Killegland Estates Ltd v Meath County Council; McGarrell Reilly Homes Ltd v Meath County Council (No. 2)

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 09 December 2022
• Neutral Citation: [2022] IEHC 683
• Court: High Court
• Docket Number: [2021 No. 959 JR]

In the Matter of an Application Pursuant to 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

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, As Amended

Between

McGarrell Reilly Homes Limited and Alcove Ireland Eight Limited

Applicants

and

Meath County Council (No. 2)

Respondent

[2022] IEHC 683

[2021 No. 959 JR]

[2021 No. 964 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning and development – Leave to appeal – Points of exceptional public importance – Applicants seeking leave to appeal – Whether the applicants had advanced points of exceptional public importance

Facts: The High Court (Humphreys J), in Killegland v Meath County Council (No. 1) [2022] IEHC 393 and McGarrell Reilly v Meath County Council [2022] IEHC 394, refused orders seeking to quash the Meath County Development Plan. The applicants sought leave to appeal, advancing a total of fourteen points of alleged exceptional public importance: (i) question 1 in Killegland asks primarily about where reasons are to be found; (ii) question 2 in Killegland asks where the reasons are to be found if not specified in the decision; (iii) question 3 in Killegland asks whether there is a requirement to give specific reasons for disagreeing with the Chief Executive; (iv) question 4 in Killegland asks about the extent of the obligation to address a landowner’s submissions; (v) question 5 in Killegland asks what the legal consequence is where lands are up-zoned as a result of other lands being down-zoned; (vi) question 1 in McGarrell Reilly asks whether the tiered approach to zoning under the National Planning Framework embodied in Appendix 3 in particular applied to zoned lands or not; (vii) question 2 in McGarrell Reilly asks whether the obligation of consistency with the National Planning Framework and Regional Spatial Economic Strategy applies only to objectives or whether it applies to other texts; (viii) question 3 in McGarrell Reilly asks whether the RSES can lawfully require a planning authority to provide for a matter outside the lifetime of a given plan; (ix) question 4 in McGarrell Reilly asks what the standard of review is in assessing reasons where a local authority does not act consistently with the objectives of the NPF; (x) question 5 in McGarrell Reilly asks what the extent of the obligation to provide reasons is and where such reasons can be found in the context of zoning decisions; (xi) question 6 in McGarrell Reilly asks whether s. 10(8) of the Planning and Development Act 2000 precludes a legitimate expectation in relation to zoning of land; (xii) question 7 in McGarrell Reilly asks whether a landowner’s positive record of development is an irrelevant consideration; (xiii) question 8 in McGarrell Reilly asks whether the sequential approach in the Development Management Guidelines 2007 involves a distance approach or whether it involves other factors; (xiv) question 9 in McGarrell Reilly asks about the extent of reasons for departing from government guidelines, in particular the Development Management Guidelines 2007.

Held by Humphreys J that in accordance with the National Planning Framework, the distribution of new housing must be in accordance with a core strategy that forms a coherent whole when looking at all parts of the county. Humphreys J held that the county hierarchy in turn must be formed in the context of the regional and national housing hierarchy, so that no individual piece of land anywhere can be looked at in isolation, and everything joins up within an overall headline level of housing provision; this headline level had already been accounted for in other, unchallenged, parts of the plan. Humphreys J held that the fundamental problem for the applicants was that a challenge to the individual zoning of a particular piece of land in isolation from any challenge to the overall hierarchy and distribution of housing provision is a pointless exercise, because no lawful outcome can result in the court creating (or making any order that would facilitate the council in creating) additional housing provision out of thin air for the benefit of the applicants’ lands. Humphreys J held that any additional housing on their lands would breach the hierarchical and sequential approach set out in the unchallenged core strategy. Humphreys J held that the applicants in both cases had simply not engaged with that point.

Humphreys J dismissed the application for leave to appeal.

Application dismissed.

JUDGMENT of Humphreys J. delivered on the 9 ^th day of December 2022.

1 . In Killegland v. Meath County Council (No. 1) [2022] IEHC 393, ( [2022] 7 JIC 0106 Unreported, High Court, 1st July, 2022) and McGarrell Reilly v. Meath County Council [2022] IEHC 394, ( [2022] 7 JIC 0107 Unreported, High Court, 1st July, 2022), I refused orders seeking to quash the Meath County Development Plan. The applicants now seek leave to appeal, advancing an implausible total of fourteen points of alleged exceptional public importance. The law relating to leave to appeal is fairly well traversed and is referred to in written submissions. Both cases were very fact-heavy, and if one were to generalise, the elaborate legal superstructure that is now put forward gives the impression of being somewhat artificially imposed on top of that factual matrix for the purposes of the putative appellate process.

2 . More generally, the Supreme Court has noted in Irish Asphalt Ltd v. An Bord Pleanála [1996] 2 I.R. 179, [1996] WJSC-SC 1476 that the policy behind the restriction on appeal in the development context is that there should be a greater degree of certainty, and relatedly a greater degree of expedition, in the finalisation of planning judicial reviews.

3 . If, therefore, the statutory approach leans towards finality in respect of the micro-destabilisation of the planning situation caused by the further litigation of an issue in respect of an individual development consent, it must logically lean at least as far towards finality in the case of the macro-destabilisation relating to the quashing or otherwise of a more general planning instrument such as a city or county development plan. As put on behalf of the council, this question of finality impacts on “all citizens in County Meath” insofar as concerns “upholding the certainty of zoning in County Meath”. That does not of course mean that one cannot have leave to appeal in respect of a legal issue arising from a development plan, but the basis for doing so should be clear. This is not such a case.

Papers before the court

4 . In tandem with what was offered to the court at the substantive hearing, I had the benefit of materials placed on the ShareFile platform including as follows: in Killegland, submissions, books of authorities, judgments, exhibits, affidavits, a core book and pleadings, running to a total of 2,118 pages, and in McGarrell Reilly similar materials which amounted to 3,803 pages, making 5,921 pages of material in total.

The fundamental problem for the applicant

5 . The fundamental problem for both applicants is summarised essentially in para. 20 of the McGarrell Reilly judgment. In accordance with the National Planning Framework, the distribution of new housing must be in accordance with a core strategy that forms a coherent whole when looking at all parts of the county. The county hierarchy in turn must be formed in the context of the regional and national housing hierarchy, so that no individual piece of land anywhere can be looked at in isolation, and everything joins up within an overall headline level of housing provision. That headline level has already been accounted for in other, unchallenged, parts of the plan. The fundamental problem for the applicants is that a challenge to the individual zoning of a particular piece of land in isolation from any challenge to the overall hierarchy and distribution of housing provision is a pointless exercise, because no lawful outcome can result in the court creating (or making any order that would facilitate the council in creating) additional housing provision out of thin air for the benefit of the applicants' lands. Any additional housing on their lands would breach the hierarchical and sequential approach set out in the unchallenged core...