An Bord Pleanála

Inspector’s Report

Board Reference: 25.CH3138

Re: Westmeath County Council Compulsory Purchase (No. 8) (N52 Rathconnell to Macetown Realignment Scheme) Order 2010.

Location: Townland of Rathconnell.

Objectors: - Sean & Geraldine Glennon - John Daly - Kevin Doherty - Patrick Flanagan - Aidan & Dympna Price

Local Authority: Westmeath County Council

Date of Site Inspection: 29 th November 2010

Inspector: Michael Dillon

25.CH3138 An Bord Pleanala Page 1 of 23 1.0 NATURE AND SCOPE OF COMPULSORY PURCHASE ORDER

1.1 The Compulsory Purchase Order relates to the compulsory acquisition of lands at Rathconnell townland, , Co. Westmeath, by Westmeath County Council. It is stated in the Schedule to the Order that the lands consist of land other than land consisting of a house or houses unfit for human habitation and not capable of being rendered fit for human habitation at reasonable expense. The area of the site extends to some 8.7556ha – much of which is contained within the existing N52 road alignment. The owners/lessees/occupants or reputed owners are listed in Part I of the Notice. It is stated in the Order that the local authority are authorised to acquire compulsorily the lands for the purposes of the construction of the realigned road. Part II of the Order refers to the extinguishments of rights-of-way – 5 in total. The Manager’s Order for the CPO is dated 9 th July 2010.

1.2 The CPO is made arising from of the passing, by the elected representatives of Westmeath County Council, of the N52 Rathconnell to Macetown Realignment Scheme under Part 8 of the Planning and Development Regulations 2001, as amended. The Scheme was adopted by the elected representatives, on 21 st June 2010. A total of two submissions were considered before adopting the scheme.

2.0 OBJECTION TO COMPULSORY PURCHASE ORDER

There were five objections to the Compulsory Purchase Order.

2.1 The objection from Peter D. Jones & Co. Solicitors, agent on behalf of Sean & Geraldine Glennon, received by the Board on 13 th August 2010 can be summarised in bullet point format as follows- • The Glennon lands affected by the CPO are plots 126a.1, 126b.1, 126c.1, 126d.1 and 126e.1 • The realignment is being carried out in a piecemeal fashion. Poor design of an earlier section of the road is causing danger to the public and results in the occupation of the residence of Sean & Geraldine Glennon becoming untenable. • The design of the new section of the N52 exaggerates the difficulties of the Glennons – sightlines being inadequate. Access to the Glennon property is unattainable when traffic is entering/exiting the filling station – opposite the objectors’ property. • There is very poor access from the Shancragh Road opposite the Glennon property. • The house is located only 6m from the road and suffers continuous disturbance from traffic. • Additional land is to be taken from the Glennon farm on either side of the new realignment. • If the current realignment goes ahead, the Glennons will have to vacate their home. It is only a matter of time before a serious accident occurs.

25.CH3138 An Bord Pleanala Page 2 of 23 • In the ordinary course of events it might be argued that it is unreasonable to object to a section of road that has already been realigned. However, it is the contention of the objectors that the proposed realignment will compound a previously unsatisfactory road design and will contribute to traffic hazard. • Trucks continue to park outside the Glennon house in order to access the filling station on the opposite side of the road – notwithstanding that there is no hard shoulder on the road. • The field to the north of the proposed bunded area will require a properly designed drainage – something which the scheme does not provide for. • Clarity is required in relation to proposed boundaries. Concrete post and rail fencing should be used in place of the timber fencing proposed by the Council. • Clarity is required in relation to working wayleaves. • There will be greater run-off from the new road onto the Glennon property than occurs at present. • Cattle pens and holding areas which are to be removed should be replaced. Hedgerows should also be reinstated.

2.1.1 The objection is accompanied by the following- • Letter of objection to Westmeath County Council – dated 10 th June 2010. • Report of Martin McCormack & Associates – engineer retained by objectors – dated 3 rd April 2010. • Letter to Westmeath County Council of 18 th May 2010 – forwarding report of Martin McCormack & Associates. • Acknowledgement letter from Westmeath County Council – dated 26 th May 2010.

2.2 The objection of John Daly, received by the Board on 10 th August 2010, can be summarised in bullet point format as follows- • The objector resides at parcel of land ref. 114a.1. • Traffic descending from the new proposed slip road off the N52 will have a clear view of the front of the Daly dwelling – removing the privacy currently enjoyed by the objector. Vehicle lights will shine directly in through the windows of the objector’s house. • The substantial grass verge in front of the objector’s house is to be removed to facilitate the development. This will impact negatively on a mature ash tree growing at the entrance to the objector’s house. • Descending vehicles from the N52 will result in an accident hot-spot in front of the objector’s house. A substantial stone wall should be erected in front of the objector’s house to prevent vehicles crashing through it. • The objector’s ‘B&B’ sign should be moved to the top of the N52 / Pass slip road junction.

25.CH3138 An Bord Pleanala Page 3 of 23 2.3 The objection of David Walsh & Co. Solicitors, agent on behalf of Kevin Doherty, received by the Board on 3 rd September 2010, can be summarised in bullet point format as follows- • The objector owns lands referenced 109a.1, 109b.1, 109c.1, 109d.1 and 109e.1. The objection relates to parcel 109d.1. • The Council does not need to acquire any further lands from the objector in order to carry out the improvement works. • Oral undertakings in relation to the provision of tarmacadam and topsoil in relation to a previous CPO were not undertaken, and the objector has lost faith in the Council.

2.4 The objection from Patrick Flanagan, received by the Board on 3 rd September 2010, can be summarised in bullet point format as follows- • The objector owns plots referenced 116c.1 and 116d.1. • The proximity of the new road to the dwelling-house is distressing. There will be increased noise, dust, fumes and light pollution. • Dust created during construction will create a nuisance for the objector. • Lights from northbound traffic will shine into the kitchen/living area of the house. • The objector is unaware of what walls, fencing or tree planting will be undertaken by the Council to mitigate the nuisance. • The raising of the height of the road will give rise to surface water drainage concerns. • The road may affect the right to light of the objector. • It is understood that a new access to the objector’s house is proposed – but it is not clear what form this will take.

