THE HIGH COURT
PLANNING & ENVIRONMENT

Record Number: 2024/1448 JR

Between:

SHANE FORAN

Applicant

AND

AN BORD PLEANÁLA,

THE MINISTER FOR TRANSPORT,

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE,

IRELAND AND THE ATTORNEY GENERAL

Respondents

AND

GALWAY CITY COUNCIL

and

THE NATIONAL TRANSPORT AUTHORITY

Notice Parties

 

 

 

EX TEMPORE RULING OF MR JUSTICE DAVID HOLLAND DELIVERED ORALLY ON 25 MARCH 2025

 

 

Contents

EX TEMPORE RULING OF MR JUSTICE DAVID HOLLAND DELIVERED ORALLY ON 25 MARCH 2025. 1

INTRODUCTION.. 2

Claim to Quash GTS & Core Ground 9. 3

Claim to Quash t GTS for breach of or non-compliance with 2023 European Declaration on Cycling. 4

GTS & Its Implementation. 4

Issues & Submissions. 5

WHETHER THE CHALLENGE TO THE GTS IS OUT OF TIME?. 6

Does any Time Limit Apply?. 6

Which Time Limit Applies? - O.84 (3-month) or S.50 PDA 2000 (8wks) & is the Amendment out of Time?. 8

O.84 R.21 RSC. 8

S.50(2) & (6) PDA 2000. 8

North East Pylon. 8

Extension of Time?. 10

S.50(8) PDA.. 10

Interests of Justice/Good & Sufficient Reason to Extend Time. 11

RESULT. 14

 

 

 

 

 

INTRODUCTION

 

1.                   The Applicant ("Mr Foran") is a long-time advocate and activist for cycling in the city of Galway. He is, at very least, one of the moving spirits behind the Galway Cycling Campaign. He appears in person and he presented his position in the application on which I am about to rule with ability and courtesy, for which I am grateful. Mr Foran seeks, primarily, certiorari of the decision of the Board made on 27 September 2024 and published on 16 October 2024 to approve, under s.51 of the Roads Act 1993, Galway City Council's proposed road development consisting of the "BusConnects Galway Cross-City Link Scheme, University Road to Dublin Road and associated roads works and road realignments" (the "Scheme"). Mr Foran considers that Scheme substantively, and more to the point legally, deficient in its provision for cycling.

 

 

2.                   The substantive question which arises at this point is whether Mr Foran should have leave to seek judicial review of, and certiorari quashing, the Galway Transport Strategy 2016 ("the GTS"). The GTS was adopted in 2016 by the notice parties and also Galway County Council. Mr Foran clearly and ever since its adoption considers the GTS misconceived as to its merit and as to its consistency with various other policies as they relate to catering for cycling traffic in Galway city - he has articulated these views in some detail in these proceedings.

 

 

3.                   The proceedings issued on 20 November 2024 by way of application of leave to seek judicial review. The original Statement of Grounds mentioned the GTS only in passing and did not seek any relief in relation to it. On 9 December 2024 the Court directed that the leave application be heard on notice and gave liberty to file an amended Statement of Grounds in the form Scheduled to the Order. As is the norm in such ex parte orders permitting the filing of an amended Statement of Grounds, it was made explicitly without prejudice to any points which other parties might take as to the amendments. The amended Statement of Grounds in the form scheduled to the Order of 9 December 2024 caused me quite a bit of confusion as it is indorsed as follows:

 

"Amended the 28th day of November 2024 pursuant to order of Mr. Justice Humphreys dated the 25th day of November 2024."

 

In fact, as far as my investigations reveal, while the matter was before Humphreys J on 25 November 2024, he made no order on that day. Notwithstanding the contrary indication in the indorsement I have just described, his order permitting the filing of an amended statement of grounds was made on 9 December 2024 not 25 November 2024. And on foot of that order the amended Statement of Grounds was filed and delivered on 9 December 2024.

 

 

4.                   That amended Statement of Grounds filed and delivered on 9 December 2024 did contain new content as to the GTS:

 

·         §§39 & 40 cited the GTS as evidence that the Notice Parties were "operating in apparent avoidance of both state and European policy on sustainable transport and, in some cases, in objective opposition to those policies and in apparent opposition to reports and guidance, both national and local, on how those sustainable transport policies should be implemented."

