Hickwell Ltd v Meath County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 12 July 2022
• Neutral Citation: [2022] IEHC 418
• Court: High Court
• Docket Number: [2022 No. 7 COM]

In the Matter of Sections 50, 50A and 50B of the Planning and Development At 2000 (As Amended)

Between

Hickwell Limited and Hickcastle Limited

Applicants

and

Meath County Council

Respondent

[2022] IEHC 418

[2022 No. 7 COM]

[2021 No. 961 JR]

THE HIGH COURT

COMMERCIAL

Development – Indicative road route – Adoption – Applicants challenging the validity of the adoption by the respondent of an indicative road route in the County Development Plan – Whether there was an interference with the applicants’ right to the peaceful enjoyment of their possessions

Facts: The applicants, Hickwell Ltd and Hickcastle Ltd, applied to the High Court seeking: (1) an order of certiorari quashing part of the Meath County Development Plan 2021-2027 (adopted on 22nd September 2021), namely the “Proposed Dunboyne/Clonee/Pace Amendment No. 5”, which was approved by the respondent, Meath County Council, as part of the said County Development Plan as adopted, and which amended Land Use Zoning map (Sheet 13(a)) to “correctly show the indicative road routes through MP2 and MP3” to provide a road alignment route which went directly through the applicants’ lands at Bracetown and Gunnocks, Dunboyne, County Meath, and which cut across a permitted development (under permission RA/150972) that was part implemented; (2) such order of certiorari as the Court deemed fit quashing such part or all of the County Development Plan insofar as same appeared appropriate to the Court having heard the case. (3) a declaration that the indicative road route through MP2 and MP3 was invalid and of no legal effect insofar as concerned the applicants’ lands; (4) a declaration that the respondent had acted in breach of its obligations under the Constitution and the European Convention on Human Rights Act 2003 in failing to have regard, whether adequately or at all, to the applicants’ rights in respect of the property affected, to the applicants’ rights to fair procedures, and/or to the necessity, justice and proportionality of the proposed interference with the applicants’ rights; (5) a declaration that the respondent had acted in breach the applicants’ constitutional rights to property, including under Article 43 and Article 40.3.2°, in purporting to impose an effective restriction on the applicants’ rights to develop their lands with the consequent impact on the value of their lands, without compensation; (6) an order whether in the nature of declaration or otherwise that s. 50B of the Planning and Development Act 2000 and/or ss. 3 and/or 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or Article 9 of the Aarhus Convention applied to the proceedings; (7) such declaration(s) of the legal rights/legal position of the applicants or legal duties/legal position of the respondent as the Court considered appropriate; (8) a stay on the implementation of the part of the County Development Plan under challenge in the proceedings, pending the determination of the proceedings, with such stay limited to the applicants’ lands at Bracetown and Gunnocks only; (9) further or other others; and (10) costs.

Held by Humphreys J that, as to the question of whether there should be a road at all, even though the road was existing policy, the reasons given for the road being built at all were not adequate in the light of the new material in the applicants’ expert report; and in addition the reasons given were erroneous on their face insofar as they stated that the road was an objective of the plan. As to the question of requiring the applicants to build the road on their own lands, he held that if the council’s decision to have a road had been adequately reasoned, there would have been no illegality or lack of reasons for the policy decision to require individual landowners to build sections of the road on their own land as a condition of successive planning applications. As to the route chosen, he held that no or no adequate reasons were given as to why the particular route chosen was selected as the indicative route. He held that the erroneous reasons and lack of reasons had the consequence that there was an interference with the applicants’ right to the peaceful enjoyment of their possessions under Art. 1 of Protocol 1 of the ECHR as applied by the 2003 Act.

Humphreys J held that, as regards the claim for relief regarding the road insofar as it crossed the applicants’ lands, he would in principle make an order in favour of the applicants. As regards the claim in respect of breach of Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment, he did not consider it necessary to refer the questions involved to the CJEU and he did not think that the applicants had made out that claim.

Relief granted in part.

