Baile Bhuachhlain Teoranta and Others v Galway County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 01 November 2024
• Neutral Citation: [2024] IEHC 604
• Docket Number: [H.JR.2022.0000689]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Baile Bhruachlain Teoranta, Coill Bhruachlain Teoranta, Baile Eamoinn Teoranta and Glann Mor Cuan Teoranta and Glann Mor Ceibh Teoranta

Applicants

and

Galway County Council

Respondent

[2024] IEHC 604

[H.JR.2022.0000689]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judical review of planning permission - multiple reliefs sought - extension of time granted

Facts: The application concerned three areas owned by the applicants (different applicants owning different lands) at Maigh Cuilinn, An Spidéal and An Ceathrú Rua in Conamara, Co Galway. The reliefs sought included; (i) an order of certiorari quashing the Galway Country Development Plan 2022-2028; (ii) further, or alternatively an order pursuant to section 50A(9) of the Planning and Development Act 2000 (as amended), declaring to be incalid or quashing the part or parts of the decision which the court finds to be invalid, together with any consequential amendments to the remainder of the decision or part thereof that the court may consider appropriate; (iii) A declaration, by the way of judicial review, that in making the afore said decision the Respondent failed to adequately provide for effective public participation in the decision making process contrary to its obligations pursuant to section 12 of the Planning and Development Act 2000, by reason of a failure to fully and fairly summarise the detailed submissions of the Applicant in a report dated October 2021, and/or in the Chief's Executive;s Report dated March 2022; (iv) a declaration, by way of judicial review, that in failing to make available the minitues of the Plenary and Special Meetings of the Council in 2021 and 2022, the council breached the fair procedures and natural and constitutional justice and, in consequence whereof, the decision of the Respondent is invalid, unlawful, ultra vires the powers of the Respondent, and is null and void; (v) declaration(s) of the legal rights and/or legal positiion of the Applicants and (if appropriate) persons similarly situated and/or of the legal duties and/or legal position of the respondent as the court considers appropriate; (vi) if necessary, an Order extending time for the purposes of making the within application for judicial review; (vii) if necessary, an Order providing for the discovery of documentation which is or has been in the power, possession or procurement of the Respondent and which is relevant to any issue in these proceedings; (viii) Further and/or other Order or relief; (ix) liberty to apply; (c) liberty to file further Affidavits; (xi) A decla ration that the special costs rules apply to the proceedings under Section 50B of the Planning and Development Act 2000

The grounds of challenge for Maigh Cuilinn included; (1) inadequate summary in CE report; (2) not applicable; (3) lack of access to minutes; the grounds of challenge for An Spidéal included: (1) lack of summary of second submissions; (2) not applicable; (3) lack of access to minutes; the grounds of challenge for An Ceathrú Rua included: (1) not applicable; (2) lack of reasons; (3) pleaded in general terms.

The court concluded the following; (i) A CE has a wide margin of appreciation in summarising gsubmissions, which can be done on a grouped, themed or geographic basis and does not need to be point-by-point; (ii) in any event, even if the submission was impermissibly exiguous, the applicantss should not be afforded certiorari because the members were not wholly dependant on the summaries, had access to the full submissions and were briefed at various workshop, and because the applicants made no effort to redress any omissions at the time; (iii) the reason for the Céibh an tSrutháin OS zoning is set out in the motion and is sufficient; (iv) there was no adequate reason for access to the minutes. Court made the following orders; (i) time be extended for the bringing of the proceedings; (ii) unless any written legal submissions to the contrary are submitted within 14 days, the proceedings will be dismissed with no order for costs; (iii) the parties must arrange between them for on to notify the Minister of the outcome with 7 days; (iv) matter was listed for Monday 18th November 2024 to confirm the foregoing

JUDGMENT of Humphreys J. delivered on Friday the 1st day of November 2024

1 . Landowners in Co. Galway made submissions to the council primarily seeking rezoning of their lands to residential or tourism uses. In October 2021, the chief executive ( CE) summarised the relevant submission extensively and recommended no change in relation to the areas sought to be zoned residential, something with which the members agreed. The CE recommended no zoning for the area that the applicants ultimately wanted specified for tourism purposes, whereas the members disagreed and zoned that area open space, giving a reason. The landowners now demand certiorari based on an alleged inadequate summary of their submission and an alleged lack of reasons for the open space zoning, as well as unavailability of agendas which they never sought and minutes which didn't exist as minutes at the material time because the drafts hadn't been approved by the members, and which weren't sought until after the procedure for submissions on the residential zoning issues had closed. The issue here is whether these are valid grounds for certiorari in the circumstances.