 

·         §§50, 51 & 52 asserted that Appendix F of the GTS, as to the proposed city cycling network:

o   did not mention the public bike share scheme which was already operational,

o   excluded existing operational public bike stations,

o   failed to acknowledge a 2011 "Jacobs report" - for the NTA entitled: "Proposals for Introducing Public Bike Schemes in Regional Cities" - or the recommendations of that report, and

o   took the position that they do not deem the roads serving the train station, the private coach station, the harbour or various public bike stations to be part of any nominated cycle network for Galway city.

 

The amended Statement of Grounds filed and delivered on 9 December 2024 did not:

 

·         impugn the GTS as legally invalid;

 

·         seek any relief in relation to the GTS. Specifically it did not seek certiorari quashing the GTS; or

 

·         seek to join the Notice Parties, or for that matter, Galway County Council as respondents in the proceedings against whom any such relief might be sought.

 

 

5.                   On 15 December 2024, four days after filing his amended Statement of Grounds Mr Foran proffered a draft further amended Statement of Grounds. It, for the first time, impugned and intimated that he sought certiorari of the GTS. It did not seek to join the Notice Parties, as respondents. For administrative convenience to simplify the leave application, by consent and by order of 27 January 2025 on foot of Mr Foran's notice of motion to amend his Statement, Mr Foran was permitted to file a further amended Statement of Grounds in terms of his draft of 15 December 2024 - which he filed and delivered on 27 January 2025 (the "Statement of Grounds"). That permission was granted without prejudice to any points which might be raised by the Respondents or the Notice Parties.

 

 

6.                   In the events which have occurred, leave is not opposed save for the challenge to the GTS, which is contested, and leave will be granted to the extent it is unopposed. Accordingly, this is my ruling on Mr Foran's contested application for leave to apply for judicial review to the extent that he seeks to challenge the GTS. As authors of the GTS, the notice parties were given liberty to oppose leave as if they were respondents - in contemplation that, if the contested leave is granted, they would be joined as respondents.

 

 

 

Claim to Quash GTS & Core Ground 9

 

7.                   §D(b) of the Statement of Grounds seeks relief as follows:

 

"An Order of Certiorari by way of judicial review quashing the 2016 Galway Transport Strategy."

 

 

8.                   §E, Part 1, of the Statement of Grounds states Core Ground 9, in part, as follows

 

"The 2016 Galway Transport Strategy has become ultra vires by reason of supervening illegality.

 

Elements of the 2016 Galway Transport Strategy are in conflict with, and in objective opposition to, the purposes of the European TEN-T regulations in both their 2013 version (Regulation (EU) 2013/1315) and 2024 (Regulation (EU) 2024/1679) versions.

                ...

The TEN-T regulations are applicable to all member states.

 

In 2024, Galway city was confirmed as an urban node for the purpose of the European Union TEN-T regulations and appears in the annex of TEN-T EU cities.

 

Galway's status as a TEN-T urban node has the effect of making the Galway Transport Strategy unlawful by reason of supervening illegality." [1]

 

It will be seen that the foregoing content of Core Ground 9 impugns the GTS by reference only to the TEN-T Regulations.

 

 

 

Claim to Quash GTS for breach of or non-compliance with 2023 European Declaration on Cycling

 

9.                   Core Ground 9 also includes the following text:

 

"Elements of the 2016 Galway Transport Strategy are in conflict with, and in objective opposition to, the 2023 European Declaration on Cycling."

 

 

10.               I am satisfied that the 2023 European Declaration on Cycling is an essentially precatory or aspirational document. It is not a legislative act, is of no legal effect and is incapable in law of affecting the legality of the GTS. Mr Foran more or less accepted that this was so and did not seriously pursue the issue. I refuse as unarguable the application for leave to impugn the legality of the GTS for breach of or non-compliance with the 2023 European Declaration on Cycling.

