High Court Action Over Toll Crux |
"Evidence given at the oral hearing into the Compulsory Purchase Order and Environmental Impact Statement in relation to the Bypass should have been put before the Draft Toll Scheme hearing" |
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News and Star Friday November 16th 2001 By Aileen Mulhall A HIGH Court action seeking a judicial review of the proceedings of the public inquiry into the Draft Toll Scheme for the Waterford Bypass is being taken by the farmer on whose land it’s proposed to locate the toll bridge for the Bypass. Legal representatives for Jarlath Phelan, of Riverside, Lower Gracedieu, made an application for the judicial review of the proceedings of the oral hearing into the Draft Toll Scheme in the High Court in Dublin last Friday. The application was made just two days after the oral hearing’s proceedings closed last Wednesday. Mr. Phelan’s solicitor Frank Hutchinson said the High Court application for the Judicial Review was made on the basis that evidence given at the oral hearing into the Compulsory Purchase Order and Environmental Impact Statement in relation to the Bypass should have been put before the Draft Toll Scheme hearing. The application was adjourned to the High Court yesterday (Tuesday) where it came before Justice Peter Kelly, who again adjourned the matter to tomorrow’s (Thursday) sitting of the Court to allow discussions take place between the Phelan family, the National Roads Authority and Waterford Corporation. At last Wednesday’s sitting of the oral hearing into the Draft Toll Scheme, barrister Brendan Kielty, acting for Mr Phelan and his wife, gave notice that he would be applying to the High Court for a judicial review of the proceedings after his request for the hearing to be adjourned was refused by the Inspector Kevin O’Sullivan. Mr Kielty told the oral hearing that the Phelans had farmed in Gracedieu for 300 years and were landowners most directly effected by the scheme. It was proposed to erect a bridge at one end of the farm, which was to be divided by th e motorway. It was also planned to erect the toll plaza in the middle of the farm, he said. “At the CPO hearing when issues about the design of the toll plaza, which is going to be a matter of yards from my clients house and which they have a legitimate interest in finding out how big or broad it is, were raised, we were told by Waterford Co. Council that matters relating to the design of the toll plaza were not for that inquiry but the toll inquiry. Addressing the hearing’s inspector he said: “We raised this before at the toll inquiry, but you have moved that matters of design are not for this inquiry. hat puts me in an invidious position. I find myself excluded from making representations about design at either oral hearing.” Mr Kielty said he found himself in a position where he couldn’t cross-examine witnesses of the NRA in the absences of transcripts from the CPO oral hearing, which they had requested but had not received. And as the Inspector had ruled that the matters of physical design of the toll plaza were not for the hearing one could conclude that even if the transcripts were admitted it would be disrupted by the Inspector having regard to this ruling. Arising from this, Mr Kielty said he had no alternative but to formally request that the hearing be adjourned to allow Waterford Co. Council to attend and introduce the transcripts into evidence so that they could cross examine in relation to them. In the absence of an adjournment, he was instructed to apply to the High Court on Friday for a judicial review in relation to the production of the transcript. The Inspector, Kevin O’Sullivan, replied that he didn’t see any need for an adjournment on that issue and wouldn’t adjourn. He asked Mr. Kielty if he wished to give any evidence in relation to matters relating to the toll scheme. Mr Kielty replied that he did wish to give evidence but he felt he couldn’t adequately do it in the absence of a transcript and other documents. “It would be invidious to undertake a half-baked presentation and evidence and half-baked cross examination. I want to confirm that yes I do wish to give evidence but I am denied fair procedure and therefore can’t give the evidence at this point.” Mr. Flanagan, Senior Counsel for the National Roads Authority, told the hearing that certain queries were raised by Mr. Kielty’s solicitor in relation to issues of the transcripts. He said the oral hearing into the CPO and EIS was conducted by An Bord Pleanala and was not under his remit. He was instructed that requests for the transcript should and ought to have been forwarded to An Bord Pleanala. He understood it would be available. He pointed out that if the transcript or the CPO were available it would not be either necessary or relevant for the purpose of this inquiry. (See Page 4 for comprehensive coverage of the Draft Toll Scheme inquiry). Copyright © Waterford News and Star |