2.5 The objection from Gaynor Corr & Associates Ltd., agent on behalf of Aidan & Dympna Price, received by the Board on 7th September 2010, can be summarised in bullet point format as follows- • The objectors own reference plots 117a.1, 117b.1, and 117c.1 • The front garden of the objectors’ house is small. It is well screened from the road by a mature hedge. It is proposed to remove this hedge and relocate the boundary closer to the house – in order to provide an access track [117b.1]. This track could easily be accommodated outside the existing boundary hedge. • The design of the road and track will cause parking difficulties. The Council has not indicated how it intends to control parking, anti-social behaviour and misuse of the area outside their boundary wall. • The objectors have security and privacy concerns in relation to the proposed land-take.

3.0 SITE INSPECTION AND DESCRIPTION

3.1 The lands, the subject of the Compulsory Purchase Order, are located in the townland of Rathconnell, some 3km due northeast of the town of Mullingar in

25.CH3138 An Bord Pleanala Page 4 of 23 . The site comprises a roughly 1.5km section of the N52 National Secondary Route and adjoining lands – including three junctions with county roads L-17211, L-1721 & L-17212. The N52 links Mullingar with Delvin. The N52 immediately to the southwest of the proposed scheme has recently been realigned. The section of the N52 to the northeast of the site has also recently been realigned. A portion of the N52 as it comprises this scheme (at the southwestern end) has been realigned in the past. The 80kph speed restriction applies in this area. There are no hard shoulders on the road – other than small sections on either side of the junction with the L-1721 county road. The central median marking on the N52 varies from unbroken white line to broken white line and a combination of both. There is no public lighting other than a small single lampstand at the junction of the N52/L-17211 and the N52/L-1721. There are no public footpaths in the area.

3.2 The junction with the L-17211 is a simple priority junction. The road is a short cul de sac serving ribbon development of housing on either side and as access to agricultural land. The level of the road is considerably below the level of the N52 at this point.

3.3 The L-1721 is a narrow county road serving ribbon development of housing and agricultural land The junction is roughly level with the N52 – after which the level of the road drops somewhat.

3.4 The L-17212 is a narrow, tarred, cul de sac laneway serving 3 no. houses and agricultural lands. There was an archaeological dig under way within the CPO lands (125b.1) at this location on the date of site inspection.

3.5 There was a second archaeological dig under way on CPO lands 126d.1 on the date of site inspection. The level of this land is below the level of the existing N52. There is a petrol filling station on the north side of the N52 – immediately to the east of the proposed CPO lands. There is a right-turning lane in the centre of the N52 to facilitate traffic entering the filling station. There is a second right- turning lane in the centre of the N52 to facilitate traffic entering the Shancragh Lane (L-17213) immediately to the rear of the filling station. These right-turning lanes are outside of the proposed scheme lands. There were no cars parked on the roadside of the N52 in the immediate vicinity of the petrol filling station.

4.0 REPORT ON ORAL HEARING

4.1 General

An Oral Hearing was held on 6 th December 2010, in the Mullingar Park Hotel, Mullingar, Co. Westmeath. The hearing opened at 10.00am and closed at 3.25pm. A stenographer was present at the hearing, and a separate transcript of the proceedings is included on the file. All five objectors were present or represented at the Hearing. Representation on behalf of parties was as follows-

25.CH3138 An Bord Pleanala Page 5 of 23

Westmeath County Council Esmonde Keane, SC. Ambrose Clarke, Engineer. Terry McCague, Planner.

Objectors 1) Peter Jones, Solicitor for Sean & Geraldine Glennon. 1) Martin McCormack, Engineer for Sean & Geraldine Glennon. 1) Geraldine Glennon. 2) John Daly. 3) Kevin Doherty 4) Hugh Flanagan for Patrick Flanagan. 5) Jim Gaynor, Solicitor for Aidan & Dympna Price.

4.2 Submission of Westmeath County Council

Esmonde Keane for the Council opened with an explanation of the legislative context and a description of the CPO. A total of 2 no. items were presented to the hearing by Westmeath County Council – the Engineer’s brief of evidence and the brief of evidence of the Planning Officer.

4.2.1 The Engineer’s (Ambrose Clarke) brief of evidence (within a blue ring-binder folder) contains the following- • The background to the scheme and the need for it. • Description of the proposed scheme. This provides for a 7.3m wide carriageway with flanking 2.5m hard shoulders and minimum 3.0m verges. Where median turning lanes are included, the hard shoulders narrow to 0.5m. The design speed for the new section of road is 100kph. • Individual responses to the five objections. [These responses were not read into the record of the hearing. It was pointed out that each of the objectors had been given a copy of the response to their objection but that unless each objector wished the response to be made public, it would not be read out into the record]. • List of the 5 public rights-of-way to be extinguished. • Details of plots of land to be acquired. • A3 map showing line of the proposed road as per the Part 8 scheme. • OS Discovery Series Extract showing location of accidents on this stretch of road – 1991-2008. • Appropriate Assessment screening of the scheme carried out under Part 8 – including maps. • 10 no. colour photographs of the affected stretch of the N52. • Proposed amendment to Schedule of the CPO – to replace an existing name with a new name in the ‘Occupiers’ column in relation to plot 111a.1.

25.CH3138 An Bord Pleanala Page 6 of 23 4.2.2 The Planner’s (Terry McCague) brief of evidence set the proposed scheme in the context of national, regional and local planning policy. The brief went on to describe the Part 8 statutory consultation procedure which the Council had engaged in. The Part 8 process had included screening for Appropriate Assessment as required under Article 6(3) the Habitats Directive.

