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Court dismisses ‘opportunistic collateral attack’ after rules lifted temporarily due to coronavirus 
A Tralee fish shop and restaurant has lost a High Court challenge against Kerry County Council’s decision to reintroduce traffic calming measures in the town that had been temporarily lifted to aid local businesses during the Covid-19 pandemic. 
The action, brought by Kerry Fish Ireland Unlimited Company, was dismissed by Mr Justice Anthony Barr who said it was “a collateral attack” on a decision made by the council in 2017 to introduce the traffic measures. 
The measures prevent vehicular traffic from entering Bridge Street and the Mall in the town between 10.30am and 6pm. 
During the pandemic the restrictions were lifted by the council between March 2020 and May 2020. It suspended the measures following requests from businesspeople in the area to allow customers drive close to the shops to collect their goods. 
At the time customers wanted to get as close to shops as possible to collect provisions as many were in fear of contracting Covid-19. 
The company, which operates from a premises on the Mall, challenged the reintroduction of the measures in May 2020 on the grounds that the council had breached the EU Habitats Directive. 
The alleged breach arose out of a failure by the council to carry out a screening assessment as to determine if the measure would affect a local environmentally protected site, it claimed. 
The council opposed the action. 
Legalistic bubble 
In his judgment Mr Justice Barr said that there had been no breach of the Habitats Directive. In the real world, rather than some legalistic bubble, it could not be argued that the restricting traffic from using public roads for a few hours is likely to significantly affect any environmentally protected site. 
He said the council took “a humane decision” to suspend the traffic calming measures during the period “of the most intense lockdown”. There was prior to people getting vaccinated “a great fear” about the virus among the general population during what was an “unparalleled emergency”. 
The judge said he was satisfied that the council’s decision to lift the suspension of the measures was “not a new decision” to reintroduce traffic calming measures. It was he added merely the ending of a temporary suspension of a measure put in place in 2017. 
The judge said he was satisfied that the challenge was “an opportunist collateral attack” on the council’s decision in 2017 to introduce the traffic calming measures. 
The action had been taken by the applicant company because it is one of the traders in the area not in favour of the measures, the judge added. 
While the applicant is entitled to hold whatever view it wants regarding the measures, the judge noted the company did not challenge the 2017 decision at the time. The applicant was now out of time to do so, the judge added. 
It was not possible at this stage to mount a collateral challenge attack on that decision by formulating in the guise of a challenge to a “non-existent new” decision made by the local authority in May 2020, he said. 
In all the circumstances the court was satisfied to dismiss the action. 
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