 

 

 

GTS & Its Implementation

 

11.               The GTS is a non-statutory, strategic, "Integrated Transport Management Programme for Galway City and environs" for the 20 years to 2026. It was preceded by public consultation in which Mr Foran participated. It set out principles and policies and proposals for the road network, public transport network, walking network and cycling network of Galway City and environs, with a view to allowing the city to grow sustainably. It envisaged projects accordingly, including the Scheme, albeit in outline. It was intended as what counsel for Galway County Council called an "apex" or "macro" policy for incorporation in, and was incorporated by reference in, the later Galway City and County Development Plans - most recently the Galway City Development Plan 2023-2029 and the Galway County Development Plan 2022-2028. [2] It has also been incorporated in the relevant RSES [3] (including its Galway Metropolitan Area Strategic Plan ("MASP").

 

 

12.               I should say that though the GTS is a non-statutory document no-one argued that it was non-justiciable in judicial review - in my view correctly.

 

 

13.               In addition to its incorporation in the development plans and RSES, and broadly speaking, the implementation of the GTS has been in train for many years. The NTA deposes that pursuant to the GTS it has funded GTS sustainable transport schemes in a total of about €44 million. The NTA identifies those schemes, in addition to the Cross-City Link Scheme, and asserts that the attempt to undermine the GTS may impact on those schemes. While I need not recite their lists here, the deponents for, respectively, Galway City Council and the NTA list numerous projects/schemes effected, being effected and to be effected on foot of the GTS and are not contradicted by Mr Foran in that regard. They invoke, again uncontradicted, and in the words of Mr O'Riordan of the Council:

 

"The prejudice caused to the Council by virtue of leave being granted to challenge the GTS at this stage, so far removed from and beyond its adoption and publication in 2016, would be the clear risk of delay to these proposed projects and to ongoing ones, and the economic cost of traffic disruption/ inconvenience of commuters associated with that. 38. Relatedly, a number of the current projects (namely a number of the GTS projects referred to above), if ceased now by reason of or as a consequence of the Applicant's challenge to the validity of the GTS, would cause disruption with financial and economic costs. [It would] undermine the policy basis of the aforementioned projects, which include public transport projects that are being funded by the NTA. This has the potential to cause significant prejudice to the development of those projects and, therefore, undermine the work of the Council in same and put at risk the public funding which has already been incurred".

 

 

 

Issues & Submissions

 

14.               The following issues arise:

 

1.       Whether the challenge to the GTS is out of time?

2.       If so, whether an extension of time should be granted?

3.       If so whether the challenge to the GTS constitutes an impermissible, collateral challenge to the County Development Plan 2022 - 2028 and the City Development Plan 2023 - 2029?

4.       Whether the grounds of challenge disclose an arguable basis on which leave should be granted, whether by reference to the test of "arguable grounds" or "substantial grounds"?

5.       Whether the Grounds of challenge are adequately particularised?

 

 

15.               The Council, Mr Foran and the NTS have filed written submissions and made oral submissions on these issues. The Board and the State Defendants took a neutral position.

 

 

 

WHETHER THE CHALLENGE TO THE GTS IS OUT OF TIME?

 

Does any Time Limit Apply?

 

16.               In his amended Statement of Grounds filed on 9 December 2024, Mr Foran had, for the first time, been somewhat critical of the GTS. But, as stated, it was not until by his draft statement of grounds delivered on 15 December 2024 that he intimated his intention to seek to quash the GTS. The GTS prepared by the Notice Parties and Galway County Council is an administrative act distinct from the Impugned Roads Act approval of the Scheme by the Board. Indeed, the GTS preceded the Roads Act approval by many years and was adopted by legal persons other than the Board.

 

 

17.               Whether a time limit for seeking leave to seek judicial review applies to an amendment to a statement of grounds turns on the nature of the amendment. In North Westmeath Turbine Action Group, [4] Collins J considered an application to amend a statement of grounds by adding a claim against the State for a declaration. Collins J held that the claim for the declaration arose directly and naturally out of the existing grounds in the statement of grounds and so the application to amend was not to be approached as if it involved a late application for leave to seek judicial review. On the other hand, he observed that such an approach is appropriate where a substantially new case is sought to made by way of the amendment. In O'Lone, [5] Humphreys J observed, [6] for reasons he set out at some length, that the notice party opposing the amendment in O'Lone on the basis of the judgment of Collins J had relied excessively on his one sentence: "That is the appropriate approach where a substantially new case is sought to be made." Humphreys J considered it clearly obiter, that no supporting authority had been cited and that the Court of Appeal had not defined what it meant by "a substantially new case". That said, Humphreys J continued: [7]

 

"I do not think it can be contested that if 'substantially new case' means challenging a new and unrelated decision, then an amendment application must be approached as if it were a late application for leave. Indeed, I made that point in Sherwin, as reflected in the table above. The situation would be somewhat different if what was intended to be meant by 'substantially new case' was merely a new ground for an existing relief."

