Malahide Community Council Ltd v Fingal County Council

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Lynch J.,Hamilton C.J.
• Judgment Date: 14 May 1997
• Neutral Citation: 1998 WJSC-SC 10165
• Docket Number: [S.C. Nos. 36 & 44 of 1995]
• Date: 14 May 1997

MALAHlDE COMMUNITY COUNCIL LTD v. FINGAL CO. COUNCIL

BETWEEN:

MALAHIDE COMMUNITY COUNCIL LIMITED

Applicant/Respondent

and

FINGAL COUNTY COUNCIL

Respondent/Appellant

and

GANNON HOMES LIMITED AND NASSANA LIMITED AND COMERAGHPROPERTIES LIMITED

Notice Parties/Appellants

1998 WJSC-SC 10165

HAMILTON C.J.

KEANE J.

LYNCH J.

36 & 44/95

THE SUPREME COURT

Synopsis:

Planning

Application for leave to apply for judicial review; draft development plan; green belt zones; objections and representations made to plan; two resolutions passed prior to draft becoming plan; one resolution to preserve green belt failed; second resolution passed to zone lands as residential; leave only granted to challenge second resolution in High court; function of courts in reviewing a development plan; whether relevant material before planning authority on which to base its decision; locus standi of applicant company; ss.19(7), 21A Local Government (Planning and Development) Act, 1963 Held: Judicial review claims dismissed; obiter: applicant company no locus stand) - [1997] 3 IR 383 Supreme Court: Hamilton C.J., Keane J., Lynch J. 14/05/1997

Malahide Community Council Ltd. v. Fingal County Council & Gannon Homes Ltd. & Ors.

Citations:

DRAFT CO DUBLIN DEVELOPMENT PLAN 1991

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(7)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21A

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S37

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S21A(2)

1 14th day of May 1997byHamilton C.J.

Hamilton C.J.

2 I have read the judgment about to be delivered by the Honorable Mr. Justice Lynch and insofar as it deals with the substantive issue raised in the appeal herein am in complete agreement with it and the orderproposed.

3 At the conclusion of his judgment he deals with a matter which is expressed by him to be obiter because it was not raised or referred to or argued in any way either before the High Court or thisCourt.

4 I would like to reserve my position on the matter until it has been fully argued in an appropriate case.

5 jud74

6 Lynch J.delivered the 14th day of May, 1997.

7 This is an appeal by the Respondent/Appellant and by the Notice Parties/Appellants from an order of the High Court (Kinlen J.) made on the 21st December 1994 pursuant to a written judgment delivered on the 19th December 1994. The said order provided as follows:

"The Court doth declare that the subject lands situate at Robswalls Malahide County Dublin comprising approximately 36 acres and referred to as change number 6 on map 7 of the DublinCounty Draft Development Plan 1993 (Amendments) are zoned B and G under the Dublin County Development Plan 1993

And it is ordered that Fingal County Council the Respondent herein do amend the Dublin County Development Plan 1993 to depict the zoning of the said subject lands as B and G."

8 The Applicant/Respondent is the Malahide Community Council Limited and is referred to in this judgment as the Applicant. The Respondent/Appellant is the Fingal County Council as successor to the Dublin County Council and is referred to in this judgment as the County Council. The Notice Parties/Appellants are referred to as the Notice Parties. The zoning B and G imputes the objective "to preserve a green belt between development areas". The said 36 acres or thereabouts of the lands of Robswalls are referred to as the subjectlands.

THE FACTS

9 The Draft County Dublin Development Plan 1991 originally zoned the subject lands B and G. The Draft Development Plan was advertised and displayed as required by law and numerous objections and representations were made inrelation thereto including representations by the third named notice party. Many resolutions were proposed on foot of such objections and representations for amendments to the said Draft Plan in relation to many different areas. One such resolution related inter alia to the subject lands and was in the following terms:

"In order to facilitate the permanent realisation of the green belt between Malahide and Portmarnock and with a view to providing the necessary amenity land for both passive and active recreation, Dublin County Council resolve that the lands at Robswalls, Malahide outlined in red on the attached map (approximately 147 acres) and which have been signed for identification purposes by the proposers, be zoned for residential where marked yellow not more than 250 dwellings and to retain B and G recreational/open space where markedgreen."

