ................................................................ 67 G5 - Public Nuisance ...................................................................................................................................... 70 General ...................................................................................................................................................... 70 Public & Private Nuisance.......................................................................................................................... 70 Particular Damage in Public Nuisance on the Highway - Loss of Custom/Passing Trade – Moto, Wilkes, Gravesham, Colour Quest & Vasiliou ........................................................................................................ 72 Will Lissan suffer Special Damage sounding in Public Nuisance? ............................................................. 76 A Philosophical Difference – Whether Costs should be Internalised? ...................................................... 76 2 Lissan Coal v ABP & NTA [2026] IEHC 255 Do Bus Gates Obstruct the Highway within the Meaning of Public Nuisance? ........................................ 76 Statutory Authority – Introduction............................................................................................................ 77 Nature of Statutory Authority of Public Nuisance – Smyth v RPA ............................................................ 79 G5 - Constitutional & ECHR Property Rights ................................................................................................. 83 Bunreacht na hÉireann, Articles 40.3.1 & 43 ............................................................................................ 83 Earlier Cases, ESB v Good (2025) & Jones (2024) ...................................................................................... 84 Application of Law to Lissan’s Case ........................................................................................................... 98 ECHR ........................................................................................................................................................ 101 Interferences with Frontager’s Rights Without Compensation .............................................................. 103 G5 - Livelihood ............................................................................................................................................. 103 G5 - Unjust Attack on Constitutional Rights - Conclusion ........................................................................... 105 GROUNDS 5 & 8 - CONCLUSION ...................................................................................................................... 105 GROUND 7 – FAILURE TO HOLD ORAL HEARING............................................................................................. 106 G7 - Legislation ............................................................................................................................................ 107 G7 - Facts ..................................................................................................................................................... 107 G7 – Lissan’s Position .................................................................................................................................. 108 G7 - Opposition............................................................................................................................................ 109 G7 - Discussion & Decision .......................................................................................................................... 110 GROUND 3 – CPO FAILS TO LIST BUS GATES’ INTERFERENCE WITH PUBLIC RIGHT OF WAY .......................... 115 G3 - Lissan’s Position ................................................................................................................................... 116 G3 - Opposition............................................................................................................................................ 117 G3 - Discussion/Decision ............................................................................................................................. 117 GROUND 4 – CPO FAILS TO PROVIDE FOR INTERFERENCE WITH OR RESTRICTION OF PUBLIC RIGHT OF WAY ......................................................................................................................................................................... 119 G4 - Lissan’s Position ................................................................................................................................... 119 G4 – Decision ............................................................................................................................................... 119 GROUND 6 – S.51 APPROVAL – BUSINESS VIABILITY IMPACTS ....................................................................... 120 Particulars ................................................................................................................................................ 121 G6 – Lissan’s Position .................................................................................................................................. 121 G6 – Commission’s Position ........................................................................................................................ 122 G6 – NTA’s position ..................................................................................................................................... 123 G6 – Discussion & Decision ......................................................................................................................... 124 Objectivity & Function of EIA .................................................................................................................. 124 Sensitive Receptors ................................................................................................................................. 125 Facts & Commentary Thereon................................................................................................................. 