Donal Kenny v Roscommon County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 18 January 2021 |
| Neutral Citation | [2021] IEHC 24 |
| Docket Number | [Record No. 2019/393 JR] |
| Court | High Court |
| Date | 18 January 2021 |
and
[2021] IEHC 24
[Record No. 2019/393 JR]
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered electronically on the 18th day of January, 2021.
This is a contested leave application in which the applicant seeks leave to challenge variations made to the Roscommon County Development Plan 2014 – 2020 (hereinafter referred to as “ RCDP”) and to the Monksland/Bellanamullia Local Area Plan 2016 – 2022 (hereinafter referred to as “ MBLAP 2016”).
This application was moved by the applicant as a lay-litigant. In support of his application he has submitted no less than five affidavits (although the last affidavit primarily concerned the relisting of the matter), together with a very large volume of documentary exhibits. While he has a very large number of complaints in relation to a wide range of matters, it has been difficult for the court to discern what complaint the applicant has in relation to the variations that were made to the two plans. The applicant's main complaint in relation to the variations seems to be that the MBLAP 2016 was varied so as to “ retrofit” the provisions of the Athlone Joint Retail Strategy (hereinafter referred to as “ AJRS”) into the County Development Plan and the Local Area Plan, so as to give them legal efficacy. His multiple complaints are set out in some detail later in the judgment.
In summary, the response on behalf of the respondent is that the application herein, while purporting to be an application in relation to the variations to the two plans, is in fact a collateral attack made by the applicant on the MBLAP 2016, due to the fact that in that plan certain of his lands were rezoned from “ district centre” to “new residential” and a particular planning application was rejected by An Bord Pleanála on that account. It is submitted that the applicant is trying to attack the MBLAP 2016 by mounting an attack on the variations effected thereto in 2019, due to the fact that he is long out of time to challenge the MBLAP 2016.
It is further submitted that on the evidence contained in the affidavit sworn by Ms. Mary Grier, Senior Planner of the respondent on 10th January, 2020, there was absolutely no procedural irregularity or infirmity in the making of the variations to the two plans. On that basis, it was submitted that the applicant had not raised even an arguable case that the variations should be struck down, or that he was entitled to any of the reliefs sought in his statement of grounds.
As noted earlier, the applicant has submitted five substantial affidavits, together with a very large volume of documentary exhibits. In the course of those affidavits he makes numerous complaints in relation to the RCPB, the MBLAP 2016 and the decision reached by An Bord Pleanála in respect of a number of planning applications submitted by him.
In his affidavits, the applicant complains bitterly of the fact that he initially purchased land in the Bogganfin area of Athlone, Co. Roscommon, which was zoned as a “ district centre” in the MBLAP 2010–2016. When he submitted a planning application for a development on those lands, it was refused on the basis that it was too remote. He then purchased other land, which had the same zoning, but in the Monksland area, which was approximately 6km from the centre of Athlone. He submitted a number of planning applications in respect of proposed development on those lands, but was also unsuccessful in respect of those applications. In particular, the final application that he lodged and which had been refused by the planning authority and was under appeal to An Bord Pleanála, was refused by them on the basis of the content of the draft MBLAP 2016, which the applicant maintains was changed after the date of that refusal in the final MBLAP 2016 as adopted by the respondent.
The applicant challenged the decision of An Bord Pleanála in relation to that refusal, which challenge was unsuccessful. It was the subject of a written judgment by McGrath J. in Kenny v. An Bord Pleanála [2020] IEHC 290. The history of the various planning applications submitted by the applicant is set out succinctly in that judgment.
It is clear from the affidavits, that the applicant is bitterly disappointed by the rezoning of his lands in MBLAP 2016 from “ district centre” to “ new residential” in respect of the Monksland lands and to “unzoned” in respect of the Bogganfin lands. Time and again, he complains that he was badly treated due to the fact that he invested in lands on the basis of the zoning of those lands as appearing in MBLAP 2010, only to have that zoning changed in MBLAP 2016. He criticises that change in zoning due to the fact that the district centre was moved only a very short distance away from his lands and onto lands which effectively incorporated what he alleged had been lands that had been illegally used as a quarry.