 

 

18.               In referring to the "table above" Humphreys J in O'Lone referred to a table [8] in which he had, on foot of his decisions in Habte and Sherwin, [9] attempted to summarise the position as to the appropriate approach, in various situations in which amendment of a statement of grounds is sought after the expiry of the time-limit for instituting judicial review. The first situation he identified was one in which the proposed amendment challenges a totally separate decision from that challenged in the original (or previous) statement of grounds. The relevant entry in the table reads: "Requires good and sufficient reason for an extension of time." This clearly implies that the relevant time limit applies, such that an order extending it is necessary.

 

 

19.               However, in Coastal Concern Alliance [10] Simons J cited North Westmeath Turbine Action Group in approving its use of the phrase "substantially new case". He said

 

"Part of the rationale underlying the three month time-limit prescribed for judicial review proceedings under Order 84 is that the beneficiary of an administrative decision should know, within a short period of time, that the decision is subject to a legal challenge. The same rationale applies to an amendment to the statement of grounds which involves a significant enlargement of the legal challenge by the introduction of a substantially new case."

 

While the circumstances were different in Coastal Concern Alliance, the following passage from the judgment of Simons J does apply by analogy to the positions of the Council and the NTA in the present case:

 

"Here, the proposed amendment to the statement of grounds indisputably involves a significant enlargement of the legal challenge. The amendment, if allowed, would introduce an entirely new claim against the developer. As initially pleaded, no relief had been sought against the developer. The reliefs sought were all directed to the respondents qua the competent authorities which had made the decision to grant development consent. The developer's interest in the proceedings lay in the fact that it was the beneficiary of the development consent. Under the proposed amendment, by contrast, the developer would be on hazard of declaratory relief being granted against it directly. This would change the entire complexion of the case from the developer's perspective. Indeed, it would necessitate the making of a formal order altering the developer's status in the proceedings from that of a mere notice party to that of a respondent."

 

 

20.               The question thus arises whether the 2016 GTS is to be regarded in "O'Lone terms" as a totally separate decision unrelated to the impugned s.51 approval. In my view, the words "totally" and "unrelated" should not be given an absolute meaning nor should the judgment in O'Lone, be read in that regard as if a statute. In my view, the reference in North Westmeath Turbine Action Group to a "substantially new case", of which Simons J approved in Coastal Concern Alliance, accurately states the rule as it relates to amendments seeking to quash decisions as to which certiorari has not previously been sought. Nor do I think that in this case the non-statutory GTS of 2016 falls into the alternative category in the O'Lone Table of "an interim decision in the same process" as that which resulted in the Roads Act approval of 2024.

 

 

21.               In my view, the amendment in this case, as it relates to the GTS, is directed at a "substantially new case" seeking certiorari of a new administrative decision by parties other than the Board which decided the impugned Roads Act approval. In my view, the relevant time limit for commencing judicial review, whatever it may be, applies to the amendment as it relates to the GTS.

 

 

 

Which Time Limit Applies? - O.84 (3-month) or S.50 PDA 2000 (8wks) & is the Amendment out of Time?

 

22.               The following are the two possible applicable time limits.

 

 

O.84 R.21 RSC [11]

 

(1)          An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.

 

 

S.50(2) & (6) PDA 2000 [12]

 

50.— (2)              A person shall not question the validity of any decision made or other act done by —

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act, ... otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ...

 

(6)          Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the ... Board.

 

 

 

North East Pylon

 

23.               While it is not agreed, I assume in Mr Foran's favour, without so finding, that the GTS is a measure of general application. On that assumption, I further assume in his favour that the time limits for seeking leave to seek judicial review do not apply or begin to run until the application of that measure of general application - the GTS - is crystallised in respect of Mr Foran by a particular final decision affecting him. For that purpose, the particular final decision in respect of which he has standing to seek judicial review is the Board's s.51 approval of the Scheme as published on 16 October 2024.