4.3 Questions from Objectors to Westmeath County Council

4.3.1 Points arising following questioning by Peter Jones (on behalf of Seán & Geraldine Glennon) to the Council- • The Council argued that most of the objections of the Glennons related to a previous improvement scheme on the N52 and were not relevant to the current CPO hearing – their house being outside of the current scheme lands – notwithstanding that they were landowners affected by the proposed scheme. The Inspector stated that he was satisfied to hear the objections on the grounds that the proposed scheme could exacerbate the nuisance being claimed by the objectors. • The speed limit outside the Glennons’ house on the N52 is currently 80kph. • Sightlines at the entrance to the Glennon house are substandard and in breach of the standards set down in the Design Manual for Roads and Bridges. • Existing markings on the road make it difficult to turn right into the property when approaching from Mullingar. • The Council stated that plans to remark the road in front of the Glennon house had been held up due to bad weather. • A right-turning lane is to be provided for the Glennon house. • It is the contention of the objector that the proposed upgrade will exacerbate nuisance outside their house which is located on a previously improved stretch of the N52 immediately to the east. • The house is only 6m from the carriageway of the N52. • The proposed scheme has been shoe-horned through Rathconnell. • There is no drainage on the N52 in front of the Glennon house and flooding has occurred in the past up to the front door and within the adjoining farmyard. There may be drainage planned within the new section of the N52, but there was none in the previously upgraded section of the N52 in front of the Glennon house. The reason that no drainage was put in the road is that there was not enough room. • The Council pointed out that noise would not increase – as the same amount of traffic would be using the road with the proposed scheme. The objector argued that the new scheme would allow for road speed to be increased from 80kph to 100kph in this area. The Council stated that there was no definitive answer as to whether the speed would be increased. It was pointed out that the scheme was designed for a 100kph limit. • A 0.5m hard shoulder is not adequate for pedestrians, according to objector.

25.CH3138 An Bord Pleanala Page 7 of 23 • The Glennon house was in place since 1914. • The Council stated that it was trying to deal with issues which had arisen in relation to the previously aligned stretch of the N52 on which the Glennons reside. • The Council should have compulsorily purchased the house as part of the previous road improvement scheme on the N52 instead to trying to subsequently mitigate the nuisance caused. • It was pointed out that the Council could provide for noise mitigation measures within the proposed scheme for one house, and yet could not provide noise mitigation measures for the Glennons. • The Council stated that agricultural entrances would be provided for, and for replacement cattle pens where such had to be removed for the new road.

4.3.2 Points arising following questioning by Hugh Flanagan to the Council- • As it appears that drainage on a previous scheme to the east was inadequate – the objector has no confidence that proper drainage will be undertaken for the proposed scheme. The Council stated that full road drainage would be carried out for the scheme. • Sightlines at the new junction to be provided to access the objector’s house will meet with required standards. • The new road will be elevated 0.5-1.0m above the level of the existing road in the vicinity of the Flanagan house.

4.3.3 Points arising following questioning by Jim Gaynor (on behalf of Aidan & Dympna Price) to the Council- • The new boundary of the road line would be within 1-3m from the Price house. • The new road itself will be removed further from the Price house. • The public path outside the boundary was causing concern to Prices. The Council stated that the path would be of the order of 1.2m wide and was included in the scheme to provide for a right-of-way to a now disused cemetery. It will be for pedestrian use only and cars will not be allowed to access it. The Prices are concerned that visitors to the cemetery will park on the road to their house and that the pathway will be used for antisocial activity. • The replacement wall or hedge in front of the house can be agreed with the Prices – at whatever height is needed. This can be carried out as part of the accommodation works. • The Council explained that part of the front garden of the Price house had to be acquired to provide for adequate forward visibility on the new N52 and to provide for adequate sight distance at the new junction of the old N52 with the new N52 – to the east of the Price property. • The Council explained that an anti-dazzle screen was to be provided to the east of their property and the gap in it would be wide enough only for pedestrians to the pathway.

25.CH3138 An Bord Pleanala Page 8 of 23 • The Prices complain that a new entrance is to be provided to their house – but that no provision is made to link the entrance to the driveway. The Council stated that this would obviously have to be carried out as part of the scheme – but that as it was not included within the CPO, the Council or its agents would not be entitled to enter the Price property without consent to construct the linking driveway across the lawn. This would be subject to agreement with the Prices, and carried out as part of the accommodation works. If the linking driveway was not provided, compensation would have to be paid to the Prices. • A filter drain will be provided along the road in front of the Price house. • The level of the new road will be similar to the existing road in front of the Price house. • The CPO should have been for the entire house – as the amenity of the dwelling has been destroyed by removal of part of the front garden. The distance from the front wall of the house to the hedge is 3-4m according to the Council – more like 10m according to the agent for the Prices. The Council had merely gone for the cheaper option in relation to this scheme. • Setting the road further away from the house would provide compensation for having to bring the road boundary closer to the house. • A minimum sight distance of 215m was required at the junction of the old N52 with the new N52, to the east of the Price house (at chainage 720m). In order to achieve this sight distance, part of the front garden of the Price house had to be acquired. • The Council stated it had tried to negotiate with the Prices. • It was claimed by the agent for the Prices that the house on the site could be demolished and set back within the site. • The design of the road scheme is inferior.

4.4 Objection of Seán & Geraldine Glennon

4.4.1 The engineer for the Glennons made the following submission- • Bunding and drainage for agricultural lands were inadequate. There was an existing drain along the N52 which did not appear to be replaced in the new scheme. • Timber post & rail fencing has a lifespan of only 7 years. No specific details of fencing have been indicated. A concrete post and rail fence should be used. • No reference has been made to maintenance of boundaries and drains. • Reinstatement details ‘post construction’ are lacking. A site does not have to be a Natura 2000 site for impacts from reinstatement details to be outlined. • The sight distance at the Glennon house is only 50-60m at present – where 230m would be the norm. • New houses would generally have to be set back by 24m from a main road.

25.CH3138 An Bord Pleanala Page 9 of 23 • The existing N52 in front of the Glennon house is 1 foot above the level of the house and water from the N52 is flooding the property. • The road scheme was stopped short of the filling station on the opposite side of the road because it would have been too expensive to acquire part of this commercial property. • The current scheme had nothing in its design to mitigate the disamenity currently suffered by the Glennons. • In order for sight distance at the entrance to the house to be properly improved, the road boundary would have to be brought within 3m of the house.