The applicant complains that the MBLAP 2016 constituted a plan in relation to proper land use in the area, which was put in place prior to the adoption of the joint retail strategy for the area. He stated that that did not make any sense. He made the case that the variations to the MBLAP 2016 were invalid, as they were essentially an attempt to “ retrofit” the provisions of the AJRS into the RCDP and MBLAP 2016, when those plans ought not to have been adopted until the retail strategy was in place, because the strategy was supposed to inform the content of the County Development Plan and the Local Area Plan.
The applicant also criticises the content of MBLAP 2016 due to the fact that it was based on projections of population growth, which were shown to have been inaccurate having regard to the provisional results released by the Central Statistics Office in relation to population and population growth projections, as published in June 2014.
The applicant made it clear that he had not challenged MBLAP 2016 due to the fact that at the relevant time he had an appeal pending before An Bord Pleanála (hereinafter referred to as “ ABP”) in relation to a proposed development on the Monksland lands. He had raised issues in relation to the validity of the change in zoning contained in MBLAP 2016 in his appeal before ABP. He presumed that that body would see that the arguments that he had raised in relation to the invalidity of the rezoning contained in the MBLAP 2016 were correct and would make the necessary findings in that regard. When it did not do so, he had instituted judicial review proceedings in relation to the decision reached by ABP on his appeal.
The applicant accepted that he had made submissions in relation to MBLAP 2016, but alleged that the concerns expressed by him in his submission, had not been taken into consideration by the respondent when adopting the revised plan. He had also made submissions in relation to the proposed variation to MBLAP 2016, but he alleged that that too had not been taken into consideration.
The applicant further alleged that certain members of the committee, who represented Athlone Municipal District and who had adopted the variation to MBLAP 2016, had a conflict of interest when voting on the matter. In particular, he pointed to the fact that the chairman of that committee was an auctioneer, who had an extensive practice in the area.
While it is difficult to succinctly summarise the core argument made by the applicant in respect of the variations adopted to the RCDP and MBLAP 2016, perhaps the closest that the applicant came to stating his essential complaint was set out at para. 2 of the affidavit sworn by him on 7th July, 2019:-
“2. The court is requested to evaluate the practicality and lawfulness of adding an addendum in the form of a supplemental strategy to a local area plan that was derived from false pretences, bogus reports and contraventions of process, in fact, a plan contravening the Planning Acts (ACT) and the Guidelines (RPGs) therein. Development plans are governed by the Planning and Development Acts 2000–2018, as amended. (See 2010 Act s.10(1b) and circulars) which marked with DK1 I have signed my name prior to swearing hereof (Appendix 1,1A + 1B + 1C + 1D and s.28 as amended and Guidelines for Planning Authorities, June 2007 (PG 2007), development plans Guidelines, which marked with DK2 I have signed my name prior to swearing hereof (Appendix 2, 2A, 2B) circulars included, which deals specifically with development plans. It is submitted that the evidence outlined in this report will establish that the Monksland/Bellanamullia Local Area Plan 2016–2022, (M/BLAP 16/22) is formulated on a false agenda, with the sole rationale for the introduction of this new retail strategy being to afford credibility to a flawed local area plan. In fact, the process involves retrofitting validity to the LAP, in what may be determined as one flawed plan supporting another.”
The applicant also complained that the Regional Planning Guidelines 2012 had specifically named the respondent as a body that had to prepare a joint retail statement. However, that had not been done in advance of the adoption of MBLAP 2016. It was only done following the recommendation of the Athlone Boundary Review Committee Report of November 2017, which recommended that a joint retail strategy should be drawn up by the respondent and the notice party. They had then adopted the Athlone Joint Regional Strategy on 29th April, 2019, some three years after the adoption of MBLAP 2016. Thus, it was submitted that the adoption of MBLAP 2016 had been unlawful, due to the fact that it had been adopted in the absence of any retail strategy in place.
The applicant also maintained that the AJRS was a flawed document and that the manner of its adoption was also flawed. In his...
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Donal Kenny v Roscommon County Council
...was heard on notice to the respondent. The substantive decision refusing leave was delivered on 18th January, 2021, which is reported at 2021 IEHC 24. 3 A ruling on costs was delivered by the court on 10th February, 2021, wherein the costs of the contested leave application were awarded to ......