127 Analysis .................................................................................................................................................... 131 Environmental Effect? – Leth - & Significance of Effect .......................................................................... 135 Planning Consideration? .......................................................................................................................... 139 OVERALL CONCLUSION & OBSERVATIONS ON REMEDY ................................................................................. 140 3 Lissan Coal v ABP & NTA [2026] IEHC 255 RELIEFS SOUGHT1 1. The Applicants (“Lissan” and “LCC” - I will, in what follows, generally refer to “Lissan” or “the Applicants” as encompassing both Lissan and LCC save where the context suggests otherwise) in judicial review seek to quash, in whole or in part, the “Impugned Decisions” of the First Respondent (“the Commission”2) made on 21 June 2024 to, • Approve, pursuant to s.51 of the Roads Act 1993,3 and ss.215 and 217C(2) PDA 2000,4 the Blanchardstown to City Centre Core Bus Corridor Scheme (“the s.51 Approval”5 and “the Scheme”). • Confirm, pursuant to s.76 of the Housing Act 1966,6 and s.2147 and 217C(1) PDA 2000, the Bus Connects Blanchardstown to City Centre Core Bus Corridor Scheme Compulsory Purchase Order 2022 (“the CPO Confirmation”8 and “the CPO”). Both the Scheme and CPO had been submitted to the Commission, for approval and confirmation respectively, by the Second Respondent (“the NTA”). 2. In addition or alternatively, Lissan seeks the following reliefs: • A Declaration that the statutory provisions on the basis of which the CPO was confirmed and the s.51 approval granted are invalid as repugnant to Articles 40.3 and 43 of the Constitution9 and/or contrary to Article 1 of the First Protocol of the European Convention on Human Rights.10 These statutory provisions are identified as “including”11 o Part IV of the Roads Act 1993. 1 Headings are not a curial part of this judgment and do not circumscribe the content thereunder. They are provided for navigational assistance only. 2 Since trial, the Board has become An Coimisiún Pleanála. As the expense of some anachronistic references I have generally referred to it as the Commission in what here follows. 3 All references to statutes in this judgment are to statutes as amended. 4 Planning and Development Act 2000 as amended. All references to statutes are to such statutes as amended unless otherwise indicated. S.215 relates to “Transfer of certain Ministerial functions under Roads Acts, 1993 and 1998, to Board.” S.217C relates to “Board’s powers to make decisions on transferred functions.” 5 ABP-313892-22. 6 S.76 reads: “A housing authority acquiring land compulsorily for the purposes of this Act may be authorised to do so by means of a compulsory purchase order made by the authority and submitted to and confirmed by the Minister in accordance with the provisions contained in the Third Schedule to this Act. §5 of the Third Schedule empowered the Minister to confirm a CPO. 7 Transfer of Minister’s functions in relation to compulsory acquisition of land to Board. 8 ABP-313961-22. 9 Article 40.3 reads in part: “1° the state guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2° the state shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” Article 43 reads: “1 1° the State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. 2° the state accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property. 2 1° the state recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this article ought, in civil society, to be regulated by the principles of social justice. 2° the state, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.” 10 Article 1 of the First Protocol ECHR reads: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 11 What follows is the full pleaded list – the word “including” is pleaded. 4 Lissan Coal v ABP & NTA [2026] IEHC 255 o S.44 of the Dublin Transport Authority Act 2008 (“DTA 2008”). o S.184 of the Local Government Act 2001. o Ss215 and/or 217C PDA 2000. o S.10 of the Local Government (No. 2) Act 1960.12 and/or o Ss.63 and/or 68 of the Lands Clauses Consolidation Act 1845 (the “1845 Act”). • A Declaration that the defence of statutory authority in the law of public nuisance or otherwise is unconstitutional in so far as it precludes, or does not provide for, an exception which would allow for the recovery of compensation in respect of o the reduction in the value of LCC’s land, and/or o the substantial loss to or likely closure of LCC’s business, at “Go Service”, Old Cabra Road, Cabra West, Dublin 7, in the circumstances outlined in this case. • A Declaration that the NTA may not interfere with and/or restrict any public right of way along Old Cabra Road and/or at such other locations where the s.51 Approval proposes such interference and/or restriction, other than those referred to in Part III (Section B) of the Schedule to the CPO. INTRODUCTION, FACTS & LISSAN’S RISK DECISION 3. The Scheme is one of 12 similar radial Core Bus Corridors in the “BusConnects” programme for 13 Dublin. That programme includes the BusConnects Dublin - Core Bus Corridors Infrastructure Works – of which works the Scheme is part. The EIAR for the Scheme14 describes it generally as running for about 11 km inbound from the Blanchardstown/Mulhuddart junction of the N3 road via, inter alia, Blanchardstown Shopping Centre, the Navan Road, the Old Cabra Road, Prussia Street, Manor Street and Stoneybatter to the North Quays in Dublin City centre. To state the obvious, these are “public roads” – for which, at least in this judgment, “public right of way” and “highway” may be regarded as synonyms. 4. The EIAR says that this access corridor is currently characterised by traffic congestion and, while bus lanes exist on most of the route, buses and cyclists compete for space with the general traffic, diminishing the attractiveness of these sustainable transport modes. The primary objective of the Scheme is to facilitate modal shift from car dependency by the provision of enhanced walking, cycle, and bus infrastructure, thereby contributing to an efficient, integrated transport system and a low-carbon and climate-resilient city. It is intended to significantly enhance travel by public transport by providing bus priority and improved pedestrian and cycling infrastructure. Particularly, the Scheme is to “Enhance the capacity and potential of 12 As substituted by S.