Malahide Community Council Ltd v Fingal County Council

JurisdictionIreland
JudgeMr. Justice Kinlen
Judgment Date19 December 1994
Neutral Citation1995 WJSC-HC 5096
Docket NumberRecord No. 362 J.R./1993
CourtHigh Court
Date19 December 1994
MALAHIDE COMMUNITY COUNCIL LTD v. FINGAL CO COUNCIL

BETWEEN

MALAHIDE COMMUNITY COUNCIL LTD
APPLICANT

AND

FINGAL COUNTY COUNCIL
RESPONDENT

AND

GANNON HOMES LIMITED, NASSANA AND COMERAGH PROPERTIES LIMITED
NOTICE PARTIES

1995 WJSC-HC 5096

Record No. 362 J.R./1993

THE HIGH COURT

Synopsis:

PLANNING

Plan

Contents - Variation - Validity - Challenge - Resolution of planning authority exercising reserved function - Resolution that G green-belt area be rezoned for residential purposes - Necessity for provision of housing not considered - Alteration facilitated ambitions of developers - Separate agreement between developers and sports clubs - Provision of sports facilities only subject discussed prior to resolution - Housing requirements ignored by planning authority - Resolution passed ~ultra vires~ planning authority - Local Government (Planning and Development) Act, 1963, s. 19 - (1993/362 JR - Kinlen J. - 19/12/94)

|Malahide Community Council Ltd. v. Fingal County Council|

TRIBUNAL

Decision

Basis - Information - Absence - Plan - Amendment - Planning authority - Development plan altered to permit use of land for residential purposes - Necessity for additional housing not considered by authority - Improper motive for amendment - Procurement of recreational facilities to be provided by developer who wished to build dwellings - (1993/362 JR - Kinlen J. - 19/12/94)

|Malahide Community Council Ltd. v. Fingal County Council|

Citations:

DUBLIN COUNTY DEVELOPMENT PLAN DRAFT 1991

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

RSC O.84 r18(2)

RSC O.84 r20(7)

RSC O.84

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

SHARPE LTD V DUBLIN CO COUNCIL 1989 IR 701

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

ASSOCIATED PROVINCIAL PICTUREHOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

R V CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155

LISTOWEL UDC V MCDONAGH 1968 IR 312

SMITH V EAST ELLOE RURAL DISTRICT COUNCIL 1956 AC 736

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22

GREAT PORTLAND ESTATES V WESTMINSTER CITY COUNCIL 1984 3 AER 744

TOWN & COUNTRY (LOCAL PLANS FOR GREATER LONDON) REG 1974 UK

TOWN & COUNTRY PLANNING ACT 1971 S29(1) UK

TOWN & COUNTRY PLANNING ACT 1971 SCHED IV

VASILIOU V SECRETARY OF STATE FOR TRANSPORT 1991 2 AER 77

FLANAGAN V UCD 1988 IR 724

GLENCAR EXPLORATION PLC V MAYO CO COUNCIL 1993 2 IR 237

HUNTSGROVE DEVELOPMENTS LTD V MEATH CO COUNCIL 1994 2 ILRM 36

MACPHARTHALAIN V COMMISSIONERS OF PUBLIC WORKS 1992 1 IR 111

EAST DONEGAL CO-OP V AG 1970 IR 317

HARRINGTON, STATE V WALLACE 1988 IR 290

GRANGE V DUBLIN CO COUNCIL 1989 IR 296

LOCAL GOVT ACT 1955 S4

LOCAL GOVT ACT 1955 S26(3)(c)

LOCAL GOVT ACT 1955 S19(7)

1

Judgment of Mr. Justice Kinlen delivered the 19th day of December 1994

2

On Monday the 6th December, 1993 Mr Justice Lavan gave leave to apply for Orders of Certiorari, a Declaration and Injunction as set forth in paragraph D of the Statement dated the 2nd December, 1993 as amended by way of application for Judicial Review on the grounds set forth at E in the aforesaid Statement. The reliefs sought are as follows:-

3

i "(i) Certiorari by way of application for Judicial review in respect of the refusal of the Respondent on the 27th September, 1993 to rescind its decision of the 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 number 6 depicted on map number 7 of the Dublin County Draft Development Plan, 1993;

4

(ii) A Declaration by way of an application for Judicial Review that the purported decision of the Respondent made on the 27th September, 1993 was ultra vires, and/or an abuse of its jurisdiction, void and of no force or effect.