 

 

24.               North East Pylon [13] is authority that

 

·         where the invalidity of the measure of general application is relied on as a ground to ultimately invalidate a particular final decision,

 

·         and if s.50 PDA 2000 applies an 8-week time limit to seeking leave to seek judicial review of that particular final decision,

 

·         then the 8-week time limit from that particular final decision likewise applies to seeking leave to seek judicial review of the measure of general application - here, the GTS.

 

 

25.               Mr Foran has given as his specific reason for now seeking, 9 years after its publication, to quash the GTS that he anticipates that the Respondents will rely on the GTS in resisting his challenge to the Impugned Decision of the Board. In reaction to that anticipation he seeks to quash the GTS as a step towards quashing the Roads Act approval. Accordingly, in my view, this is a case to which the principle stated in §201 of North East Pylon applies and the time limit within which s.50 PDA 2000 required a leave application in respect of the GTS was eight weeks from the publication of the impugned Roads Act approval decision on 16 October 2024.

 

 

26.               That 8-week period expired on 11 December 2024. Assuming in his favour and without so finding that Mr Foran's circulation of the draft Statement of Grounds on 15 December 2024 stopped time running against him, he was nonetheless out of time - too late by reference to the 8-week time limit set by s.50 PDA 2000. It is clear that the time limit is strict. Even a day late is too late - Save The South Leinster Way. [14]

 

 

27.               As to Mr Foran's invocation of the primacy of EU law, I observe that time limits for commencement of judicial review of impugned decisions based on or challenged by reference to principles EU law have been held to comply with the EU Law effective remedy principles of equivalence and effectiveness - see for example Carrownagowan . [15]

 

 

 

Extension of Time?

 

28.               The Council and the NTA declined to take a point that Mr Foran had not formally applied for an extension of time.

 

 

 

S.50(8) PDA

 

"50.— (8)            The High Court may extend the period provided ... within which an application for leave ... may be made but shall only do so if it is satisfied that—

(a)          there is good and sufficient reason for doing so, and

(b)          the circumstances that resulted in the failure to make the application for leave

within the period so provided were outside the control of the applicant for the extension."

 

 

29.               Mr Foran clearly bears the onus of persuading the court that time should be extended in his favour -. of explaining and objectively justifying his failure to make in time the application to quash the GTS - Kenny [16] and Donnelly. [17] Notably Mr Foran had in July 2023 made, in the Roads Act process before the Board, submissions noting the reliance of the Council on the GTS and in which he was highly critical of both its content and the circumstances of its adoption. Notably also, the TEN-T Regulations of 2024 [18] on which Mr Foran relies to impugn the GTS were published on 28 June 2024 - just days less than two months before the impugned Roads Act decision of the Board. And he had a further eight weeks after that decision to seek leave to seek to quash the GTS.  As Mr Foran accepts, his explanation is set out only in his written submissions. I will overlook in his favour the fact that it is not set out on affidavit. It reads as follows:

 

"The Notice Parties observe correctly the applicant's failure to provide an explanation for why the challenge to the GTS was not made sooner. The applicant regrets this omission and will undertake to submit an additional affidavit if needed. [19] The explanation is that this is a very large scheme affecting numerous roads around the city. Having successfully filed on time, the applicant felt the need to ensure the facts in the grounding affidavit were complete and correctly reflected the numerous problems that can be seen with the scheme. The Statement of Grounds also needed work to reflect feedback from the court and to correctly reflect the relevant Climate Action Plans.

 

A question that had been unresolved was what version of the TEN-T regulations applied and when had this come into effect? It was only while (eventually) reviewing the TEN-T regulations that the applicant realised that the same arguments in relation to the legality of the Cross City Link proposals also apply to the Galway Transport Strategy. The Cross City Link proposals are in opposition to purposes of the TEN-T regulations and arguably by that fact unlawful. If the source of the problematic elements of Cross City Link is the Galway Transport Strategy then it also follows that the TEN-T regulations create a difficulty for the GTS.

