The Supreme Court yesterday overturned a High Court order which would have had major repercussions for local authorities' duty to repair roads.
By a 4/1 majority, the Supreme Court upheld a challenge by Cavan County Council to the High Court order directing it to repair a six-mile stretch of potholed road.
Some 34 local people who live near the road had taken the action against the council. The case was brought with the backing of Cavan Road Action Group as a test case in a campaign to have the county's roads repaired. CRAG chairman Mr Pat Monaghan yesterday voiced disappointment with the Supreme Court decision.
If the High Court decision had stood, it would have had serious repercussions for local authorities under pressure to put roads into a proper state.
The question of who pays the high costs of the action will be decided by the Supreme Court on Tuesday.
The road at the centre of the action - between Ashgrove and Staghall, Belturbet - was repaired last autumn.
Giving the majority judgment yesterday, Mr Justice Keane said the single issue in the appeal was whether the residents were entitled to an order directing the council to comply with its statutory duty. He was satisfied it was not a proper case to grant such an order. Unless there was coercive authority to the contrary, he would not be disposed to hold that the court should impose the rigours of such an order on a public authority where it was acknowledged it did not have the means to comply with the order and that its successful implementation depended on the co-operation of other bodies not before the court.
Mr Justice Keane said the evidence in the High Court had satisfied the judge there that the roads used by the residents to get to and from their houses had deteriorated through lack of repair and maintenance to such an extent that they were, at the time of the hearing, dangerous to vehicles.
That the High Court judge was entitled to so find was not disputed on behalf of the council or on behalf of the Attorney General - who was heard by the Supreme Court because the case involved issues of public concern.
Cavan county engineer Mr John Tiernan had stated there were approximately 1,350 county roads in Co Cavan, in addition to regional and national roads. Approximately 600 of them were deemed at that time to be in very poor or critical condition. The cost of bringing these roads to a satisfactory condition would be £40 million.
Mr Tiernan said that the roads in the area, because of weak soil conditions, increased axle loading and under-funding, were the weakest link in the chain of the road network in the State.
The county engineer had recommended an eight-year recovery programme requiring £9.6 million per annum. Based on current finances and applying the most optimistic projections, it would take 22 years before the entire road network in Co Cavan could be brought into satisfactory condition, he added. Funds available to the council represented 53 per cent of the amount required to implement the programme.
Mr Justice Keane said the council had never suggested it would defy any order the courts might make. It rested its opposition to the making of the order on an entirely different ground.
The council had argued that, given its relatively small rating base and the failure of central government to advance sufficient grant aid, the only way to fulfil its statutory duty was by tackling the repair programme over a period of years and endeavouring to apply what resources it had in a rational and systematic order.
Mr Justice Keane said he was satisfied that while the order sought was a discretionary remedy, the High Court judge erred in principle in the manner in which she exercised that discretion, having regard to the futility of granting the order where the council had not the means to carry out its undoubted statutory duty.
The judge said the position remained that a person who suffered injury by reason of failure of a county council to carry out its statutory duty to repair a road could not recover damages from the council.
The law would be in a remarkable and anomalous state if a person who suffered catastrophic injuries as a result of culpable neglect of the council in fulfilling its statutory duty, even in a case where it had appropriate resources, could not recover damages while a person who suffered no more than inconvenience in circumstances where the council's failure was due, not to neglect but lack of funds, was provided by law with a remedy in the form of the order sought.
In his minority judgment, Mr Justice Murphy said the High Court judge was correct in her judgment and order.