4.4.2 The submission of Geraldine Glennon on behalf of herself and her father can be summarised as follows- • The new scheme will result in an exaggeration of the existing problems being experienced by the Glennons in relation to the N52. • Sightlines at the entrance are inadequate. Right-turning traffic coming from Mullingar and trying to enter the Glennon property often results in cars coming bumper-to-bumper with right-turning traffic trying to enter the filling station. • Residents of the house often choose to pass the house and perform a U- turn in order to be able to enter the gate using a left-hand turn. • Flooding has been experienced right up to the front door and within the farmyard. • There is vibration within the house when heavy traffic passes. • Trucks park in front of the house in order that drivers can walk across the road to the filling station. The parked trucks further exacerbate sight distance problems. • The residents are hoping that some of the remedial works proposed by the Council will improve the situation.

4.4.3 Points arising from Westmeath County Council questioning of objector- • Sight distance is 50m towards Delvin at the Glennon gates. The scheme will not have any impact on this sight distance. The scheme will not aggravate the sight distance towards Mullingar. It was argued that parked trucks blocked the sight distance towards Mullingar. The Council has agreed to remove the ghost island for the filling station and to remark the road in the vicinity of the Glennon house. • The Glennons received a settlement from the Council in 2009 in relation to disamenity they suffered arising from the realignment of the N52 in front of their house – and the design of that scheme. The Council had agreed to demolish and reconstruct the wall to the right of the entrance gates in order to improve sight distance towards Delvin – but the owners would not permit it to carry out this work. It was a surprise to the Council that the objectors were objecting to the new scheme. It was countered by the objectors that notice of the new CPO arrived during negotiations in relation to disturbance arising from previous road improvement scheme

25.CH3138 An Bord Pleanala Page 10 of 23 outside their house – leading to concerns in relation to possible further disamenity. • The Council pointed out that an interceptor drain would be excavated to the north of the bund within the Glennon lands, and would link with an existing stream to the west. • The Council pointed out that boundary fencing along the N52 would be maintained by the local authority. Timber post and rail fencing is standard along National Primary and National Secondary Routes. • A discussion ensued in relation to what boundary treatments currently existed along the N52 with the Glennon lands. If the standard of timber post and rail fencing proved to be a disimprovement, then this could be settled at arbitration. • The Council stated that the proposed scheme ties in with the previous one where it terminated. The boundary of the scheme (as proposed) is not in any way related to the position of the filling station.

4.5 Objection of John Daly

4.5.1 The issues raised can be summarised as follows- • The objector resides in a house on road L-1721 and owns plot ref. 114a.1. • Lights from traffic descending the new slip road in front of his house will shine in through his living-room windows. • A safety barrier will be required in front of his house to prevent out-of- control traffic from crashing into his front garden where, at times, his grandchildren play. • The Council permitted the objector to erect a finger post B&B sign at the junction of the N52 and the L-1721 some 36 years ago. The objector is concerned that he will have to reapply for permission for the sign, and does not see why he should have to.

4.5.2 Points arising from Westmeath County Council questioning of objector- • The objector has not operated his B&B for the past 2-3 years. • The objector’s house is located some 4.8m above the level of the road. • Glare from headlights would be pointed downhill on the new link road and not at the objector’s house above the level of the road. • Cars would not be able to gather sufficient speed between the N52 junction and the objector’s hedge to cause any significant danger/damage. • The Council would have no difficulty with relocating the fingerpost sign – but it would require a yearly Licence – which the objector would have to pay. This was not satisfactory to the objector who had the permission of the Council for the existing sign. The Council argued that this issue could be dealt with during accommodation works and compensation. The objector stated that a number of B&B signs had been relocated by the Council where road works were carried out.

25.CH3138 An Bord Pleanala Page 11 of 23 4.6 Objection of Kevin Doherty

4.6.1 The issues raised can be summarised as follows- • The objector is the owner of plot 109d.1. • The objector is concerned that the loss of this property is the loss of a potential house site. • The objector has had problems with the Council in relation to previous CPO issues and tarring of part of the road in front of his house.

4.6.2 The Council had no questions to put to the objector.

4.7 Objection of Patrick Flanagan

4.7.1 The issues raised by Hugh Flanagan, on behalf of the Patrick Flanagan, can be summarised as follows- • The house is currently some 45m from the existing N52. It will be only 15m from the new N52. • The objector is not against the principle of the realignment, as there is an alternative option available. • The level of the new road is higher than the old one and with the swing in the road – traffic lights of vehicles travelling in the direction of Delvin would shine directly in through the gable windows of the house. • Noise will increase with the road being brought closer to the house. • The level of the N52 is already 2m above the level of the adjoining field. If the new road were to be 0.5-1.0m higher, this, together with any noise barrier would result in a feeling of enclosure from within the house. • Timber noise barriers eventually decay, and there is no indication of who will be responsible for their replacement.

4.7.2 Points arising from Westmeath County Council questioning of objector- • Noise barrier to be erected will also remove glare from headlights. • Objector pointed out that lights on the top of truck rigs would still shine over any fence and illuminate the rooms of the house. • Roadside planting will help to mitigate impact of lights.

4.8 Objection of Aidan & Dympna Price

4.8.1 The issues raised by Jim Gaynor can be summarised as follows- • The most severe impact of the entire scheme is on the Price house. • The Council were asked to reconsider the acquiring of the front garden of the house. • Sight lines of 200m would appear to be available without acquiring the front garden. • The objectors would be willing to have a new house provided for them further back in their site.

25.CH3138 An Bord Pleanala Page 12 of 23 • If the boundary fence in front of the house is left low, then there will be a noise and privacy problem. If the boundary is put high, then the front bedroom of the house will appear like a prison. • The new entrance arrangements to the Price site are incomplete – there being no link between the existing driveway and the proposed new entrance. • The entire property should be compulsorily acquired by the Council. The current proposal is a cheap option which will see the amenity of the occupants severely reduced.

4.8.2 Points arising from Westmeath County Council questioning of objector- • Suggested that the road was being shoe-horned between the Price and Daly houses. • The objector maintains that a 200m sightline would still be available if the front garden of the house was left out of the CPO. The Council maintained that the bare amount was taken in order to provide the necessary 215m sightline and forward visibility on the N52. • The agent for the objector countered that the standard of living enjoyed by the Prices would be ruined. • The Council pointed out that the carriageway of the main road would be moved further away from the house. Only a public right-of-way footpath would replace the road in front of the Price house. • It was acknowledged that the hedge in front of the house was high at present. • The Council stated that a railing could be put on top of any front garden boundary wall to prevent persons sitting on it and giving rise to anti-social behaviour. • Usage of the public footpath is anticipated to be low, as there are no burials allowed in the cemetery to which it leads.