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. 13 Identified in the Transport Strategy for the Greater Dublin Area 2016-2035. 14 Environmental Impact Assessment Report as required by 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 - and s.51 of the Roads Act 1993. See Generally, Chapter 1. 5 Lissan Coal v ABP & NTA [2026] IEHC 255 the public transport system by improving bus speeds, reliability and punctuality through the provision of bus lanes and other measures to provide priority to bus movement over general traffic movements”. The EIAR states that the Scheme “will improve both the overall journey times for buses along the route and their journey time reliability, by providing increased bus priority infrastructure. The result will be increased journey reliability, by largely removing interaction between bus traffic and general traffic, thereby delivering significant benefits to the travelling public and to the environment.” 5. The Scheme is complex. As its name suggests, its primary feature is “21.2 km (two-way) of bus priority infrastructure and traffic management”. It will require both appreciable physical changes to, and in the vicinity of, existing roads on the route and regulatory management of the resulting road space. It is a encompasses cycling and pedestrian facilities.15 Old Cabra Road is too narrow for continuous bus lanes and general traffic lanes in both directions. Accordingly, and in accordance with its premise, the Scheme will prioritise public transport and prohibit general through-traffic on Old Cabra Road between the Navan Road/Old Cabra Road/Ratoath Road Junction and the North Circular Road, allowing only public transport, local access traffic, cyclists, and pedestrians on that stretch. Through vehicles will be diverted via alternative routes. So the Scheme envisages bus gates at, inter alia, locations which, as it were, bracket the stretch of the Old Cabra Road onto which the Site fronts. These gates are to be north west of the Site - just south east of the Navan Road/Old Cabra Road/Ratoath Road Junction - and south-east of the Site – at the Old Cabra Road Railway Overbridge. 6. Lissan own and, since May 2022, operate a “Go Service” self-service, unmanned petrol filling station business, (the “Filling Station”) at 87- 89 Old Cabra Road, on the southern side of Old Cabra Road, Cabra West, Dublin 7 (the "Site"). Lissan bought the Site in February 2016 for €600,000 and operates the Filling Station. LCC now owns the Site. 7. The Site is on the stretch of Old Cabra Road between the Navan Road to the north-west and the North Circular Road to the south-east. The Site, of about 0.1 hectares, has frontage to Old Cabra Road of about 43m,16 in which frontage two entrances/exits give direct vehicular access and egress between the Filling Station and Old Cabra Road. On appeal17 by third parties, the Commission granted planning permission for the Filling Station in January 2019.18 Lissan claims to have invested over €4 million in the Site and business, including purchase, planning and construction costs – the latter of €1.8 million. Nothing turns in these proceedings on the precise quantum of the investment. It was clearly substantial. 15 As to what follows here, see, inter alia, the affidavit of Diarmuid Healy for the Applicants sworn on 17 April 2024. See also the exhibited Scheme documents. 16 Colloquially, Old Cabra Road is clearly a “main” road. 17 In January 2018, Dublin City Council decided to grant permission for the Filling Station described as, inter alia, the construction of a new fuel forecourt with 3 no. forecourt fuel pumps and forecourt canopy, control / store and offset fill buildings, air and water services area, underground storage tanks as well as other associated development works. 18 ABP Ref. No. 300958-18. 6 Lissan Coal v ABP & NTA [2026] IEHC 255 8. The Scheme will not, technically, restrict the traffic – in terms of vehicle type – actually passing the Filling Station. And vehicles exiting the Filling Station will be able to travel freely in either direction. But the two “bus gates” on the Old Cabra Road either side of and some distance from the Filling Station19 will in effect prevent inbound and outbound through traffic by private motor vehicles along the Old Cabra Road passing the Filling Station. Broadly, all accept that, even though public access to the Filling Station by a circuitous route (Glenbeigh Road) will remain, the bus gates and traffic restrictions will in reality remove over 90% of the private motor traffic from the stretch of Old Cabra Road onto which the Filling Station fronts and so will remove over 90% of the passing trade on which its viability depends. While the point has been put in official documents in various less alarming – indeed, regrettably euphemistic – ways, there is in the end no real dispute but that, in reality the Scheme and specifically the bus gates will put the Filling Station out of business. 9. Lissan in essence assert that, as matters stand on foot of the Impugned Decisions, their business will be ruined by the Scheme, without compensation and unlawfully in breach of their constitutional and legal rights. PRE-CPO/SCHEME – FROM NOVEMBER 2017 10. Lissan attempts to make something of the fact that the NTA was a statutory consultee in Lissan’s planning application but made no submission in that process. There is nothing in that attempt: • First, the NTA is not obliged to make a submission or observation in a planning application. • Second, and at least generally, any such obligation could not be on pain of its breach fettering the NTA’s later exercise of other statutory powers and discretions. • Third, on the facts, the point is anachronistic. As the NTA points out, the planning application was made in November 2017 and Dublin City Council decided in January 2018 to grant it. But the NTA did not publish, as a discussion document, the Core Bus Corridors Project Report until June 2018. 