10 The making and amendment of a development plan is a reserved function. Section 19(7) of the Local Government (Planning and Development) Act 1963. The portions of lands referred to in the said resolution to be zoned "for residential where marked yellow" is in fact the subject lands. The foregoingmotion was passed by the Councillors on the 29th April 1993 by 38 votes to 24 votes.

11 The County Council in compliance with Section 21A of the 1963 Act (inserted by Section 37 of the Local Government (Planning and Development) 1976) advertised the proposed amendment inter alia and made it available for inspection and received and circulated to the Councillors 8,462.representations in relation thereto. There was considerable opposition to and support for the change of zoning from B and G to residential in relation to the subject lands. Following on compliance with section 21A of the Act four motions relating to the subject lands were proposed for consideration by the Councillors at meetings scheduled for September 1993 to consider and debate the various resolutions for amendment passed by the County Council in the Spring of 1993. The four motions relating to the subject lands were reached on the 27th September 1993. The first such motion was proposed by Councillor Bernadette Malone (who swore two affidavits in these proceedings) and seconded by Councillor S. Ryan and was in the following terms:

"Dublin County Council hereby resolves that the lands referred to as 6 on map no. 7 of the Dublin County Council DraftDevelopment Plan Review 1993 Amendments be zoned B and G to preserve green belt.".

12 It is not necessary to quote the other three motions as they were broadly similar in terms. Only three of these four motions were actually moved at the meeting of the Council on the 27th September 1993 and each was defeated by 33 votes to 31 votes following which the Chairman then declared the proposed amendment change no. 6 map no. 7 confirmed. Following this meeting a minor amendment to the written objectives in the Draft Plan was made. Paragraph 2.8.10 headed "GreenBelts" had provided:

"It is the policy of the Council to retain the individual physical character of towns and development areas by the designation of green belt areas. This policy is to protect the special amenity value of these areas which provide a visual break between urban areas. Green belts exist between Swords and Malahide, between Malahide and Portmarnock, between Portmarnock and Baldoyle, between Finglas and Blanchardstown, between the three western towns Blanchardstown, Lucan/Clondalkin, Tallaght and between West Tallaght and Saggart and between Shankhill and Bray."

13 That paragraph was made to be paragraph 2.8.10.i and there was then added to it paragraph 2.8.10 ii as follows:

"It is an objective of the Council that a plan be drawn up to maximise the benefit of each green belt zone to ensure the integrity and survival of these essential areas."

14 This amendment was presumably made pursuant to Section 21A (2) of the Act which provides inter alia "they may, as they shall think fit, make the proposed plan or proposed variation, as the case may be, with or without the proposed amendment or with such other amendment (not being an amendment providing for the preservation of a structure or public right of way) as, having regard to the particular circumstances, they consider appropriate." No point as to the making of this amendment to the written objectives of the plan arose either in the High Court or in this Court.

15 The Dublin County Draft Development Plan as amended came before the County Council again on the 10th December 1993 for adoption and was duly adopted by the Councillors whereupon it became the Dublin County Development Plan 1993. In the meantime just before the adoption on the 10th December 1993 of the Draft Plan as the actual plan and in fact on the 6thDecember 1993 the Applicant applied ex parte and therefore without the knowledge of the County Council for liberty to bring proceedings by way of judicial review in relation to the defeat by the vote of the Councillors by 33 votes to 31 votes on the 27th September 1993 of the three motions which had been moved on that date in relation to the subject lands. On foot of that application supported by a statement dated the 2nd December 1993 grounding the application and affidavits sworn the 1st December 1993 by Michael Ryan, Secretary of the Applicant and by Councillor Bernadette Malone an order was made by the High Court (Lavan J.)

"That the Applicant do have leave to apply for orders of certiorari, declaration and injunction as set forth at paragraph D of the said statement dated the 2nd day of December 1993 as amended by way of application for judicial review on the grounds set forth at E in the aforesaid statement."

16 The orders of certiorari, declaration and injunction set forth at paragraph D of the said statement were as follows:

17 i "(i) Certiorari by way of application for judicial review in respect of the refusal of the Respondent on 27th September 1993 torescindits decision of 29th April 1993 amending the 1991 Draft Development Plan for County Dublin by rezoning lands situate at Robswalls, Malahide, County Dublin, from green belt between development areas to residential being change no. 6 depicted on map no. 7 of the Dublin County Draft Development Plan 1993

18 (ii) a...