4.9 Concluding Remarks

4.9.1 Peter Jones on behalf of Seán & Geraldine Glennon

The N52 serves a wider catchment, as admitted by the local authority: yet for the purposes of this scheme, the local authority seems to be trying to behave as if nothing existed on either side of the scheme. The improvement scheme carried out on the N52 to the east of the site resulted in inadequate sightlines at the Glennon house and compensation having to be paid. No drainage was provided with that scheme. The road is being shoe-horned through Rathconnell. Cuts have been made in expenditure. The design of the road is defective and dovetails into a defective section in front of the objectors’ house. No provision has been made for proper noise mitigation. No proper provision has been made for road drainage. The design is only the ‘best possible’ where regard is had to financial constraints. Noise mitigation is being provided for a house which is to be within 15m of the new scheme – whereas no noise mitigation was provided for the objectors whose

25.CH3138 An Bord Pleanala Page 13 of 23 house is within 6m of the road. The Council had the option of acquiring the house by compulsory purchase. The objectors disapprove of the Council’s attempt to bring matters of private business between themselves and the Council in relation to compensation for the earlier scheme. This was an attempt to blacken the standing of the objectors before this hearing.

4.9.2 John Daly

The objector was not satisfied that the Council had answered his questions in relation to cars crashing through his front hedge or the matter of a Licence for his relocated finger post B&B sign.

4.9.3 Kevin Doherty

None.

4.9.4 Hugh Flanagan on behalf of Patrick Flanagan

The term ‘shoe-horning’ very well fits the proposed road in the vicinity of the objector’s house. The objector had an alternative scheme which he would like to share with the Council. If the Price house were acquired by the Council, then the road could be moved further away from the objector’s house. The Prices had suggested that the Council acquire their house. There is no right-of-way from plot 109d.1 to the N52. There will undoubtedly be impacts from bringing the road closer to the objector’s house. There has been no elaboration in relation to the type of barrier to be provided in front of the objector’s house – other than its 80m length.

4.9.5 Jim Gaynor on behalf of Aidan & Dympna Price

None

4.9.6 Esmonde Keane on behalf of Westmeath County Council

4.9.6.1 In relation to the CPO, the general context of the road scheme is certainly necessary and will operate to improve safety. It will have individual affects on people's property and will cause injurious affection to certain people's property, and will obviously require the compulsory purchase of a number of people's property. Clearly, all of those impacts have been acknowledged by the Council.

4.9.6.2 This scheme is not an inquiry into an earlier scheme. The case of O'Connell and the Minister for the Environment and Local Government , - an unreported decision of the High Court of 29th March 2001 – was an objection in the context of an Environmental Impact Assessment. The central argument raised on behalf of the Glennons was, in essence, duplicated in that case. It was an argument that the Inspector should have considered the suitability of a northern link, to the northeast

25.CH3138 An Bord Pleanala Page 14 of 23 of that scheme under consideration. When that matter was taken to the High Court, Mr. Justice Finnegan stated as follows- "To inquire into the scheme necessarily will require an inquiry into all matters relating to the scheme. It does not require an inquiry into a road which will be the subject matter of a future scheme, should the northern link be further extended to the northeast and which extension will then, in any event, be the subject matter of a separate inquiry at which the applicant will of course be able to take part”. The Judge went on to state, in relation to the Inspector - "Had he sought to extend the inquiry, it would no longer have been an inquiry under Section 49 of the Roads Act 1993, that is an inquiry into matters relating to the scheme, but an inquiry into matters of wider ambit and beyond the scope of the inquiry which would require to be held by the section." In the case of McArdle & Others v. An Bord Pleanala & Louth County Council & the (unreported) High Court 7th March 2003; the present position is stronger than that again, because it relates to the earlier section of the N52. It has already been built and was the subject of a separate CPO which afforded an opportunity to members of the public, including the Glennons, to participate. For the Glennons to suggest that this inquiry should go back into matters which appear exclusively to relate to complaints arising from the earlier scheme would be entirely wrong, and would be doubly wrong, in circumstances where a settlement has been made of the claim for injurious affection and disturbance, and that the monies have been paid to the Glennons. It is extraordinary that an objection would be made to the Board, raising those matters without disclosing to the Board that settlement.

4.9.6.3 The Price house is not an isolated dwelling. There are two other houses further to the east. It would be inconceivable to think of an alignment which could result in the demolition of the Price house and one which would not severely impact on those houses if the road were to be straightened here. The duty on the Council is to acquire as much land as is required and no more, save for the specific provisions set out in the relevant Acts as is necessary for the provision of the scheme. Where an alignment that meets the relevant criteria provides a safe method of travel and does not result in appalling effects on people, then that is the appropriate alignment to take. Clearly mitigation measures are proposed as part of the scheme to minimise impacts on those parties adjacent to the road. The position in relation to the provision of sight distance outside the Price house is that the boundary is brought closer to the house, but the road is moved further away. There will be a very lightly-used pedestrian path to link up to an access way to a graveyard, which has been provided in substitution for a pre-existing right-of-way which accessed off the old N52.

4.9.6.4 There are provisions made for the extinguishment of rights of way, but they have been replaced with far safer accesses, which will result in a reduction in the number of accidents on this road. No party disputes the fact that the N52 is substandard and dangerous. The necessity for the road scheme, and the fact that it accords with the proper planning and sustainable development of the area, is not in doubt. An alignment has been chosen which minimises the impact on the

25.CH3138 An Bord Pleanala Page 15 of 23 community as a whole. It is accepted that a number of individuals, including the people who have attended before the hearing, will suffer adverse effects, against which they can only counter that the overall community will benefit. They have a right to compensation, which includes various other claims, including the potential for people to suggest that their entire homes be acquired if they see fit; and to leave that argument to an arbitrator.

