O'Leary v Dublin County Council

JurisdictionIreland
Judgment Date16 May 1988
Date16 May 1988
Docket Number[1987 No. 348 JR]
CourtHigh Court
O'Leary v. Dublin County Council
Jeremiah O'Leary, Josephine Costello, Seamus Clarke, Patrick Dorris, Noel Hughes, Paul Muldowney, Denis O'Mahony, Niall O'Connell, Joseph Kelly, Declan Verdon, Patricia Bryan, Declan McGovern, Maura Griffin, Sarah O'Brien, Dolores Kavanagh, Barbara Nalty, Nora O'Connor, Edward P. Kellett and Aidan Gorby
Applicants
and
The County Council of the County of Dublin, Respondent
[1987 No. 348 JR]

High Court

Local government - Planning - County development plan - Area designated in plan as a high amenity area - Proposed location by County Council of halting site within area - Whether proposed development a material contravention of development plan - Whether proposed development ultra vires powers of County Council - Local Government (Planning and Development) Act 1963 (No. 28) ss. 4, 19 and 39.

Section 4, sub-s. 1 (b) of the Local Government (Planning and Development) Act, 1963, provides that any "development by the council of a county in the county health district" shall be an exempted development for the purposes of the Act. However section 39, sub-s. 1, prohibits the council from effecting any development in its county health district "which contravenes materially the development plan."

Paragraph 2.26 of the Dublin County development plan, 1983, provides that areas of high amenity include "areas fringing waterways, both river and canal." In addition it declares that "it will generally be the policy of the council to prohibit development" in such areas, but that in certain cases the council will consider applications for development which relate to uses pertinent to coastal or riverside recreation.

The respondent proposed, in March, 1986, to provide a site for the settlement of travelling people at Cherryfield Linear Park which was in close proximity to the river Dodder. The site was intended to accommodate five families at any one time.

The applicants, who were residents of the areas adjoining the park, sought, by way of judicial review, a declaration that the proposed development would be a material contravention of the development plan and "ultra vires" the powers of the respondent. The respondent maintained that the proposal did not involve a material contravention of the plan because, "inter alia," it envisaged development of only a small section of a large high amenity area.

Held by O'Hanlon J., in making the declaration sought, 1, that, were a private developer to argue that the area involved in his project was small in relation to the area comprised in a particular high amenity area and was thus not a material contravention of a development plan, the argument would be rejected. In a case such as the instant case, the requirements of the planning law had to be applied with as much stringency against the local authority as they would be against a private developer.

Judicial Review.

The facts have been summarised in the headnote together with the relevant statutory provisions.

On the 2nd December, 1987, the applicants applied for and obtained in the High Court (Egan J.) leave to apply for judicial...

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10 cases
  • Duffy v Waterford Corporation
    • Ireland
    • High Court
    • 21 July 1999
    ...ACT 1963 S20 LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21 LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22 O'LEARY V DUBLIN CO COUNCIL 1988 IR 150 MCGARRY, AG V SLIGO CO COUNCIL 1991 1 IR 99 TENNYSON V DUN LAOGHAIRE CORP 1991 2 IR 527 WILKINSON V DUBLIN CO COUNCIL 1991 ILRM 605 FERR......
  • Four Districts Woodland Habitat Group and Others v an Bord Pleanála and Others
    • Ireland
    • High Court
    • 21 June 2023
    ...of scope for significant judgement, contravention or otherwise is a matter of law for the court: (i) O'Leary v. Dublin County Council [1988] IR 150 – a park was zoned as a High Amenity Area and “Caravan Park-Residential” was not permitted, hence a halting site was a material contravention. ......
  • Byrne v Fingal County Council
    • Ireland
    • High Court
    • 2 August 2001
    ...(PLANNING & DEVELOPMENT) ACT 1976 S39 LOCAL GOVT ACT 1991 S45 LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24 O'LEARY V DUBLIN CO COUNCIL 1988 IR 150 ROUGHAN V CLARE CO COUNCIL UNREP BARRON 18.12.1996 1997/6/2213 CITY& COUNTY MANAGEMENT (AMDT) ACT 1955 S2(1) CITY& COUNTY MANAGEMENT (AMDT)......
  • Wendy Jennings and Adrian O'Connor v an Bord Pleanála, Ireland and The Attorney General
    • Ireland
    • High Court
    • 17 February 2023
    ...County Council [1998] IEHC 19 (5th February, 1998). 171 A statutory EIA procedure no longer used. 172 O'Leary v Dublin County Council [1988] IR 150. 173 ( Roughan v Clare County Council High Court unreported 18th December, 174 See below. 175 Attorney General (McGarry) v Sligo County Council......
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