30.               Inasmuch as Mr Foran has given, as I have said, as his specific reason for now seeking to quash the GTS that he anticipates that the Respondents will rely on the GTS in resisting his challenge to the Impugned Decision of the Board, I should say that this proceeds from his own assessment of the case rather than from any formal reaction to it by the Respondents and the Notice Parties. No doubt it also proceeds from his membership between 2019 and 2024 of the Galway City Council Strategic Policy Committee on Transport which, no doubt and as Mr O'Riordan of the Council avers, repeatedly exposed him to the GTS and the steps taken to effect it. His submissions to the Board in the Roads Act process had also criticised the GTS as informing that process.

 

 

31.               All that being so and while one can have a certain sympathy with a lay litigant embarking on what are, on any view, daunting proceedings which I accept proceed from a genuine impulse on his part, Mr Foran gives no legally satisfactory explanation for not having come earlier to the realisation that from his point of view he needed to seek to quash the GTS.

 

 

32.               I cannot see that his explanation points at all to circumstances outside Mr Foran's control as the cause of his failing to make his application for leave to quash the GTS in time. Accordingly, I cannot be satisfied in that regard in the terms required by s.50(8) PDA 2000 and I have no jurisdiction to extend time in Mr Foran's favour.

 

 

 

Interests of Justice/Good & Sufficient Reason to Extend Time

 

33.               I should add that I do not consider that the interests of justice favour the amendment of the Statement of Grounds to seek to quash the GTS. Nor do I see that there is good and sufficient reason to extend time. These issues are to be considered on a holistic appreciation of the circumstances of the case - Marshall. [20]

 

 

34.               Even though the GTS is a non-statutory document, its adoption in 2016 was preceded by Strategic Environmental Assessment, Appropriate Assessment (under the Habitats Directive) and Strategic Flood Risk Assessment. Mr Foran (sub nom Galway Cycling Campaign) made a detailed submission in the consultation process which preceded its adoption. Even viewing it as a non-statutory but justiciable measure of general application and given the liberal standing rules in Irish law in favour of the standing and sufficiency of interest of those who have participated by making submissions in processes leading to impugned decisions (see Grace & Sweetman^[21] - "it is important to emphasise that participation in the process will undoubtedly confer standing."), I consider that, whatever the application or non-application of time limits to seeking judicial review of the GTS considered as a measure of general application, Mr Foran would have had standing to seek leave to quash the GTS on its adoption in 2016. But he did not. In that context I note the observation by Fennelly J in De Roiste [22] that "Explicable delays have usually been a matter of months and very rarely years." In referring to that observation I am not suggesting that time formally ran from 2016 against Mr Foran (though I do not rule out that possibility). Rather, I refer to it as illuminating the circumstances relevant to extension of the 8-week period which, making various assumptions in Mr Foran's favour, I have held nonetheless applied. I also bear in mind that Mr Foran now seeks to impugn the GTS on a basis of supervening illegality brought about by the 2024 TEN-T Regulations - a case he could not have made before their adoption.

 

 

35.               Nonetheless, from 2016, as we know, the GTS has significantly informed both planning policy and action as to transport strategy in Galway for almost a decade. It has been incorporated in multiple development plans, including the present development plans, and in the present RSES. Mr Foran made submissions as to, at least, the adoption of the City Development Plan (2023-2029) and so had standing to seek judicial review of it within the 8-week time limit applicable on the authority of Jones. [23] But he did not.

 

 

36.               About €44 million has been spent on or is committed to carrying the GTS into effect. The averment that numerous pending projects would be cast into doubt by proceedings against the GTS is uncontroverted.

 

 

37.               Time limits in judicial review are not ends in themselves: their purpose is to foster legal certainty and public confidence in and capacity to rely on public law decisions and to plan and act accordingly. I am conscious that judicial review is a flexible remedy and, for example, can, if perhaps exceptionally, grant relief with prospective effect only. [24] The fact remains however that Mr Foran could have moved in 2016 and likely had further opportunities thereafter - not least as to the adoption of the current city development plan. And in the nine years since 2016, the public (not least in repeated statutory consultation processes) and the public authorities have planned and acted in appreciable reliance on the GTS and intend to continue to do so. I consider that extending time in favour of Mr Foran would, viewed holistically, considerably and irremediably prejudice the public and public authorities by, at very least, casting into doubt for an appreciable period the transport strategy which has informed public affairs, plans and actions in Galway for many years.