4.9.6.5 The issue of drainage has been dealt with in the design of the scheme. Discussions have been held in relation to drainage outside the Glennon house – but those discussions do not relate to the present scheme. This inquiry is limited to the confines of the scheme as proposed. No suggestion has been made that noise has been in any way exacerbated, for example, at the Glennon house. No evidence has been presented to the effect that the road has been defectively designed. The road dovetails into the existing N52, and it would clearly make no sense for the road to end anywhere else. The road is already 6m away from the Glennon residence: that is the pre-existing condition, and this scheme does not result in any change. The Glennon residence is not within the scheme, although clearly the Glennons do own land which is being acquired. The provisions of the County Development Plan in relation to new houses is of no relevance. The road design has to take account of existing houses. Clearly, no one house can insist that the road be moved directly on top of or into their neighbour's property. A balance has been struck between properties where there are pinch points, whilst achieving the DMRB standards. This necessitates the maintaining of an open area in front of the Price house to achieve the required sight distance for people entering and exiting the old N52. An access way is being removed at the Price house, and an alternative safer access is being provided. The link between that new entrance and the existing driveway is a matter for the owners, and it would be inappropriate for the Council to acquire that property. The cost of construction of the new link driveway would be the appropriate subject matter for agreement or for a claim for compensation.

4.9.6.6 The road accords fully with regional, national and local planning policies and objectives, and the existence of the right to claim compensation in relation to any matters. A large number of the objections appear to be based more on issues of injurious affection or disturbance, which are clearly matters which come within the ambit of compensation, and can be dealt with in due course, if necessary, by arbitration should the parties not be able to reach agreement.

4.9.6.7 Insofar as the finger post sign in relation to the B&B is concerned, the evidence that John Daly is that it has not operated for the last two years. The Council's view is that it can be accommodated subject to the requirements of licensing. In relation to the design of the link road in front of the Daly house, is of very short length. It is angled away from the roadway in question so as to minimise any interference in relation to lighting. The possibility of the type of collision, referred to by the objector, would appear to be extremely remote.

25.CH3138 An Bord Pleanala Page 16 of 23 5.0 ASSESSMENT

5.1 Community Need

Having visited the lands at Rathconnell, Mullingar and the surrounding rural road network, and having conducted an Oral Hearing and examined the submissions made, I am satisfied that the Council has established a need for the N52 Rathconnell to Macetown Realignment. The N52 has been realigned on either side of the proposed scheme. An 80kph speed restriction is in place on the entire section of N52 from Mullingar. The proposed scheme will result in a limitation on the number of access points onto the N52. No house will have direct access to the realigned N52 – provision being made for slip roads and revised junction arrangements – with old sections of the N52 retained for access purposes. The number of road junctions within the scheme area will be retained at three – although the L-1721 and L-17211 will effectively be funnelled into one new junction. Sight distances in accordance with the Design Manual for Roads and Bridges are provided for new junctions. A right-hand turning lane is provided within the central median of the road for all three new junctions. The new junction arrangements for the L-17212 represents a distinct improvement – where the existing laneway is only wide enough for one vehicle. Forward visibility will be improved through the realignment of the N52 and through the regrading of the road. The proposed development will represent a considerable improvement in terms of safety for both vehicular and pedestrian traffic on a stretch of road where 14 accidents have taken place between 1991 and 2008.

5.2 Suitability of the Site

I am satisfied that the site is suitable for its intended use. The N52 Rathconnell to Macetown Realignment makes use of the existing road reservation in order to limit the amount of land it would be necessary to acquire to effect the road improvement. Part of the old N52 will be retained to provide access to houses and agricultural land. At the eastern end, a new road will be constructed – leaving the old road to function as a parallel access road for houses and agricultural land. This necessitates a larger land take to the north of the existing road. At the oral hearing it was claimed that the proposed scheme constituted a shoe-horning of a road through an area which was not suitable – and that the road should have been constructed around Rathconnell and the houses which flank the N52 at this location. It was claimed that the proposed route was the cheap option and would result in serious impact on the quality of life of residents of the area. The proposed scheme joins two already improved sections of the N52 – over a 1.5km stretch. It is acknowledged by the Council that the development will have negative impacts on some property and measures have been considered to abate the potential nuisance or where this could not be done to pay relevant compensation (if necessary subject to arbitration). I would be satisfied that the proposed CPO lands are suitable for the road scheme proposed.

25.CH3138 An Bord Pleanala Page 17 of 23 5.3 The Need for All the Lands

5.3.1 The decision to utilise part of the existing N52 road reservation has limited the amount of land to be compulsorily acquired by the Council. Old sections of the N52 are to be retained to provide access to houses and agricultural land. No resident is to be deprived of their house. It is proposed to provide a single carriageway road of 3.65m width for each of the two lanes, 2.5m flanking hard shoulders and minimum 3.0m wide flanking verges. The hard shoulders will be reduced to 0.5m width where there are right-turning lanes in the central median. An anti-dazzle fence is to be provided for safety purposes where the old and new N52 roads run parallel. Plots 125d.1 and 126e.1, in association with some adjoining lands to the south are to be used for the creation of peat bunds – to store excess peat arising from excavation. Additional lands are required in order to provide for a section of the road in cut at its western end and a small section of road embankment just to the west of the Flanagan house at chainage 580. Appropriate separations between the remaining old sections of the N52 and the new carriageway require additional land.

5.3.2 The provision of adequate sight distances at junctions has required additional land-take, particularly in the vicinity of the Price house. This has resulted in a portion of the already small front garden being compulsorily acquired (plot 117b.1). The house is a single-storey bungalow with high hedges to the front to preserve privacy [see photograph no. 13]. Such privacy could be considered desirable given the proximity of the house to the front boundary of the site and to the N52. It is noted that not all houses would either need or want such a high hedge to screen a front garden. The Council argued convincingly at the oral hearing that the minimum amount of the front garden was to be compulsorily acquired (87sq.m) and that the land-take could not be further reduced without compromising sightlines at the junction to the east of the Price house. The Council stated a willingness to provide whatever barrier the owners required in order to mitigate the situation. The proposed road will be relocated further from the Price house which should assist in relation to both privacy and noise. The footpath to be created outside the house will not result in any significant loss of amenity to the residents of the house. The owners suggested that the entire site be compulsorily acquired by the Council or that a new house be constructed further back into the site. I would not consider that such is necessary in relation to the proposed road scheme. The Council is to acquire the minimum amount of land possible, is to provide a substitute boundary for the owners and has relocated the road further away from the house than is currently the case. Any disamenity suffered will be a matter for compensation or arbitration.

