Jones and Another v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 11 July 2024
• Neutral Citation: [2024] IEHC 301
• Court: High Court
• Docket Number: [H.JR.2022.0000686]

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

Between

Christopher (Otherwise Chris) Jones and Jones Investments Ltd

Applicants

and

South Dublin County Council

Respondent

and

The Minister for Education

Notice Party

[2024] IEHC 301

[H.JR.2022.0000686]

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT ofHumphreys J.delivered on Thursday the 11th day of July 2024

1 . Welcome to groundhog day. In Killegland Estates Ltd. v. Meath County Council[2023] IESC 39, [2023] 12 JIC 2109 and McGarrell Reilly Homes Ltd & Anor. v. Meath County Council[2023] IESC 40, [2023] 12 JIC 2110, Hogan J., writing for a unanimous seven-judge Supreme Court, rejected two challenges to development plan provisions, holding, or citing approvingly propositions to the effect, among other things, that any land use objective is “liable potentially to be changed via this democratic process at some future stage when the next development plan is adopted”, that this “does not entitle [an] applicant to compensation even though the value of [the] land may have been reduced as a result”, that “the power to make a development plan is [a] function of the elected members”, that [w]hen the Council exercises these … powers, it acts as of necessity as a deliberative assembly”, that “any court must be very slow to interfere with the democratic decision of the local elected representatives entrusted with making such decisions by the legislature”, that [t]hese sentiments now apply with even greater force following the subsequent adoption of Article 28A.1 of the Constitution in 1999 with its recognition of ‘the role of local government in providing a forum for the democratic representation of local authorities in exercising and performing at local level powers and functions conferred by law’”, that “one key object of … core strategy provisions is to ensure that development plans take proper account of projected population growth in any given areas”, that “[t]his in turn implies that the promiscuous and unlimited rezoning of land for residential land – which in the past was often an unhappy feature of the entire development plan process – should no longer be permitted”, and that “the elected members were empowered by law to make a democratic decision regarding the scope of the development plan and this they duly did”. In the present case, the applicants challenge the reservation of their lands for a school, a reservation which the council provided, in the words of Hogan J., to “take proper account of projected population growth”. The applicant landowners want the school to be somewhere else – just not-in-my-back-yard. The council's view, in effect, is that housing in this area without the social provision represented by the school reservation is tantamount to “the promiscuous and unlimited rezoning of land for residential land – which in the past was often an unhappy feature of the entire development plan process – [which] should no longer be permitted”. Indeed the Department of Education described the school reservation as “vital”. The primary question is whether the applicants' attack on the council's democratic decision through the guise of various legal doctrines is in reality an impermissible merits-based complaint which falls outside the competence of the judicial branch of government.

Geographical context

2 . The dispute relates to a greenfield site at Stocking Avenue, Ballycullen in the Dublin 16 area of South Dublin County. Its approximate location is close to:

https://www.google.ie/maps/@53.2719243,-6.321532,3a,75y,185.68h,71.84t/data=!3m6!1e1!3m4!1sMJepeo9YGRYSg14ycucZhw!2e0!7i16384!8i8192?entry=ttu.

3 . The site sits at the southern edge of current residential development in that area of south Dublin. Tallaght is towards the north-west, Rathfarnham towards the north-east. The Hellfire Club (see Hellfire Massey Residents Association v. An Bord Pleanála & Ors.[2021] IEHC 424, [2021] 7 JIC 0201) is less than 4 km to the south with the Dublin mountains beyond.

Facts

4 . In 1997, the site was transferred into the name of the first named applicant and his sisters.

5 . The location was first specified in the local plan-making process as a primary school site within the Ballycullen/Oldcourt Area Action Plan (AAP) 2000.

6 . The AAP related to lands with an area of 92.5 hectares (228.6 acres) at Ballycullen-Oldcourt, including the land in question here, which were zoned objective “A1” which is “To provide for new residential communities in accordance with approved Action Area Plans” in the South Dublin County Development Plan 1998–2004. The overriding development concept for the AAP lands was “to develop a sustainable community where all residents are within a convenient walking distance to schools, parks, and community facilities”.

