O'Leary v Dublin County Council

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 16 May 1988
• Docket Number: [1987 No. 348 JR]
• Date: 16 May 1988

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...