11. The NTA’s Core Bus Corridors Project Report discussion document of 12 June 201820 set out draft Bus Corridor proposals - including the Blanchardstown to City Centre Core Bus Corridor. An indicative route map - Map 5 - under the heading “Additional Specific Challenges on Route”, states: “Old Cabra Road and Prussia Street: In order to provide bus lanes, a proposal is to remove general through traffic on these two streets. Local access would still be maintained including to the shopping centre.”21 The NTA deposes and I accept that the “proposal that general through traffic would be removed on Old Cabra Road and Prussia 19 The papers referred also to other bus gates but I was absolved of their consideration – Day 1 12:15. 20 A copy of this Core Bus Corridors Project Report 2018 is well-buried in the Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022 – Exhibit AG1 Tab 1. The relevant map and text are further buried in an Appendix to that Core Bus Corridors Project Report 2018. 21 Emphasis added. 7 Lissan Coal v ABP & NTA [2026] IEHC 255 Street was made public since June 2018”.22 This is important. One must presume that Lissan, as a competent commercial enterprise taking, doubtless, a keen interest in the matter, must have noted, in June 2018 and before it even had planning permission for the Filling Station, at least the explicit prospect of removal of “general through traffic” on Old Cabra Road. 12. On 23 November 2018, the NTA wrote to Lissan stating that “the proposals contained in the Emerging Preferred Route for the Scheme for the Blanchardstown to City Centre Core Bus Corridor may impact on part of your property. An extract from a layout map showing an indicative layout of the scheme in the vicinity of your property is attached. The plan shows where the car lanes, bus lanes, cycle lanes and footpaths will be. … We do wish to reiterate that these are proposals only which are not fixed or finalised. If any …. land was ultimately necessary to be acquired from your property, appropriate compensation would have to be paid.”23 The letter offered a one-to-one meeting to discuss the project. Lissan did not take up the offer. 13. Lissan emphasises the underlined words above almost as if they rendered it prudent of Lissan to ignore the proposals in the letter. That is not so – if so, why bother sending the letter? In truth, this letter represents part of a proper, prudent, early and, in respect of Lissan (and no doubt others), targeted consultation process initiated by the NTA. The letter of 23 November 2018 makes clear that the Emerging Preferred Route was no mere straw in the wind: it was described as, subject to a consultation process, “the proposal which, …. is considered to offer the best solution to improve the bus and cycle network.”24 Lissan will have properly been expected, of its commercial competence and in its own interests, to carefully consider the contents of the letter and alert itself to any risk they may pose to its interests. Any failure to do so was at its own peril. 14. “Map 28: Emerging Preferred Route”, attached to the NTA’s letter of 23 November 2018, depicted • blue bus lane markings to the north-west of the Filling Station (inbound) and to the south-east of both the Filling Station and the junction of Old Cabra Road and Glenbeigh Road (outbound). • a two-way vehicular carriageway on the Old Cabra Road at the location of the Site open to general traffic. But it is clear that the bus lanes on either side would in reality eliminate general through traffic and limit general traffic to access and egress via Glenbeigh Road. I am satisfied that a proper analysis of Map 28 Emerging Preferred Route discloses that, albeit only as an Emerging Preferred Route, the NTA had in mind a scheme which would, as the Scheme later adopted and of which Lissan complains did, at very least highly restrict, if not eliminate, through traffic on the Lower Cabra Road past the Site - as Figure 1 below explains. 22 Affidavit of Aidan Gallagher Sworn 25 February 2025. 23 Emphases added. 24 Emphasis added. 8 Lissan Coal v ABP & NTA [2026] IEHC 255 15. It is also clear to me that this depiction was, in its essentials and as relevant to the viability of the Filling Station, very similar to the Scheme later adopted. Figure 1 – “Map 28 Emerging Preferred Route” - November 2018 - Extract • I have circled the Site on Old Cabra Road. • The city centre is to the south-east of the Site. North-west of the Site, just off the Figure, lies a “Major Junction” – of Old Cabra Road/Ratoath Road25 with the Cabra Road/Navan Road.26 Old Cabra Road runs south-east from the Major Junction to the North Circular Road. • Bus Lanes are depicted in Blue. While they may vary somewhat as to hours of operation, any reader – certainly any reader such as Lissan with usual anxiety for its business and access to expertise - would infer at least the likelihood that in very considerable degree most traffic other than buses, other public service vehicles and bicycles, would be excluded from those lanes. • There is a bus lane running on Old Cabra Road from the Major Junction to the north-west, in towards the city centre. It ends at a point clearly designed to allow local access to and egress from houses on the northern side of Old Cabra Road. While such minor local traffic could travel towards the city centre on Old Cabra Road, it is clear that the bus lane depicted would prevent in-bound through traffic from the Major Junction to the north west along Old Cabra Road into the city. • There is an outbound bus lane running on Old Cabra Road from the south-east to a point just short of 25 R805. The Ratoath Road is the outbound continuation of the Old Cabra Road. 26 R147. The Navan Road is the outbound continuation of the Cabra Road. 9 Lissan Coal v ABP & NTA [2026] IEHC 255 the “signalised junction”. It would prevent outbound through traffic from the south-east along Old Cabra Road. • The “signalised junction” is that of Old Cabra Road with Glenbeigh Road. It is clear that the only outbound general traffic (as opposed to busses and cyclists) along Old Cabra Road