 

 

38.               In Marshall, [25] and as a matter distinct from the arguability criterion applicable in amendment applications, Humphreys J listed a large number of factors to be considered as part of the holistic overview of all relevant circumstances where the court is considering an extension of time. They included "the merits of the case". Without deciding the arguability of the case, it appears to me that I am entitled to lend weight to its weakness.

 

 

39.               Now, Mr Foran's case against the GTS is grounded in the TEN-T Regulations of 2024. [26] I am satisfied on the evidence before me that the Scheme is not an element of the trans-European transport network which both is the subject matter of the TEN-T Regulation as identified by Article 1 thereof and comprises the scope of that regulation as identified in Article 2. Article 2 states "This Regulation applies to the trans-European transport network as specified in the maps set out in Annex I and in the lists in Annex II." Nor is the Scheme a "project of common interest" within the meaning of the Regulation - that is to say a "project carried out pursuant to this Regulation". In the end, I did not understand Mr Foran to disagree with these propositions.

40.               Rather he invoked the fact that Galway is an "Urban Node" within the meaning of the Regulation and that a function of urban nodes is to provide links between elements of the network such as to facilitate multimodal transport - which, he says the Scheme fails to do or fails adequately to do as relates to links for cyclists between elements of the network. Reading the Regulation as a whole and in particular Recital 63 and Articles 41 and 42 together, I note that Recital 63 states that

 

"Urban nodes play an important role on the trans-European transport network as starting point or final destination ('last mile') for passengers and freight moving on the trans–European transport network and are points of transfer within or between different transport modes. It should be ensured that capacity bottlenecks and an insufficient network connectivity within urban nodes no longer hamper multimodality along the trans-European transport network. The trans-European transport network policy should focus on promoting seamless traffic flows from, to and across urban nodes on the network. The local connectivity within urban nodes should be addressed by the competent local, regional or national authorities, in particular through relevant measures of their sustainable urban mobility plans (SUMPs)."

 

 

41.               Article 41 as to urban node requirements does require that

 

"When developing the trans-European transport network in urban nodes, in order to ensure the effective functioning of the entire network without bottlenecks, Member States shall ensure:

 

"the adoption and monitoring of a sustainable urban mobility plan (SUMP) for each urban node that includes inter alia measures to integrate the different modes of transport and shift towards sustainable mobility, to promote efficient zero and low emission mobility including urban logistics, to reduce air and noise pollution and where appropriate, to assess the user's accessibility to transport;"

 

 

42.               It is clearly via SUMPS that the aims of the Regulation on which Mr Foran relies as impugning the legality of the GTS are to be realised. But the GTS is not a SUMP - it would be highly anachronistic to so describe it. Nor, in fairness, did Mr Foran so describe it. The difficulty for Mr Foran in this regard is that, by Article 41, the obligation to adopt SUMPs does not bite until 31 December 2027. He cannot call it in aid now.

 

 

43.               I should acknowledge that in the particulars of his further amended Grounds Mr Foran cited many other elements of the TEN-T Regulations. However, his further amended Grounds did not articulate, and Mr Foran was unable orally to articulate, how those other elements had the effect of rendering the GTS illegal.

 

 

44.               Ultimately I consider that, while I do not discount in principle the possibility of supervening illegality, Mr Foran's case against the GTS in reliance on the TEN-T Regulation 2024 is weak at best.

 

 

45.               Accordingly, and on a holistic view of the circumstances, I do not find good and sufficient reason within the meaning of s.50(8) PDA 2000 to extend time - nor do I find that the interests of justice require that I do so.

 

 

 

RESULT

 

46.               In the result, for failure to meet the applicable time limit within which to seek judicial review of the GTS and declining to extend time in that regard, I refuse Mr Foran leave to seek judicial review of the GTS. I do not consider it necessary to decide the other issues canvassed.

 

 

47.               The dispute decided in the present ruling was decided in the application for leave. The Respondents and the Notice Parties were on notice in the leave application and did not oppose leave save as to the challenge to the GTS. I have decided that issue in their favour. However, these are complex proceeding in which, as Mr Foran points out, the GTS will yet have a part to play - if only as part of the basis on which the Respondents and the Notice Parties will mount their opposition. In that context, I consider that the trial judge is likely to be better placed to determine the costs issues as they relate to the entire leave application. My provisional view is that I should reserve all costs to the trial.

 

 

David Holland

25/3/25