Kelly v An Comisiun Pleanala (Approved)

Factual and Procedural Background

The Applicant challenged the approval by the Respondent on 8 January 2024 of a road development approving construction of a bus corridor scheme (ref. ABP-313182-22). The Applicant is affected because the approved Scheme locates a new bus stop directly outside her cottage, which opens onto the public footpath without a front garden or intervening barrier. The bus stop forms part of a larger corridor scheme intended to serve multiple routes, with potentially high frequency operation. There were three rounds of public participation before the application under section 51 of the Roads Act 1993; the Applicant made submissions to the Respondent and a second, more detailed submission which the Company A did not have an opportunity to reply to. An Inspector reported and the Respondent approved the Scheme without modification. The Applicant obtained partial leave for judicial review; a further amended Statement of Grounds was delivered. The judgment was delivered by Judge Farrell on 23 September 2025.

Legal Issues Presented

1. Whether the decision constituted a disproportionate interference with the Applicant's right to quiet enjoyment of property pursuant to Articles 40.3 and 43 of the Constitution (Core Ground 2).
2. Whether the Respondent provided adequate reasons in relation to the impact on the Applicant's rights arising from the bus stop located outside her property (Core Ground 3).
3. Whether the Section 51 approval constituted a disproportionate impact on the Applicant in breach of constitutional rights (Core Ground 4).

Arguments of the Parties

Applicant's Arguments

• The proposed bus stop will be directly outside her dwelling, causing a significant and ongoing intrusion on privacy, safety and enjoyment of the home, including inability to open windows and risk from congregating passengers (including late-night disturbance).
• The Applicant sought the Respondent to omit the bus stop at that location and suggested alternative existing stops at adjacent locations should be retained.
• The Applicant did not challenge the Scheme as a whole but challenged the specific placement and the Respondent's consideration and reasons regarding that placement.

Respondent and Company A's Arguments

• The placement was determined by Company A's Bus Stop Review Methodology and was presented as the optimal location for operational efficiency and scheme objectives.
• The Inspector and Respondent treated the Applicant's concerns as matters of potential annoyance and concluded they did not warrant refusal or modification of the Scheme.
• There was reliance on the procedural history and the Methodology; Company A was not a target of relief as a notice party.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court assessed the facts: the Applicant's cottage opens directly onto the footpath, the Scheme locates a bus stop there, Company A's Methodology guided placement, and the Applicant raised detailed privacy and safety objections in submissions, including a July 2023 submission that Company A did not have opportunity to reply to. The Inspector characterised those concerns as "potential annoyance" and the Respondent approved the Scheme without modification.

The Court analysed legal obligations on reasons (Connelly, Balz) and held that if a submission is misunderstood or mischaracterised, it cannot be properly rejected; inadequate reasons follow. The Methodology’s criteria (visibility, proximity to facilities, footway width, etc.) were considered, but the Methodology did not address privacy/security issues raised by the Applicant. The Court found no evidence that the Respondent or Company A weighed the feasibility or benefit of relocating the bus stop to mitigate the Applicant's specific concerns. The Inspector's statements that Company A could not resolve certain behaviours were assessed as incorrect in principle because relocation could address congregating and windowsill issues.

On pleading, the Court accepted that constitutional protections for the dwelling (Article 40.5) were engaged by the Applicant's submissions by necessary implication and could be considered. The Court concluded the Respondent mischaracterised the Applicant's serious privacy and security concerns as mere annoyance and thus provided legally defective reasons for rejecting them.

Holding and Implications

CORE RULING: The Court upheld sub-ground 5(e) and Core Ground 3 and found that the Respondent's reasons were legally inadequate and that the Applicant's concerns were mischaracterised.

Implications: The Court provisionally ordered certiorari quashing that part of the Respondent's 8 January 2024 approval (ABP-313182-22) insofar as it provides for any works (including erection of a bus stop) at the row of cottages which includes the Applicant's dwelling. The Court invited further submissions from the parties on the exact form of the order and listed the matter for further hearing to consider consequential orders. No broader new precedent was stated; the direct effect is to unsettle the approval insofar as it affects the Applicant's row of cottages and to require further proceedings to determine precise remedial orders.