will be that emanating from Glenbeigh Road. 16. While hours of operation of the bus lanes might affect the detail and degree of effect, the net result of the Emerging Preferred Route depicted in this Map 28, if effected, would have been a loss of inbound and outbound passing trade to the Filling Station of broadly the same order as that which will be caused by the approved Scheme. I may say that I discerned this from my own examination of this Map 28. But it is confirmed by the Affidavit of Aidan Gallagher for NTA,27 to the effect that this Map 28 “made it clear that the proposal would be to remove general through traffic on Old Cabra Road and meant that the Filling Station would only be accessible by private car via Glenbeigh Road.” 17. Daniel Loughran deposes for Lissan28 that “While the NTA’s letter dated 23 November 2018 and "Map 28: Emerging Preferred Route" were received, I say and believe that these communications did not adequately explain the catastrophic impact the proposed scheme would have on the viability of the Applicants’ business” and that “it was entirely unclear from Map 28 that the proposal would reduce passing traffic on the Old Cabra Road by approximately 92 per cent and/or that private vehicle use of the Old Cabra Road was intended to be limited to local access only.” I do not impugn Mr Loughran’s account of Lissan’s subjective interpretation of the position. But as this is a matter of the objective interpretation of the documents in question, I respectfully disagree with him. Lissan were objectively put on notice in November 2018 of the risk of the loss of its passing trade. Indeed, Map 5 in the June 2018 Report, in the public domain, had said clearly that the removal of through traffic on the Old Cabra Road was in prospect. Mr Gallagher deposes, and I agree, that “the Applicants were on actual notice of the emerging proposals for the route, including that general through traffic along Old Cabra Road would be removed, since the NTA letter dated 23 November 2018 which was sent prior to the grant of planning permission on 21 January 2019”. 18. Map 28 Emerging Preferred Route also envisaged a single outward bus lane on the southern (Site) side and a cycle lane on the opposite side - which would have required some road widening and hence land acquisition from the Site. That is not required by the Scheme approved. The CPO does not encompass acquisition of any land from Lissan.29 19. The letter of 18 November 2018 also alerted Lissan to an imminent public consultation process as the Emerging Preferred Route proposals would be “published in full shortly to get public feedback in relation to them. No decisions have been made to proceed with these proposals, and none would be taken until we 27 Sworn 25 February 2025. 28 Affidavit sworn 17 April 2025. 29 From the second round of non-statutory public consultation on, it was no longer proposed to acquire lands from the Applicants because the updated proposal included a shorter outbound bus lane on Old Cabra Road at this location and it was no longer necessary to widen the road at this location. 10 Lissan Coal v ABP & NTA [2026] IEHC 255 have concluded the consultation process”. Again, any failure to participate was at Lissan’s own peril. Map 28 Emerging Preferred Route was in fact part of an “Emerging Preferred Route Option: First Round of Non- Statutory Public Consultation” which the NTA held from November 2018 to May 2019 and for which it published a consultation document which included Map 28 Emerging Preferred Route.30 That consultation document also included following text: “It is proposed that public transport, local traffic and cyclists only are permitted on the section of the Old Cabra Road between the Ratoath Road junction31 and North Circular Road with through traffic prohibited on this link.” 32 20. It was, therefore, perfectly clear from documents repeatedly published by the NTA and in the public domain in 2018 and over a year before they started construction of the Filling Station – which documents, in its own interest, Lissan should have consulted and on which it should have taken expert advice if needs be - that there was a real prospect of prohibition of through traffic, and hence loss of the passing trade, on the Old Cabra Road. Lissan’s Risk Decision 21. In short, if Lissan did not see from Map 5 in November 2018 the risk to their business of which they now complain, they ought to have seen it and cannot blame others for their ignorance of it prior to their investing in the Site. If Lissan’s eyes were not open to the risk to its contemplated Filling Station business from, at latest, the NTA’s letter of 23 November 2018 and attached map implied, they should have been. 22. On 28 February 2019, citing liaison with “experienced planning and building experts”, Lissan wrote to the NTA by letter headed “Objection to Emerging Preferred Route”. They asserted that the proposed road widening would have a significant and detrimental impact on the Site which was at that point being made ready for the construction of the Filling Station in accordance with planning permission and by way of a considerable capital investment. The letter detailed foreseen impacts of the intimated land acquisition for road widening33 and suggested that “a reasonable alternative to your current proposal would be to commence the road widening after our site adjacent to Earls Court”. As stated above, the road widening and hence the compulsory purchase of part of the Site, is no longer intended. 30 The 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p116. Map 28: Emerging Preferred Route is on page 174. 31 i.e. the Junction next North-west of the Site at which the Scheme now intends a bus gate. – see Map 27 Emerging Preferred Route on page 174 of the 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022. 32 The 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, §2.2.3 is at p129. 