Geographical context

2 . The application concerns three areas owned by the applicants (different applicants owning different lands) at Maigh Cuilinn, An Spidéal and An Ceathrú Rua in Conamara, Co. Galway. The latter site is a quayside property at Céibh an tSrutháin which is about 1.5 km from An Ceathrú Rua proper – although diffuse ribbon development wouldn't be unknown in the Conamara area so it seems legitimately described as in An Ceathrú Rua.

Facts

3 . On 18th June 2020, the respondent council gave notice to the public of its intention to review the Galway County development plan 2015–2021, thereby commencing the statutory process of making the new plan.

4 . In September 2020, agents on behalf of the applicant companies (MKO Ireland) made a submission ( the first submission) on the issues paper which would inform the making of the draft new plan. These submissions addressed the three sites the subject of the grounds of challenge.

5 . In May 2021, the respondent published the Galway County draft development plan 2022 – 2028, Volume I (the draft plan). Members of the public were invited to make submissions or observations regarding the draft plan, in writing or electronically via the website, to the Planning Authority between 20th May 2021 until Friday 30th July 2021.

6 . On 28 July 2021, MKO Ireland, planning and environmental consultants made a submission ( the second submission) on the draft plan. This states on its face that it is made on behalf of the first and third named applicants. It is a hefty 109-page document including appendices.

7 . In October 2021, the CE of the respondent presented a report on the draft plan consultation process. This summarised the submissions made. The report was 1,348 pages long, and endeavoured to summarise a grand total of 2,877 submissions received.

8 . During the months of December 2021 / January 2022, special meetings of the council were convened to consider the content of the report of the CE dated October 2021. A critical material amendment to which objection is taken was passed on 12th January 2022 in relation to Céibh Sruthán changing the proposed zoning (from unzoned to open space).

9 . During February and March 2022, the public consultation period on proposed material alterations to the draft plan was held.

10 . In February 2022, and thereafter, the applicants through their advisers MKO Ireland sought a copy of the minutes in relation to the material amendments by contacting council officials, but these were not available at that point. Indeed it is quite clear that the minutes, qua minutes, didn't exist at that point. Until approved by members at a subsequent council meeting, there are only draft minutes. When approved and signed they become the minutes.

11 . On 4th March 2022, MKO Ireland prepared a submission ( the third submission) on the proposed material alterations to the draft plan. This related purely to Sruthán Quay, the gist being that the area should be zoned for tourism rather than open space.

12 . In March 2022, the CE published a report on submissions received on the proposed material alterations to the new plan. Thereafter, in April / May 2022, the elected members held special meetings of council to consider the proposed material alterations to draft plan.

13 . The new plan was adopted on 9th May 2022. Statutory notice of adoption of the new plan was not published at that time.

14 . On 3rd June 2022, the Office of the Planning Regulator made a submission on the plan to the Minister of State for Housing, Local Government and Heritage ( the Minister).

15 . On 16th June 2022, the Minister issued a draft ministerial direction to the council, pursuant to s. 31 of the 2000 Act.

16 . On 17th June 2022, the council published notice of the making of the Galway County development plan 2022–2028 in The Connacht Tribune.

17 . On the same date, the applicants' agent, MKO Ireland, notified Mr Ronan Barrett (a director of the applicant companies) of the notification of the making of new plan and also the draft ministerial direction.

18 . Volume 2 of the new plan, together with appendices did not become publicly available or accessible until a date in or around the end of July 2022.

19 . On 29th June 2022, a letter was sent to the Minister on behalf of the applicants, containing submissions on the s. 31 draft direction.

20 . On 30th June 2022, Mr Barrett made a request to the council pursuant to the Freedom of Information Acts,...