5.3.3 Additional lands are required for the creation of new junctions for the L-1721 and L-17212. The affected landowners have no objection to the compulsory acquiring of the lands necessary for these junctions. It was argued by way of written submission and at the oral hearing that headlights of cars at the new junction of the L-1721 and the N52 would shine into the front windows of the Daly house.

25.CH3138 An Bord Pleanala Page 18 of 23 The Council argued that traffic coming off the N52 onto the L-1721 would be travelling downhill, and that lights would not shine into the front of the Daly house which is located on a height above the L-1721. The existing hedge and tree to the front of the Daly house will act as a screen for headlights. I would consider that if headlights do shine towards the house, it will be only momentarily at the junction before cars start to descend the hill – from a distance of approximately 120m – before swinging away to the northeast.

5.3.4 The proposed new N52 will have a considerable impact on the Flanagan House. The existing road is approximately 45m from the edge of the N52. The new road will be only 15m from the house. The level of the new road is to be raised 0.5- 1.0m above the level of the existing road. A small embankment area is to be created to the west of the Flanagan house. The Flanagan house is a single-storey structure with two windows in the gable elevation (facing towards Mullingar) – [see photographs 11 & 14 attached to this report]. The Council does not deny that the impact on this house will be significant. The alignment of the road at this location is constrained by the Price house on the opposite side of the road and the need to achieve appropriate alignment of the new road and to achieve sight distances for junctions. The Council stated a willingness to erect a fence for noise attenuation and to prevent headlights from Delvin-bound traffic shining in through the gable windows. Screen planting within the verge could also help to ameliorate any negative amenity arising from headlights – particularly those on the cabs of articulated trucks. The Daly house will acquire a new access to the N52 – shared with other residents of the L-17212, which will be a significant improvement on the existing laneway which is only wide enough for one vehicle [see photograph 14 attached to this report]. I would be satisfied that the issues of noise and light pollution could be dealt with under the accommodation works and compensation if necessary.

5.3.5 The Council proposes to compulsorily acquire plot 109d.1. This plot, together with plot 101e.1 forms a small triangular field in the ownership of Kevin Doherty. There is currently an agricultural access to this triangular field (0.5804ha) from the N52. Plot 101e.1 is required for excavation or cut into the landform, to enable the realigned road to be constructed – as illustrated on the drawings for the Part 8 scheme. This cutting would result in the remainder of the triangular field being left at the top of the cutting with no obvious means of access – other than the proposed footpath to be created to the cemetery. The remaining piece of the triangular field (plot 109d.1) measures some 0.3863ha. This, the owner claims is a potential house site. However, it is not clear how vehicular access could be gained to this site – other than from adjoining lands. The Council claims that the plot is required to construct the footpath to the cemetery. However, it is clear from drawings submitted that the footpath runs along the top of the cutting only and that the majority of the 0.3863ha is not required for the road. Arising from its inaccessibility, post road construction ,(the land is located above the level of the road) it is likely that the Council would have to acquire it, as the agricultural

25.CH3138 An Bord Pleanala Page 19 of 23 access from the N52 is to be closed off with no means of supplying an alternative – other than along the pedestrian pathway in front of the Price house.

5.4 Compatibility with Development Plan Provisions

The Midland Regional Planning Guidelines 2010-2022 (adopted on 20 th July 2010) specifically identify that section of the N52 between Billistown and Mullingar as being a key investment priority for the essential functioning of the strategic road network. Para 5.3.3 relates to Intra-Regional Links and specifically refers to the N52 between Mullingar and Billistown. The Westmeath County Development Plan 2008-2014, at section 2.3, deals with the provision of infrastructure. Policy P-IF3 states- It is the policy of the Council to improve the standards and safety of the public roads and to protect the investment of public resources in the provision, improvement and maintenance of the public road network . Policy O-IF4 states- To restrict development accessing national routes in co-operation with the NRA . Specific Roads Objective O-IFR2 states- N52 Mullingar Bypass to Billistown – Realignment . [Billistown is a crossroads on the N52 some 2.5km due southwest of Delvin]. I am satisfied that the scheme is in accordance with the Regional Guidelines and the County Development Plan.

5.5 Consideration of Alternatives

There does not appear to have been any consideration of alternatives in the Part 8 process. The brief of evidence of the Council’s Engineer (read at the oral hearing) states at section 4.1 ‘Due to various constraints together with fixed tie in points at either end the design of the realignment was restricted to one viable option ’. The single carriageway roadway on either side of the scheme lands dictates the single lane carriageway nature of this 1.5km stretch of road. Objectors claim that the route is shoe-horned through the area and that an alternative should have been considered. During the oral hearing, it was clear that the Council had considered alternatives to the route between the Price and Flanagan houses. In order to comply with road geometry requirements the selected route was chosen as being the one which had the least impact on houses whilst at the same time maintaining road safety standards. The line of the road is constrained by the houses which flank it – particularly in the middle section. The Council has clearly decided not to compulsorily acquire any person’s house. I would be satisfied that the Council was constrained in relation to options for the N52 road improvement at this location and that the proposed scheme will result in a number of benefits to road users and property owners in relation to new junctions and omission of direct residential access off the realigned N52.

5.6 Other Issues

5.6.1 Extinguishment of Public Rights-of-Way Part II of the Schedule to the Compulsory Purchase Order referred to extinguishments of 5 no. public rights-of-way. There were no objections to the

25.CH3138 An Bord Pleanala Page 20 of 23 extinguishment of rights-of-way. The Council is to provide alternative access where rights-of-way are extinguished. The extinguishments are necessary in order to construct the realigned road and associated junctions with roads L-1721, L-17211 & L-17212.