33 “The current proposal will impact on the following aspects of our site: • Eliminate the pump lane closest to the road therefore reduced facilities for customers. • Underground Tanks could be structurally undermined when widening construction works commence with the potential for significant environmental impact …” 11 Lissan Coal v ABP & NTA [2026] IEHC 255 23. However Lissan’s letter of 28 February 2019 said nothing of the prospect, explicitly published in 2018, that through traffic would be prohibited on the Old Cabra Road (“through traffic prohibited on this link.” 34) – as was in any event apparent from Map 28 Emerging Preferred Route. Their letter expressed no concern at the clearly implicit prospect of the loss of its passing trade. It is not apparent that Lissan had appreciated the potential implications of the Emerging Preferred Route proposals for their passing trade as described above. However, and clearly, they cannot complain that they had not been adequately informed in that regard - they had had the benefit of Map 28 Emerging Preferred Route and expert assessment of the Emerging Preferred Route. 24. Filling Station construction did not start until January 2020. The NTA by letter to Lissan of 31 January 2023 asserted that the Filling Station “was built in full knowledge of the emerging CBC scheme proposals following a grant of planning permission for the development by An Bord Pleanála in January 2019”. Lissan replied by submission of 12 July 2023 that this was “an entirely incorrect characterisation” on the basis that the NTA had made no comment in the planning process which resulted in Lissan’s planning permission, and that Lissan “had made a significant investment … including the purchase of the site and the appointment of a design team”. While that may be true, it is notable that in their submissions of 30 August 2022 in the S.51 Process and again in the affidavit of its director, Michael Loughran, sworn on 16 August 2024, Lissan asserts that “The extent of financial investment has been wholly based on the extent of due diligence carried out in respect of the subject site prior to the lodgement of the planning application to develop a service station on the site. This due diligence, which took the form of extensive traffic assessment and modelling identified that the site would represent a highly lucrative location for the establishment of a petrol/service station due to its position on an arterial route into Dublin city centre.”35 25. Of this passage, I observe that • The Site had been bought in 2016 – at the same general risk as any such commercial purchase. • The planning application had been made in November 2017.36 • No doubt the BusConnects Scheme evolved over time – as is the nature of such schemes. Indeed, in November 2018 it was described as “the Emerging Preferred Scheme”. There is no suggestion that the NTA was dilatory in providing to Lissan the information it provided in November 2018 – including Map 28 Emerging Preferred Route. • Lissan does not appear to have consulted the June 2018 report and/or the November 2018 consultation document, which it ought to have consulted and which made explicit the prospect of prohibition of through traffic on the Old Cabra Road. Even if I am wrong in so holding, that prospect was apparent to Lissan – or ought to have been - from Map 28 Emerging Preferred Scheme which the 34 The 2018 Consultation Document is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, §2.2.3 is at p129. 35 The two versions of this text differ immaterially. 36 Affidavit of Aidan Gallagher sworn 25 February 2025. 12 Lissan Coal v ABP & NTA [2026] IEHC 255 NTA had sent it in November 2018. • The planning permission was granted by the Commission in January 2019. Apologising for tautology, I observe that as, with all permissions, it was a permission. It did not oblige or commit Lissan to develop the Filling Station or invest in that project. Many planning permissions are never effected. • Counsel for Lissan accepted, as he had to, that it had no obligation on foot of the permission to build a Filling Station. To the proposition that Lissan built knowing that the bus gates were at least potentially on the way, his response was that “they were absolutely entitled to”.37 One may say that of many commercial endeavours: it does not immunise the entrepreneur from the known risks of doing so. • The passage in the submissions of 30 August 2022 in the s.51 Process, and again in the affidavit of Mr Loughran sworn on 16 August 2024, does not disclose whether Lissan had revisited its due diligence on receipt of Map 28 Emerging Preferred Route in November 2018, at any time after its 2017 planning application, or before actual development of the Filling Station which started in January 2020. Given the information available to Lissan as I have described it above, it is difficult to understand why this passage does not disclose the position in that regard. Lissan does not in these proceedings disclose its reasoning at that time as to why it built on from January 2020 despite, if nothing else, the implications of Map 28 Emerging Preferred Route and the explicit intimation, at least as in contemplation by the NTA, that “through traffic” would be “prohibited” “on the section of the Old Cabra Road between the Ratoath Road junction and North Circular Road.” 26. It appears to me that the appropriate inference is that Lissan must be taken to have • understood prior to committing itself to development of the Filling Station that the Scheme, if effected and depending on the precise form it might ultimately take, posed a significant risk to its viability. • decided to take that risk. That inference is appropriate whether Lissan in fact adverted to the risk and decided to take it, or failed to advert to the risk by failing to take obvious steps to protect its own interest by updating its due diligence in light of all, or for that matter any, of the June 2018 report, the November 2018 Emerging Preferred Route consultation document and Map 28 Emerging Preferred Route and/or before actual development of the Filling Station. 27. Taking Lissan as a competent investor which decided to take the risk of investing in the Filling Station, it is easy to speculate, but unnecessary to conclude, why it might have done so. Perhaps Lissan optimistically thought the possibility that the Scheme would not proceed, or would be re-routed to preserve its passing trade, worth risking. 