JUDGMENT of Humphreys J. delivered on Tuesday the 12th day of July, 2022

1 The applicants challenge the validity of the adoption by Meath County Council of an indicative road route in the County Development Plan. The road is intended to run through various lands used for business activity in Dunboyne, County Meath, including the applicants' lands.

2 The road is referred to on the papers as a “distributor road”, although no particularly satisfying definition of a distributor road was offered. The term isn't defined in the Concise Oxford Dictionary of Current English, 6th ed. (Oxford, Clarendon, 1976), or The New Shorter Oxford English Dictionary (Oxford, OUP, 1993), suggesting a more recent coinage perhaps.

3 Broadly, a distributor road appears to be a road connecting routes lower down the hierarchy of roadways to routes higher up the hierarchy, and in practice generally means a low to mid-ranking road in the hierarchy of roadways with low to moderate use connecting local streets with local or regional roads.

4 The Roads Act 1993 provides for classification of local, regional and national roads, a terminology referred to in Murdoch and Hunt's, Dictionary of Irish Law, 6th ed. (Dublin, Bloomsbury, 2016) at p. 1481.

5 In the urban design context, the Design Manual for Urban Roads and Streets (DMURS) manual refers to a hierarchy of streets as follows:

• (i). local streets (corresponding to local roads), which “provide access within communities and to Arterial and Link streets”,

• (ii). link streets which are said to correspond to regional roads and also referred to as district distributor roads which “provide the links to Arterial streets, or between Centres, Neighbourhoods and/or Suburbs”, and

• (iii). arterial streets which are said to correspond to national roads and are also referred to as primary distributor roads. These are “the major routes via which major centres/nodes are connected. They may also include orbital or cross metropolitan routes within cities or larger towns.”

6 These definitions, if one wants to call them that, are not exactly totally enlightening, and I don't find them particularly useful outside the urban context. Certainly it would make little sense to put the relatively modest distributor road the subject-matter of this case in the same category as a regional road, still less a national road. On the maps it seems less significant than the marked nearby local roads.

7 And the terminology of “streets” seems apt only in the urban setting which is not we are dealing with here. The term “road” is more apposite outside that context, although there are exceptions, Watling Street being a famous example — a Brittonic, and later Roman, highway that runs poignantly and evocatively through the heart of England.

8 The applicants are the owners of The Hub Logistics Park in Dunboyne, which offers warehouses with office facilities suitable for large scale logistics and distribution. It is to the north of Bracetown Business Park and of the data centre campuses of Facebook/Runways and EngineNode. The area hosts a limited number of ostensibly self-contained (certainly not obviously functionally related) business campuses, all with their own existing access, but the council thinks it is necessary and appropriate for there to be a road connecting all of these.

9 Development in The Hub commenced in 2006 under planning permission reference DA/50233, which permitted six logistics/light industrial units serviced by an internal distributor road accessed from the Kilbride Road.

10 The Dunboyne/Clonee/Pace Local Area Plan 2009–2015 contained CER OBJ 3 as an objective:

“To facilitate the development of lands between Portan[,] Clonee and Bracetown for E2 ‘General Industry & Employment’ and E3 ‘Warehousing & Distribution’ as provided for in Volume I of the County Development Plan. A Master Plan and a detailed Roads Needs Assessment of said lands shall accompany any planning application for the development of these lands. This Master Plan shall obtain the prior written agreement of the Executive of the Planning Authority. The Master Plan shall accompany any application for planning permission on these lands and shall address land use, transportation, connectivity, urban design, recreation, environmental impacts including flood risk, phasing and implementation issues to the satisfaction of the Executive of the Planning Authority. Development shall be contingent on the phased delivery of the distributor road.”

11 The effect of that was that where a developer wished to seek planning permission within the area, they had to provide a masterplan to be agreed with the council. “Masterplan” used in this sense is another relative neologism not defined for the purposes of the planning context in the usual sources. The World Bank website (worldbank.org) states that “[a] master plan is a dynamic long-term planning document that provides a conceptual layout to guide future growth and development.” However, for present purposes the definition offered by counsel for the applicants here seems most apt, which is a document that treats of land use issues going over and...