5.6.2 Drainage Matters relating to drainage more properly relate to the Part 8 Scheme. No evidence was produced, either by way of written submission or at the oral hearing, to substantiate any claim that the proposed scheme would have a detrimental impact on drainage of residential or agricultural lands within the scheme boundary. The Council stated at the oral hearing that the proposed road scheme included a scheme for road drainage. A new culvert was proposed beneath the N52 at chainage 930-940. The Council further stated that an agricultural drain would be provided to the north of the peat bund within plot 126e.1 – draining to the stream to the west of the bund. Road drainage would also be provided in front of the Price house and in the vicinity of the Daly house – discharging to existing hedgerow drains. I would be satisfied that the proposed scheme will not in any way contribute to flooding in the vicinity of the Glennon house (some 75m to the east of the scheme boundary) where it has been claimed that flooding has occurred in the past arising from defective construction of a previous road improvement scheme on the N52, immediately to the east of the current proposed scheme.

5.6.3 Fencing It is proposed to construct timber post & rail fencing and hedgerow along the new N52 where it abuts agricultural land. It was argued by objectors that such fencing had a limited lifetime and should be replaced with concrete post & rail fencing. The Council pointed out that timber fencing was standard along all new National Primary and National Secondary Roads. The Council would not replace an existing boundary with an inferior type of boundary without a resultant claim for compensation. Any animal pens which had to be removed would also be replaced by the Council. Provision was made for four new recessed agricultural entrances at the eastern end of the scheme.

5.6.4 Finger Post Sign There is an existing finger post sign for ‘Lakeview’ B&B at the junction of the N52 and the L-1721. It was pointed out at the oral hearing that this sign had been in place for 36 years – with the assent of the Council. The operator of the B&B had not been requested to apply for a licence for the finger post. The B&B has not been operational for the past 2-3 years. The Council stated at the oral hearing that there would be no problem with relocating the sign to the new junction of the L-1721 and the N52. However, the sign would be subject to a yearly licence. The owner of the sign felt that this was unfair. The matter was not resolved at the oral hearing. I would consider that it is a matter for resolution between the Council and the owner of the B&B, and one which does not materially impact on

25.CH3138 An Bord Pleanala Page 21 of 23 the matters for consideration under the CPO process – namely the compulsory acquisition of lands and the closing of public rights-of-way.

5.6.5 The Glennon House A considerable amount of time at the oral hearing was given over to discussion relating to complaints against the Council for inadequate design of a previous section of the N52 to the east of the proposed scheme – resulting in flooding of the premises, noise, vibration, inadequate sight distance and traffic hazard for turning vehicles. It transpired during the oral hearing that the Council has been in negotiation with the Glennon family over compensation and works to rectify or mitigate the disamenity being suffered. The house is located some 75m to the east of the proposed scheme boundary. I would be satisfied that the proposed scheme will not in any way contribute either positively or negatively to the status quo in front of the Glennon house. Matters relating to negotiations and discussions relating to a previous section of road improvement are not relevant to the proposed scheme. It was contended that the proposed scheme could compound difficulties already experienced by the Glennon family. Having listened to evidence produced at the oral hearing, I would conclude that the proposed scheme will not in any way alter the status quo in front of the house. The current speed limit on the road is 80kph. It was pointed out that the new scheme is designed for a 100kph speed limit. However, the matter of increasing the speed limit in this area had not yet been decided. The scheme has been designed to tie in with the earlier road improvement scheme – at a point some 75m to the west of the Glennon house. The scheme will not result in a traffic hazard in relation to the junction of Shancragh Lane (L-17213) in front of the Glennon house. Arrangements for access to this laneway are a matter for the Council. It was stated at the oral hearing that the Council intends to alter road markings in the vicinity of the Glennon house/filling station/Shancragh Lane in order to provide for safer access to premises. Such new road markings would not form part of the proposed road scheme. The claim that the Council should have compulsorily purchased the Glennon house is not an appropriate matter for consideration under the current CPO.

5.6.6 Pedestrian Access to Cemetery Provision has been made for a pedestrian pathway in front of the Price house which leads across plot 109d.1 – to provide for an existing right-of-way to a disused cemetery at Rathconnell Court. The existing N52 is in cut to the west of plot 109d.1 and this cut will be extended in front of plot 109d.1 in the proposed scheme – rendering access difficult. It was stated at the oral hearing that no right- of-way existed to the cemetery at this location – although no proof was adduced to back up this contention. The use of this footpath is likely to be limited – particularly as the cemetery is no longer used for burials. The cemetery is some 600m from the Price house. I do not see that a pathway such as this could result in anti-social behaviour in front of the Price house. The Council stated that there would be no vehicular access to this pathway.

25.CH3138 An Bord Pleanala Page 22 of 23 5.6.7 Traffic Safety at Daly House The issue of traffic safety at the Daly house was raised in written submissions and at the oral hearing. The house owner is concerned that the new junction alignment of the N52 and L-1721 will result in the possibility of a car crashing though the roadside boundary hedge into the front garden of the house. The distance between the front boundary of the house and the new N52 is approximately 70m. Cars turning into the L-1721 from the direction of either Mullingar or Delvin will necessarily have to slow down. Notwithstanding that the junction will be located at a higher level than the entrance to the Daly house, the length of road is relatively short, and the curve of the road will bring traffic away from the entrance. It would be difficult, but not impossible, for cars to build up sufficient speed to crash through the front hedge. It was noted at the oral hearing that the house is located more than 4m above the level of the L-1721 – so that there is no danger of cars crashing through the roadside hedgerow and then into the house. I would be satisfied that the likelihood of a car crashing through the hedge is remote.

5.6.8 Driveway at the Price House The proposed scheme involves the provision of a new vehicular entrance to the Price house. Drawings submitted do not show how this new entrance will be joined to the existing driveway – which is located further to the west. At the oral hearing it was argued that provision of this driveway should have been provided for within the CPO. The Council argued that the necessary link would be provided by way of accommodation works, and that there was no question of a link not being provided. However, the line of the link and the materials of construction would have to be agreed with the owners of the property, and that there would be no question of the Council entering on lands without authorisation. This would seem to be a matter which could be sorted out at construction stage, and one which does not materially impact on the CPO lands.

6.0 RECOMMENDATION

I recommend that the Board should confirm the Compulsory Purchase Order without modification.

______Michael Dillon, Inspectorate.

12 th January 2011.

25.CH3138 An Bord Pleanala Page 23 of 23