28. Notably, Lissan’s submission of 30 August 2022 described the Site as “a highly lucrative location for the establishment of a petrol/service station due to its position on an arterial route into Dublin City Centre. Such was the level of expectation on the financial 37 Day 3 13:28. 13 Lissan Coal v ABP & NTA [2026] IEHC 255 performance of the petrol/service station, with this expectation realised on the basis of current operating profits, that the design parameters of the development were expanded accordingly with the intent of our client being to provide the state-of-the-art service station which exists on site at present …” Perhaps Lissan took the view that, by the time the Scheme was actually effected, having overcome all planning and legal hurdles in the meantime, the likely return would already have made its investment worthwhile – no doubt taking into account residual Site value on cesser of business. Perhaps Lissan envisaged that it would be compensated if the Scheme proceeded. Perhaps none of these possibilities describe its rationale. Lissan does not tell us. And actual outturn does not illuminate its risk-based rationale at the relevant time. But what is clear is that the risk posed by the Scheme was progressively apparent from June and November 2018, whether or not Lissan in fact adverted to it. Lissan, as an entrepreneur38 in the business, inter alia, of identifying, assessing, quantifying, and deciding whether to take commercial risk, must be taken to have decided, before committing to developing the Filling Station, to take the risk disclosed to it in November 2018 by Map 28 Emerging Preferred Route. As a matter of fact, Lissan must be taken to have developed the Filling Station in the teeth of the risk of loss of its passing trade. NTA e-mail of 8 March 2019 and thereafter 29. On 8 March 2019, the NTA by email replied – in part as follows: 'In the interim, it is entirely up to you to proceed with your formally approved plans. Should the BusConnects Programme get formal approval it will be 2021 at the earliest that any acquisition and construction could proceed, and appropriate compensation for any properties subject to the formal compulsory purchase order would be negotiated. The construction strategy and sequence of the 16 core bus corridors are not yet determined; construction of this corridor could start as early as 2021 or as late as 2026. We note and appreciate your suggested modifications to the concept plans. We will be happy to arrange a one-to-one meeting to discuss in more detail.' 30. Lissan criticise this letter “as a direct opportunity for the NTA to identify the possibility of introducing bus gates and the subsequent detrimental impact on the future station. The NTA failed to notify our client at this stage.”39 That is unfair. The NTA had already warned Lissan of the risk that the Filling Station would lose its passing trade and was entitled to assume that Lissan was aware of that risk. 31. The first sentence of the foregoing passage from the NTA letter of 8 March 2019 does not, literally, makes sense. However, in context, its meaning is quite clear: it can be read as “In the interim, it is entirely up 38 Defined by Oxford as “a person who sets up a business or businesses, taking on financial risks in the hope of profit.” 39 Submission 12 July 2023. 14 Lissan Coal v ABP & NTA [2026] IEHC 255 to you whether to proceed with your formally approved plans.” In other words: proceed at your own risk. I have no doubt that a properly risk-conscious Lissan should have so read it. 32. Despite being offered one, Lissan did not request a meeting. They say40 and I accept that this was because the NTA’s email suggested that the scheme was still in its early stages, that construction would not commence until 2021 at the earliest and that further engagement would occur closer to the implementation of the Scheme. I also accept that Lissan believed that their concerns had been adequately raised in their letter dated 28 February 2019. However, I do not accept the averment that this belief was reasonable: that letter raised only their objection to the prospect of acquisition of land from the Site. It did not raise the prospect of the loss of their passing trade of which prospect, as I have held, they were long-since objectively on notice. As to the concerns actually raised in their letter, Lissan unfairly assert that “NTA failed to proactively follow up”. In fact, the NTA abandoned the land acquisition to which Lissan had objected. 33. Lissan’s affidavit41 is phrased as though it had complained in the letter dated 28 February 2019 of the prospect of the loss of passing trade. It did not. But if it had done, that would simply cast in further doubt its wisdom in starting development almost a year later with the passing trade issue, of which it had (on its hypothesis) complained, unresolved by reason of the NTA’s so-called failure to proactively follow up. And in any event, that observation raises the more pressing question why, as the party at risk of catastrophic loss of passing trade of which it had supposedly inquired, Lissan itself did not “proactively follow up”? Of course, the probable truth underlying the entire matter is that Lissan had not, as in my view it objectively should have, adverted at this time to the risk of catastrophic loss of passing trade or, having adverted to it, decided to proceed nonetheless. As I have tried to demonstrate, that such a course may now seem in hindsight to have been unwise does not mean that it must have seemed so to Lissan at the time - even if they saw the risk involved. 34. Between 4 March 2020 and 17 April 2020 the second, and between 4 November 2020 and 16 December 2020 the third, rounds of non-statutory public consultation on the Preferred Route Option for the Scheme took place. From the second round on, the NTA • no longer proposed to acquire lands from the Site because the updated proposal included a shorter outbound bus lane on Old Cabra Road and it was no longer necessary to widen the road at this location. • proposed 24-hour bus gates on Old Cabra Road. 40 Affidavit of Daniel Loughran sworn 17 April 2015. 41 Affidavit of Daniel Loughran sworn 17 April 2015 §§ 8 & 9. 