Duffy v The Minister for Housing, Local Government and Heritage and Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 30 January 2026
• Neutral Citation: [2026] IEHC 46
• Docket Number: Record No. 2023/1070 JR

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

Between

Michael Duffy

Applicant

and

The Minister for Housing, Local Government and Heritage

and

Office of the Planning Regulator

Respondents

and

Clare County Council

Notice Party

[2026] IEHC 46

Record No. 2023/1070 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

Judicial review – Planning and Development (Clare County Development Plan 2023-2029) Direction 2023 – Planning and Development Act 2000 s. 31AN(4) – Applicant seeking certiorari quashing the first respondent's direction – Whether the first respondent’s direction was invalid

Facts: The applicant, Mr Duffy, applied to the High Court seeking certiorari quashing the Planning and Development (Clare County Development Plan 2023-2029) Direction 2023 (the impugned Direction) of the first respondent, the Minister for Housing (the Minister), made on 3 August 2023 under s. 31 of the Planning and Development Act 2000. The live core grounds on which relief was sought were as follows: (4) the Minister’s Direction was invalid because the s. 31AN(4) Notice from the Office to the Minister, which grounds the Direction, is flawed and incomplete because it did not have regard to all the submissions made; (3) the Minister’s Direction is invalid because he should have recognised that the s. 31AN(4) notice issued by the Office to the Minister clearly indicates that consideration of all the submissions did not occur; (1) the Minister’s Direction is invalid because he did not have regard to Mr Duffy's submission made on foot of a published notice prescribed in s. 31(7)(c) which stated that his submission shall be considered before it makes a recommendation to the Minister.

Held by Holland J that, on the principles set out in GK v Minister for Justice [2002] 2 IR 418, Rana and Ali v Minister for Justice [2024] IESC 46 and K.S. v The International Protection Appeals Tribunal [2026] IEHC 13, Mr Duffy bore the onus of demonstrating by evidence that his submissions were not considered by the second respondent, the Office of the Planning Regulator (the OPR); the s. 34AN notice recorded consideration of Mr Duffy’s submissions and he adduced no evidence rebutting that record. Holland J dismissed ground 4. He also dismissed ground 3: the Minister could not be blamed for not recognising a flaw in the s.34AN notice when that flaw did not exist. Holland J held that, in terms of ground 1 and contrary to its assertion, Mr Duffy’s submission was considered by the OPR before it made its recommendation to the Minister. Holland J held that the fundamental problem with Mr Duffy’s critique of the s. 34AN(4) notice as not disclosing regard to his submissions was that it ignored the fact that the s. 31(8) report of the Chief Executive of the notice party, Clare County Council, summarising Mr Duffy’s submissions was also sent to the Minister. Holland J held that the requirement that the Minister consider Mr Duffy’s submission was met by his consideration of the CE’s s. 31(8) report - which consideration was explicitly recorded in the letter covering the impugned Direction and which Mr Duffy had not disproved. Holland J dismissed ground 1.

Holland J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT OF Mr Justice David Holland, DELIVERED ON 30 JANUARY 2026

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND, DELIVERED ON 30 JANUARY 2026	1
INTRODUCTION & SOME PRELIMINARY DECISIONS	2
Grounds 4, 3 & 1 & some Introductory Observations as to the Law	3
Access to National Roads & Others' Submissions — Decision	4
Unusual Proceedings	5
Collateral Attack	7
CHRONOLOGY & CONSIDERATION OF GROUNDS	9
Ground 4 – Decision	16
Ground 3 – Decision	17
Chronology Resumed	17
Scope of Minister's Power on Receipt of OPR's S.31AN(4)(a) Recommendation to issue a Direction & Tactical Implications thereof	20
Chronology Resumed	21
Ground 1 — Decision	22
CONCLUSION	22

Introduction & Some Preliminary Decisions 1

1 Mr Duffy, a lay litigant, engineer, environmental activist and resident of Kilfenora, County Clare, with a particular interest in what he considers to be the inadequacies of wastewater treatment in that county, seeks by these proceedings certiorari quashing the First Respondent's (the “Minister”) Planning and Development (Clare County Development Plan 2023–2029) Direction 2023 (“the Impugned Direction”) made on 3 August 2023 under section 31 PDA 2000. 2 Thereby, on the statutory recommendation of the Second Respondent (the “OPR”), the Minister directed amendments to the Clare County Development Plan 2023–2029 (the “CDP”) as it had been adopted by the elected members (“the Members”) of the Notice Party (“the Council”) on 9 March 2023.