7 . The rationale for the reservation of the site as set out in the AAP was as follows:

“An existing primary school in the adjoining Ballycragh neighbourhood to the west has not sufficient capacity to facilitate the entire zoned area. There is a need for an additional primary school to serve the scale of the development anticipated. A site has therefore been reserved for a primary school to the east of the Ballycullen Road where the larger population of the zoned lands is located. The site has been reserved central to the area to be served so as to discourage excessive transport of children to school by private car. A site for a post primary school is not required”.

8 . In 2004, the site was allocated a specific objective (SO, inaccurately referred to in the pleadings as an SLO) to provide a primary school in the SDCC Development Plan 2004 – 2010 (Sheet 4 of the plan).

9 . On 19th September 2006, a letter was sent from the first named applicant to the Minister enquiring as to the Department's future plans for the Ballycullen site and requesting a proposed timeline.

10 . On 27th September 2006, a letter was sent from the Minister to the first named applicant acknowledging receipt of the letter dated 19th September, and stating enquiries were being made and that another letter would follow.

11 . On 25th October 2006, the first named applicant sent a letter to the private secretary of the Minister to enquire if there has been any progression in relation to the above matter.

12 . On 31st October 2006, the Minister sent a letter to the first named applicant acknowledging receipt of the letter dated 21st October, and stating enquiries were being made and that another letter would follow.

13 . On 18th January 2007, the Minister sent a letter to the first named applicant outlining that the Minister had no immediate plans to acquire the preserved site but that it was to remain as a reserved site. It was noted that the Department was anxious to ensure that reservations were not held on sites that would not be required.

14 . On 10th March 2008, the first named applicant sent a letter to the Minister enquiring if the Minister intended to acquire the land, noting an announcement regarding new primary schools and the absence of the Ballycullen site.

15 . On 20th March 2008, the Minister sent a letter to the first named applicant acknowledging receipt of the letter dated on 10th March and that the matter would be referred to the Property Management Section of the Department.

16 . On 1st July 2008, the first named applicant sent a letter to the Minister notifying her of the lack of response.

17 . On 11th July 2008, a letter was sent from the Minister to the first named applicant acknowledging receipt.

18 . On 23rd July 2008, the Minister sent a letter to the first named applicant stating that a new primary school would be required and that this would be acted upon in a timely manner.

19 . In 2007, ministerial guidelines on development plans were made: (https://www.gov.ie/pdf/?file=https://assets.gov.ie/111134/f57187a6-da41-4b1d-87d1-fe6bd880310f.pdf#page=null).

20 . In July 2008, the government issued a document entitled The Provision of Schools and the Planning System: A Code of Practice for Planning Authorities, the Department of Education and Science, and the Department of the Environment, Heritage and Local Government. Despite the title, the document describes itself as a guideline under s. 28 of the 2000 Act (see p. 1).

21 . In 2010, the SO was maintained in the SDCC Development Plan 2010–2016 (Map 7 of the plan).

22 . On 8th June 2012, the council wrote to Ellier Developments Ltd (which was co-founded by the first named applicant) on behalf of the Department of Education to enter into negotiations to purchase the site.

23 . In 2014, the SO was maintained in the Ballycullen/Oldcourt Local Area Plan 2014 at Objective SSP1. At p. 37, an indicative layout for future development for the site was set out which clearly sets out the council's view of the feasibility of a school development on the site consisting of two buildings and three playing pitches. The lands to the south of Stocking Avenue on the eastern portion of the AAP as well as lands to the west of Ballycullen Road, south of the Oldcourt Road, remained largely undeveloped by the time of adoption of the 2014 LAP, due largely to the economic crash.

24 . On 18th September 2015, two submissions on the Draft South Dublin Development Plan 2016–2022 were made on behalf of the second named applicant.

25 . That plan was adopted in 2016 and the SO was maintained (2016–2022 development plan Including Variations 1 and 2 Map).

26 . On 13th April 2016, the first named applicant emailed the council requesting that the site be purchased or the designation removed. An enquiry was made into the progress of the matter with the Department.

27 . On 18th April 2016, the council emailed the first named applicant outlining the need for the site for a post-primary school in the area and noting that the selection process had been advanced and that the council would...