15 Lissan Coal v ABP & NTA [2026] IEHC 255 What are Bus Gates? 35. The term “bus gate” is not defined by or pursuant to statute. It does not refer to a physical gate or the like – rather it is created by signage and road markings restricting road use. In my view, nothing turns on whether the gate is physical or is the legal effect of signs and road markings if the net effect is the same in law. Bus gates are described as follows in the EIAR later submitted to the Commission: “A Bus Gate is a sign-posted short length of stand-alone bus lane. This short length of road is restricted exclusively to buses, taxis, cyclists and emergency vehicles. It facilitates bus priority by removing general through traffic along the overall road where the bus gate is located. General traffic is directed by signage to divert towards other roads before it arrives at the Bus Gate”. 42 The Traffic Signs Manual43 describes bus gates as a “modal filter” and states that they “prohibit general traffic movements travelling in the same direction as buses and other authorised vehicles”. It stipulates road signs for that purpose. 36. As the foregoing states, and as is clear on the facts of this case, a bus gate is a type of bus lane. I am unclear of the precise significance of the phrase “stand-alone”. My impression is that a bus gate differs in practice from an ordinary bus lane in that, • the former likely occupies the entire vehicular carriageway in at least one direction, so that general traffic in that direction is removed from the road in question. • the latter may be more likely to be limited in their hours of operation and typically run parallel to lanes open to general traffic - so that general traffic, though removed from the bus lane, is not removed from the road in question. 37. Whatever the technical differences however, it is clear that the proposed bus gates relevant to this case will operate on a 24-hour basis and will, in effect, remove over 90% of through traffic from the stretch of Old Cabra Road which passes the Filling Station, and thereby a similar percentage of its passing trade. It is also clear that the bus gates’ effect on the Filling Station’s passing trade will be similar to the effect which the scheme depicted on Map 28 Emerging Preferred Route would have had. 38. As stated, on 4 March 2020, the NTA started the second round of non-statutory public consultation for the Blanchardstown to City Centre Core Bus Corridor – this time on the Preferred Route Option and in light of “Map 28: Preferred Route”.44 Like its predecessor, Map 28: Emerging Preferred Route, Map 28: Preferred Route also indicated that general through traffic along Old Cabra Road would be removed. (This map also deleted the prospect of land acquisition from the Site.) 42 EIAR Vol 2 §4.6.4.3. Emphasis added. See also Glossary in Blanchardstown to City Centre Core Bus Corridor Scheme Public Consultation Report 2018- 2022. See also Inspector’s S.51 Report §7.65. 43 Chapter 5, Regulatory Signs, p.50. 44 From “Blanchardstown to City Centre” Core Bus Corridor Preferred Route Public Consultation March 2020. It is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p276. Map 28 is on page 329. 16 Lissan Coal v ABP & NTA [2026] IEHC 255 39. 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.” 40. 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 2020. 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. 41. 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 2020. It is found as an Appendix to the Core Bus Corridor Scheme Public Consultation Report 2018-2022, starting at p276. Map 36 is on page 339. 46 Emphasis added. 47 Affidavit of Daniel Loughran sworn 17 April 2015 §12. 48 Affidavit of Michael Loughran sworn 15 August 2024 §17. 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 42. 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 43. 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 2025. 50 Dublin City Development Plan 2022 – 2028. “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 §23. 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 44. 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 45. 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 §10.1. 56 EIAR §10.2.1.2. 57 Though slightly clumsily worded, this clearly describes the position prior to the implementation of the bus gate. See Day 1 12:13. 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 46. The impacts on the Filling Station in the construction and operational phases are summarised in the EIAR,59 as follows: Residual Impact Impact Significance Residual Impact Significance Description (Pre-Mitigation) (Post-Mitigation) Commercial Negative, Very Significant and Long-Term - Negative, Very Significant and Long-Term Accessibility Go Station (Aughrim Street)60 – Go Station (Aughrim Street) CPO & LISTS OF PUBLIC RIGHTS OF WAY TO BE EXTINGUISHED, RESTRICTED OR INTERFERED WITH 47. 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. 48. 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 23. Summary of Significant Residual Impacts, Table 23.1. 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 §1. 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. 49. 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. 50. 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. 51. 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 52. 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. 53. 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. 54. 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. 55. 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 2025. 66 Tent Engineering Ltd. 23 Lissan Coal v ABP & NTA [2026] IEHC 255 56. 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. 57. 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 2023. 58. 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) §4.57. 24 Lissan Coal v ABP & NTA [2026] IEHC 255 INSPECTOR’S REPORTS & IMPUGNED DECISIONS 59. 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. 60. 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. 61. 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.51 Report - 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 D