Killegland Estates Ltd v Meath County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 01 July 2022
• Neutral Citation: [2022] IEHC 393
• Court: High Court
• Docket Number: [2021 No. 959 JR]

In the Matter of Sections 50 and 50A of the Planning and Development Act 2000 as Amended

Between

Killegland Estates Limited

Applicant

and

Meath County Council

Respondent

and

Cornelius Giltinane and Patricia Giltinane

Notice Parties

[2022] IEHC 393

[2021 No. 959 JR]

[2021 No. 144 COM]

THE HIGH COURT

COMMERCIAL

JUDGMENT of Humphreys J. delivered on Friday the 1st day of July, 2022

1 The applicant is a landowner in Ashbourne who challenges the Meath County Development Plan insofar as the downzoning of its lands is concerned, that is, a change in zoning whereby a more intense use of land is reduced to a less intense use. Most rezoning historically has been the other way. The proposal to zone the applicant's lands was passed at the same time as a separate proposal to rezone other lands owned by the notice parties. The main thrust of the submissions related to an alleged lack of reasons although other points were also advanced.

2 The previous development plan was adopted in December, 2012 and came into operation in January 2013. That plan (the Meath County Development Plan 2013 – 2019) sets out a series of land use zoning objectives. The relevant one is A2, new residential: “[t]o provide for new residential communities with ancillary community facilities, neighbourhood facilities and employment uses as considered appropriate for the status of the centre in the Settlement Hierarchy.”

3 In the Development Plan 2013–2019, the applicant's lands were zoned A2 (New Residential). The notice parties' lands were zoned RA (Rural Area).

4 The Development Plan review process commenced in December, 2016.

5 A Regional Spatial and Economic Strategy (RSES) was adopted for the relevant region, the Eastern and Midland region, on 28 ^th June, 2019.

6 A Strategic Environmental Assessment (SEA) report, titled Preliminary Draft Meath County Development Plan (Draft CDP) 2020–2026: Strategic Environmental Assessment (SEA) Environmental Report, Environmental Assessment: Built Environment, by Brady Shipman Martin was published by the council on 6 ^th December, 2019 for the purposes of reg. 13C of the Planning and Development Regulations 2001 ( S.I. No 600 of 2001) as amended in particular by the Planning and Development (Strategic Environmental Assessment) Regulations 2004 ( S.I. No. 463 of 2004).

7 On 18 ^th December, 2019, the Draft Meath County Development Plan 2020–2026 went on public display. In relation to these applicant's lands, it proposed retaining the pre-existing zonings.

8 2,452 submissions were received during the period of display up to 6 ^th March, 2020.

9 Among the submissions made were:

• (i). a submission from the Office of the Planning Regulator (“OPR”) in relation to the need for a tiered approach to zoning and

• (ii). a submission from Cllr Alan Tobin, one of the Ashbourne local councillors, submission No. MH-C5-834, to which we will return.

10 Due to the Covid-19 emergency, the period for making the development plan was extended under s. 251A of the Planning and Development Act 2000. In consequence the citation of the draft plan was changed to the Draft Meath County Development Plan 2021–2027.

11 The Chief Executive reported on 13 ^th August, 2020 in relation to the submissions proposing to retain the existing zoning of both the applicant's and the notice parties' lands. That report then came before the elected members and a number of motions were proposed seeking to change aspects of the draft plan. We will return to those in more detail later.

12 The Chief Executive then prepared a report in October 2020 in relation to the various motions again seeking to retain the existing zonings. The members then voted on the motions to amend the draft plan at a number of special meetings in the course of which a crucial motion No. 112 was proposed to change the zoning of the applicant's lands from A2 (New Residential) to F1 (Open greenspace). An amendment was moved from the floor and carried to change the original proposal in motion 112 so that the new zoning would be G1 (Community Infrastructure). The motion as amended was passed. A separate motion sought to rezone the notice party's lands to A2 (New Residential).

13 On 23 ^rd December, 2020, the applicant signed a contract to purchase the lands. That sale closed on 12 ^th May, 2021 and very shortly thereafter the applicant submitted a planning application to build 31 dwellings and carry out associated works on the lands. That was submitted on 28 ^th May, 2021 under reference No. 21/1037.

14 The material amendments made to the draft plan were placed on public display on 31 ^st May, 2021 for a period up to 29 ^th June, 2021. Those attracted 308 submissions again including the OPR on 29 ^th June, 2021 as well as Transport Infrastructure Ireland on 22 ^nd June, 2021.

