Bartra Property (Dublin) Ltd v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Barry O'Donnell
• Judgment Date: 04 September 2024
• Neutral Citation: [2024] IEHC 535
• Docket Number: [2022 No. 352 JR]

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

Between

Bartra Property (Dublin) Limited

Applicant

and

Dun Laoghaire Rathdown County Council

Respondent

[2024] IEHC 535

[2022 No. 352 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Development plan – Discrimination – Applicant seeking to quash part of a development plan – Whether there was improper discrimination or singling out of the applicant’s lands

Facts: The applicant, Bartra Property (Dublin) Ltd, sought to quash part of the Dún Laoghaire Rathdown County Development Plan 2022 to 2028, made and adopted by the respondent, Dun Laoghaire Rathdown County Council, on 10 March 2022. The particular aspect of the Development Plan under consideration concerned an area within Dún Laoghaire Rathdown called Bullock Harbour, and a significant portion of that area was owned by the applicant. The challenge arose from a decision made by the elected members of the respondent to change the zoning of Bullock Harbour to exclude residential development. On 25 May 2022, the High Court granted the applicant leave to apply for a judicial review. The following substantive reliefs were sought: “An Order of Certiorari by way of application for judicial review quashing the decision of the Council to make and adopt, within the New Plan, proposed amendment no. 239 (that was tabled as motion no. 61 from the floor at a meeting of the elected members of the Council on 18 October 2021) ... An order remitting the matter to the Respondent to be considered and determined in accordance with law and in accordance with such directions as the Court considers appropriate.” The applicant proposed that the decision was invalid because of a failure to give adequate reasons, a failure to take account of relevant considerations, taking account of irrelevant considerations, and improper discrimination or singling out of the applicant’s lands.

Held by O'Donnell J that there was a proper and full documentary record which sufficiently explained the rationale for the decision of the elected members, the principal reasons were consistent with the requirements of the Environment (Miscellaneous Provisions) Act 2011 and the Planning and Development Act 2000, and the reasons given adequately explained the rationale for the decision to change the zoning to remove residential use. O’Donnell J held that the elected members made a valid policy choice that it was better to deal with the question of residential development at a broader policy level instead of leaving the question to the development management process. In doing so, the court was satisfied that they had regard to and took into account the necessary relevant considerations. O’Donnell J held that the applicant’s argument that the elected members took irrelevant considerations into account was not made out. O’Donnell J was not persuaded that the applicant was correct in arguing that the Council adopted a discriminatory approach to the zoning of Bullock Harbour. O’Donnell J found that the evidence did not establish that the decision was motivated by personal concerns about the applicant; the focus clearly was on the expressed concerns about the suitability of the site for residential development and not about the identity or characteristics of the person who wished to engage in that development.

O'Donnell J refused the application for judicial review.

Application refused.

JUDGMENT of Mr Justice Barry O'Donnell delivered on the 4th day of September, 2024.

INTRODUCTION

1 . This judgment concerns a challenge brought by way of judicial review in which the applicant company seeks to quash part of the Dún Laoghaire Rathdown County Development Plan 2022 to 2028, made and adopted by the respondent Council on 10 March 2022.

2 . The particular aspect of the Development Plan under consideration concerns an area within Dún Laoghaire Rathdown called Bullock Harbour, and a significant portion of that area is owned by the applicant. The challenge arises from a decision made by the elected members of Dún Laoghaire Rathdown County Council ( DLRCC) to change the zoning of Bullock Harbour to exclude residential development.

3 . On 25 May 2022, the High Court granted the applicant leave to apply for a judicial review. Following some narrowing of the issues at the hearing of this case, the following substantive reliefs were sought:-

“An Order of Certiorari by way of application for judicial review quashing the decision of the Council to make and adopt, within the New Plan, proposed amendment no. 239 (that was tabled as motion no. 61 from the floor at a meeting of the elected members of the Council on 18 October 2021).

…

An order remitting the matter to the Respondent to be considered and determined in accordance with law and in accordance with such directions as the Court considers appropriate.”

4 . The application as set out in the very extensive Statement of Grounds is predicated on four core legal grounds, which were described as follows.

5 . Core Ground 1:

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed to properly consider the report and recommendation of the Chief Executive and/or give reasons for rejecting the recommendation of the Chief Executive and/or give reasons for rejecting the submissions made by the Applicant, in breach of Articles 6 and 8 of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (otherwise “strategic environmental assessment” or “SEA”), subsections (9), (10) and (11) of section 12 of the Planning Acts and/or natural and constitutional justice and/or failed to provide any or any adequate reasons for its decision contrary to the general administrative duty to give reasons and/or contrary to the judgment of the High Court in Christian v. Dublin City Council [2012] IEHC 163.”

6 . Core Ground 2:

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed to consider, whether properly or at all, the proper planning and sustainable development of the area to which the development plan relates, in breach of section 12(11) of the Planning Acts and/or failed to have regard, properly or at all, to relevant considerations including:

• (a) the determination of the Council's Planning Officer on 20 February 2018 that residential use of the Bartra Lands is consistent with the proper planning and sustainable development (Planning Officer's report on Council reference no. D17A/1135) and the same determination made by the Board on 28 June 2019 (when granting Board reference number ABP-301237-18);

• (b) the evidence within the KHSK Report that the Bartra Lands have lost its previous commercial marine function, is now a brownfield site, with its former large warehouse/workshop/shop buying disused, and that other none other non-residential uses, as provided for in the New Plan, will not be viable without a residential component;

• (c) the provisions of the New Plan in relation to risk of flood, wave overtopping or erosion that required detailed assessment of any proposed development within the planning application (or development management process);

• (d) the provisions of the New Plan in relation to heritage protection for the rock outcrop area along the foreshore, measuring approximately 0.31 Ha, within the Bartra Lands; and/or

• (e) the provisions of the New Plan that could lead “open for consideration” on the Bartra Land use for “Assisted Living Accommodation”.”

7 . Core Ground 3:-

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed to restrict its considerations to the proper planning and sustainable development of the area to which the development plan relates, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or any Minister of the Government, in breach of section 12(11) of the Planning Acts and/or contrary to the judgment of the High Court in Christian v. Dublin City Council [2012] IEHC 163 and/or have regard to irrelevant considerations including:

• (a) prejudgment on the part of the elected members in respect of any pending or future application or appeal made that includes “residential use” and as, perhaps, a warning that no such applications will be entertained;

• (b) the motive or desire to fetter the discretion of the Council and/or the Board, when making a decision on any pending application or appeal considering any planning or future application or appeal made that includes “residential use”, to “put to bed” the “long battle” about suitability of the Bartra Lands for “residential use” and/or, in particular, to interfere with the pending application (and now appeal); and/or, (c) the “controversy” about, or numbers of persons interested in, the potential for “residential use” of the Bartra lands”

8 . Core Ground 4:-

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed, when including in the New Plan zoning objectives for the new area, to restrict its considerations to the proper planning and sustainable development of the area to which the development plan relates, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government, or any Minister of the Government, in breach of sections 10(2) and 12(11) of the Planning Acts and/or contrary to the judgment of the High Court in Christian v. Dublin City Council [2012] IEHC 163 by including objectives that are not “of particular areas for particular purposes”, but are singularly and uniquely applicable only to the lands in the Applicant's ownership and/or are discriminatory.”

9 . The core grounds can be reduced to the propositions that...