Killegland Estates Ltd v Meath County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 21 December 2023
• Neutral Citation: [2023] IESC 39
• Court: Supreme Court
• Docket Number: S: AP:IE: 2023/0011

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

Between/

Killegland Estates Ltd.

Applicants/Appellants

and

Meath County Council

Respondents

and

Cornelius Giltinane and Patricia Giltinane

Notice Parties

[2023] IESC 39

O'Donnell C.J.

Charleton J.

O'Malley J.

Woulfe J.

Baker J.

Hogan J.

Donnelly J.

S: AP:IE: 2023/0011

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Planning and development – Development plan – Inadequate reasons – Appellant challenging the validity of a decision of the respondent – Whether inadequate reasons had been given by the respondent in respect of the decision

Facts: The respondent, Meath County Council (the Council), in September 2021, adopted a new development plan, the Meath County Development Plan 2021-2027, by means of a resolution of the elected members. The effect of the decision was to change the land-use zoning of certain lands owned by the appellant, Killegland Estates Ltd (Killegland), at Killegland, Ashbourne, County Meath (by downzoning those lands from residential to community infrastructure) while at the same time rezoning certain nearby lands owned by the notice parties, Mr and Ms Giltinane, from rural to residential. Killegland challenged the validity of the decision on several grounds. The High Court (Humphreys J) rejected that challenge in a judgment delivered on 1 July 2022: [2022] IEHC 393. A certificate of leave to appeal to the Court of Appeal was sought pursuant to s. 50A of the Planning and Development Act 2000. That was refused by the High Court in a joint judgment delivered on 9 December 2022: [2022] IEHC 683. The Supreme Court granted leave to appeal to Killegland pursuant to Article 34.5.4° of the Constitution by a determination dated 28 March 2023: [2023] IESCDET 37. The claim made in the appeal was, in essence, that inadequate reasons had been given by the Council in respect of the decision having regard in particular to the fact that the de-zoning of the lands had adverse consequences for Killegland.

Held by Hogan J that adequate reasons were given by the elected members for their decision. Hogan J held that it was clear that they wished to preserve the lands for the development of a public park and at all times the supporters of that proposal in the development plan made their views well known. Hogan J said 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. Hogan J held that they took that decision principally for valid planning reasons in accordance with the terms of the 2000 Act and unlike cases such as Flanagan v Galway City and County Manager [1989] IR 66 and Griffin v Galway City and County Manager, High Court, 31 October 1990, they did not have regard to irrelevant considerations in a manner which was material and central to their decision. In the circumstances, Hogan J could not conclude that the de-zoning had the effect of infringing any relevant objectives delineated in either the National Planning Framework or the Regional Spatial and Economic Strategy. While understanding Killegland’s objections to the decision in as much as its lands presumably suffered a diminution in value as a result, Hogan J saw no basis in law by which the validity of that decision could properly be impugned.

Hogan J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 21 ^st day of December 2023

Part I — Introduction

Background

1 . Where the elected members of a local authority propose to de-zone land already zoned for residential development by the making of a new development plan what is the extent to which they are obliged to give reasons for their decision? And if the elected councilors decide to de-zone a (relatively) small infill site in an urban area would that in itself represent an unlawful breach of a key objective of the National Planning Framework? These are in essence the principal questions presented on this appeal. These issues arise in the following way.

2 . In September 2021 Meath County Council (“the Council”) adopted a new development plan, the Meath County Development Plan 2021–2027 (“the 2021 Development Plan”), by means of a resolution of the elected members. The effect of this decision was to change the land-use zoning of certain lands owned by the appellant company at Killegland, Ashbourne, County Meath (by downzoning those lands from residential to community infrastructure) while at the same time rezoning certain nearby lands owned by the notice parties from rural to residential. The appellant (“Killegland”) now challenges the validity of this decision on several grounds. The claim now made in this appeal is, in essence, that inadequate reasons have been given by the Council in respect of this decision having regard in particular to the fact that this de-zoning of the lands has had adverse consequences for Killegland.