15 The OPR recommended that the Development Plan be made without 12 of the material amendments. Among the proposed amendments being sought to be excluded was the change in the notice parties' lands from RA to A2. No recommendation was made regarding the downzoning of the applicant's lands. Similarly, the Transport Infrastructure Ireland submission related only to the notice parties' lands.

16 The applicant also made a submission via Thornton O'Connor Planning Consultants (reference no. MH-C52-274, dated 29 ^th June, 2021) arguing for the reinstatement of the pre-existing zoning.

17 On 12 ^th August, 2021, the Chief Executive prepared a report on the submissions received. That was then considered at a series of decisive special meetings of the council which occurred in the period 20 ^th – 22 ^nd September, 2021.

18 On 20 ^th September, 2021, at the first of those meetings, the members decided by a majority (19 votes to 15) to reject the Chief Executive's recommendation to reinstate the previous zonings of both the applicant's lands and the notice parties' lands.

19 It is apparent from the transcript of the meetings of September 2021 that what the members voted on when considering material amendment 8 (MA08) was the Chief Executive's recommendation that the Development Plan should be made without that amendment. The vote was to reject that recommendation.

20 At the end of the series of special meetings, the Meath County Development Plan 2021–2027 was formally adopted on 22 ^nd September, 2021.

21 On 29 ^th September, 2021, the Chief Executive informed the OPR that the Development Plan had been made without all of the OPR's recommendations being incorporated.

22 On 20 ^th October, 2021, the OPR wrote to the relevant Minister of State, the Minister for Local Government and Planning, setting out a recommendation that a direction under s. 31 of the 2000 Act should be issued in respect of the notice parties' lands, but not the applicant's lands.

23 On 22 ^nd October, 2021, the council granted the applicant's planning application for the lands in question. The new Development Plan had not formally come into operation at that stage, so notwithstanding that the grant of permission would have essentially nullified the decision by the council to downzone the lands, the application was dealt with on the basis of the Development Plan as it stood at that particular point in time. A subsequent change in the Development Plan would have to be factored in on appeal. Any decision has to be made in the light of the law as it stands at that particular point.

24 On 2 ^nd November, 2021, the Minister gave notice of an intention to issue a direction under s. 31 of the 2000 Act relating to the notice parties' lands, again this did not impact on the applicant's lands.

25 The Development Plan came into force on 3 ^rd November, 2021.

26 The adopted plan was accompanied by a number of documents including:

• (i). an SEA statement, titled Meath County Development Plan (Draft CDP) 2021–2027: Strategic Environmental Assessment (SEA) Statement, Environmental Assessment: Built Environment, by Brady Shipman Martin dated November, 2021, containing Chapter 1 on an SEA statement, Chapter 2 on environmental considerations, Chapter 3 on the Environmental Report and submissions and observations, Chapter 4 on consideration of alternatives and the Development Plan, and Chapter 5 on monitoring measures and reporting – this is the statement for the purposes of reg. 13I of the 2001 regulations;

• (ii). an SEA environmental report, also dated November 2021, which describes itself as Volume 2 – this is basically a non-statutory update of the 2019 environmental report, not required by the regulations but nonetheless supplementing the SEA statement; and

• (iii). an SEA non-technical summary descried as Volume 1.

27 The draft ministerial direction went on public display on 10 ^th November, 2021 and submissions were invited.

28 The statement of grounds in the present proceedings was filed on 11 ^th November, 2021. The primary relief sought is an order of certiorari by way of application for judicial review quashing the decision of the council on 22 ^nd September, 2021 to make the Meath County Development Plan 2021–2027 so as to include material alteration MA08, which provided for a change of zoning of lands owned by the applicant at Killegland, Ashbourne, County Meath from A2 (New Residential) to G1 (Community Infrastructure).

29 On 18 ^th November, 2021, a number of third party appeals to the board were made against the grant of permission reference ABP-311978-21. Those appeals remain outstanding. Presumably the board has taken the prudent course of holding off on processing them in the light of the challenge before the courts, a course I would commend in such a situation, for a host of reasons.

30 Submissions on the draft direction closed on 23 ^rd November, 2021 and the Chief Executive prepared a report which was communicated to the Minister.

31 On 28 ^th January, 2022, the Minister issued a s. 31 direction which was self-executing and had the effect of reinstating the...