2 I do not propose here to recite the highly complex and iterative statutory processes leading to a ministerial direction under section 31 PDA 2000. I respectfully refer the reader to decisions such as FoIE 3 and Mount Salus. 4

3 Broadly, the Impugned Direction has two aspects:

• • §2a deletes from the CDP its residential zoning of 20 identified areas – reverting in 19 of them to various non-residential zonings which had been envisaged for those areas in the Draft CDP 5 but which had been residentially zoned in the CDP on foot of Material

  Alterations to the Draft CDP statutorily adopted by the Members in the plan-making process. The Minister's stated reasons include the view that Material Alterations had residentially zoned additional land in excess of county requirements and/or in peripheral/nonsequential locations, in breach of various national and regional planning policy objectives.

• • §2b deletes from the CDP's policy to avoid permitting access from adjoining lands, including from individual houses, to national roads 6 to which speed limits of greater than 60km/h apply, the possibility of allowing such access in exceptional circumstances of existing accesses onto national secondary roads.

4 As to §2a of the Impugned Direction, Mr Duffy's underlying substantive complaint, and that of his submissions in the statutory process which resulted in the Impugned Direction, is that the CDP, even as amended by the Impugned Direction, still contains residentially-zoned areas for which wastewater treatment is absent or inadequate and will remain so for the duration of the CDP. In other words, he says that the rationale of §2a of the Impugned Direction was not carried into full effect by Impugned Direction such that the CDP is inconsistent with that rationale by reason of such remaining residential zonings. Short of irrationality, this is an argument as to the merits of the Impugned Decision and cannot yield relief in judicial review. Insofar as he relies on a limited number only of his pleaded grounds, Mr Duffy makes no pleaded case of irrationality.

Grounds 4, 3 & 1 & Some Introductory Observations as to The Law

5 The other grounds for which leave to seek judicial review was sought having been abandoned, the remaining live core grounds on which relief is sought are as follows. I have reordered them to better reflect the workflow in the direction adoption process.

CG 7 4

The Minister's Direction is invalid because the s.31AN(4) 8 Notice from the Office to the Minister, which grounds the Direction, is flawed and incomplete because it did not have regard to all the submissions made.

CG3

The Minister's Direction is invalid because he should have recognised that the s.31AN(4) notice issued by the Office to the Minister clearly indicates that consideration of all the submissions did not occur.

CG 1

The Minister's Direction is invalid because he did not have regard to my submission made on foot of a published notice prescribed in s.31(7)(c) 9 which notice clearly stated that my submission shall be considered before it makes a recommendation to the Minister.

6 While I have had regard to his various pleadings and submissions, it bears observing that, having in the Statement of Case 10 summarised his position as to Ground 1, as to Grounds 3 and 4 Mr Duffy's contribution to the Statement of Case says only “ As set out above for core ground 1”. This reflects the fact that, whatever its elaboration by reference to the various duties of the OPR and the Minister, Mr Duffy's case is essentially grounded in a single overall allegation – of failure, in the statutory process which resulted in the Impugned Direction, to have regard to his submissions.

7 Mr Duffy's underlying theme, which I accept as valid, is that public participation is fundamental to planning processes. I also accept that he exercised his rights of public participation at all times in the statutory process which led to the Impugned Direction and was entitled to regard to his submissions by the OPR and the Minister. In fairness to him, he recognises that the process simply has to have regard to submissions and does not require that they be accepted and acted upon them as otherwise the system would be unworkable.

8 As will be seen above, each remaining live Ground asserts a failure of regard to submissions. Many cases have considered this obligation 11 – which falls to be contrasted with obligations of compliance. Notable is the recent summary of the law in this regard by Humphreys J in Coolglass 12 and his observation in Cork County Council 13 that “ No kind of compliance is required by a have-regard obligation, merely regard.” The obligation to “ consider” or “ have regard” is a “ light burden in respect of which no kind of compliance by the decision-maker is required”. A “ decision-maker obliged to “have regard to” a factor bears a light burden, is free to give no weight to it and is judicially reviewable as to merit in that regard only for irrationality” – Fernleigh. 14 A lack of narrative discussion does not imply failure of regard, and the duty of regard does not in itself require...