3 . The Killegland lands comprise a 0.84 ha site at Ashbourne and were purchased by Killegland in May 2021 at a price which appears to reflect the pre-existing residential zoning. These lands were previously zoned A2 New Residential under the earlier Meath County Development Plan 2013–2019. This site is now zoned G1 Community Infrastructure under the new 2021 Development Plan. The lands owned by the notice parties (the ‘Giltinane lands’) comprise a 2.8 ha. site adjacent to the M2 motorway. The Giltinane lands were previously zoned RA Rural Area. This site had been zoned A2 New Residential under the 2021 Development Plan, but this decision was in turn subsequently reversed by a specific ministerial decision made pursuant to s. 31 of the Planning and Development Act 2000 (“the 2000 Act”), so that the lands in question reverted as a consequence to their original RA zoning.

4 . I pause here to note that I propose presently to explain the linkage between the Killegland lands and the Giltinane lands so far as the present appeal is concerned. For the moment it is sufficient to state that the notice parties have taken no part in these proceedings or in respect of this appeal.

5 . On the 18 ^th December 2019, a draft Development Plan for the 2020–2026 period was put on public display by the Council. So far as the Killegland lands were concerned, the plan proposed to retain the pre-existing zoning in respect of these lands. The name of the draft plan was later changed to the Draft Meath County Development Plan 2021–2027 due to delays caused by the Covid-19 pandemic. During the period of display, many submissions concerning the draft Development Plan were received by the Council, including a submission from the Office of the Planning Regulator (“OPR”). The OPR submission stressed the need for what was described as a “tiered” approach to zoning in line with the national policy objectives contained in the National Planning Framework (“NPF”). A large number of submissions were also received from elected members and the public, including from one of the Ashbourne local councillors, Cllr. Alan Tobin.

6 . In August 2020, the Chief Executive of the Council prepared a response to the various submissions received (including those from Killegland and the OPR) and concluded that no further change to the proposed zoning was recommended. In September 2020, a Notice of Motion (‘NOM’) 112 was brought by certain elected members of the Council which proposed changing the zoning of Killegland's lands from A2 New Residential to F1 Open Greenspace. This motion was amended so that the new zoning of the Killegland lands would be G1 Community Infrastructure. The councillors sponsoring the motion explained that the “dezoning of this small 3 acre [.08 ha.] site [is] critical to the development of a park in the area.” So far as the Giltinane lands were concerned, the councillors explained that:

“The residential zoning we would like moved to a site to the west of Churchfields that was part of the original land holding for that development. As per recommendations, we are told that we cannot zone additional land, but we can move residential lands to different locations.”

7 . This motion, alongside a separate motion NOM 114 (which sought instead to rezone the Giltinane lands to A2 New Residential) was duly passed by the elected members. In October 2020, the Chief Executive published a second report recommending no change in the zoning of the aforementioned lands. As she explained:

“The subject site is an infill site which would support the consolidation of development within the built-up area of Ashbourne. This is in accordance with national policy as set out in the [National Planning Framework] whereby National Policy Objective 3c requires 30% at least of all new homes to be delivered within the existing built-up footprint of settlements.”

8 . To put all of this in context, it may be observed that the 2021–2027 Meath Development Plan describes Ashbourne as the second largest town in Meath with a population of some 13,000 people (as per the 2016 Census) which is situated some 20km from Dublin. The town itself is bounded by the M2 motorway. The Killegland lands themselves lie between the centre of the town and the motorway. To the north lies the Broad Meadow River and there are two nearby residential developments, “Churchfields” and “Bourne View”. While Killegland argued that its lands constituted a classic in-fill site suitable for further residential development which would complement the existing developments, it also maintained that there were alternative options which would not necessitate the dezoning of the lands. A core theme of Killegland's complaint was that it had been singled out unfairly for such dezoning and that this had taken place against the advice of the Council officials and the Office of the Planning Regulator.

9 . It nevertheless seems clear the elected...