5

(iii) A Declaration by way of an application for Judicial Review that the purported decision of the Respondent made on the 27th September, 1993 was not properly disposed of by the Respondent on the 27th September, 1993.

6

(iv) An Injunction by way of an Application for Judicial Review restraining the Respondent from incorporating change number 6 as depicted on map number 7 of the Dublin County Draft Development Plan for County Dublin.

7

(v) An Injunction by way of an application for Judicial Review restraining the Respondent from adopting a Development Plan for County Dublin incorporating change number 6 as depicted on map number 7 of the Dublin County Draft Development Plan until such time as the Respondent herein considers the Motion to rescind the decision on the 29th April, 1993 in accordance with the proper planning and development of the area concerned.

8

(vi) Further or other relief.

E. GROUNDS UPON WHICH RELIEF IS SOUGHT:
9

(i) Certiorari by way of Judicial Review in respect of the decision of the Respondent dated the 27th September, 1993;

10

1. The Respondent is a County Council and is the Planning Authority of the County of Dublin (it has since become the "Fingal County Council". This change of nomenclature agreed by all parties does not change the nature or purpose of the proceedings).

11

2. The Respondent acted ultra vires its powers under the Local Government (Planning and Development) Act, 1963as amended by the Local Government (Planning and Development) Act, 1976in making its purported decision refusing to rescind its decision amending the 1991 Draft Development Plan for County Dublin by rezoning lands Robswalls, Malahide, County Dublin from "Green Belt" to "Residential" being change number 6 as depicted on map number 7 of the Dublin County Draft Development Plan 1993.

12

3. The purported decision of the Respondent to rezone the lands referred to herein from "Green Belt" to "Residential" was an abuse of its jurisdiction.

13

4. The purported decisions of the Respondent to rezone the lands referred to herein from "Green Belt" to "Residential" and to refuse to rescind same were inconsistent with and disregarded the objectives stated in the 1991 Draft Development Plan for County Dublin at paragraphs 2.8.10(i) and 5.5.15(i) and 2.8.13(i).

14

5. The decisions of the Respondent aforesaid were unreasonable.

15

6. The Respondent in making the purported decision considered matters which were irrelevant to planning considerations.

16

7. The Respondent in making its purported decisions did not restrict itself to considering only the proper planning and development of the area of which the Respondent is the Planning Authority.

17

8. The terms relied on in paragraph E herein are repeated mutatis mutandis in respect of the application for this relief.

18

(ii) Declaratory relief:

19

Having regard to the nature of the matters in respect of which relief is sought by way of Orders of Certiorari, the nature of the Respondent against whom relief may be granted and all circumstances of the case, it would be just and convenient for the Honourable Court to grant the declaratory relief sought. The Applicant further relies on Order 84 Rule 18(2) of the Rules of the Superior Courts.

20

(iii) Injunctive relief:

21

Having regard to the nature of the matters in respect of which relief is sought by way of Orders of Certiorari, the nature of the Respondent against whom relief may be granted in all the circumstances of the case, it would be just and convenient for this Honourable Court to grant the injunctive relief sought. The Applicant further relies upon Order 84 Rules 18(2) and 20(7) of the Rules of the Superior Courts.

22

Mr Philip O'Sullivan S.C. for the Applicant states this latter paragraph does not apply and he is not seeking relief under it. The Court considered the Affidavit of Bernadette Malone dated the 1st December, 1993 and a further Affidavit of Bernadette Malone dated the 15th February, 1994, an Affidavit of Michael Ryan dated the 1st December, 1993, an Affidavit of William Murray dated the 17th December, 1993, an Affidavit of Michael Ryan dated the 22nd February, 1994, an Affidavit of William Murray dated the 13th April, 1994, an Affidavit of Kiaran O'Malley dated the 23rd February, 1994 and the various exhibits mentioned and exhibited in the said Affidavits.

23

The Grounds of Opposition (required pursuant to Order 84 of the Rules of the Superior Courts) are dated the 17th December, 1993 and read as follows:-

24

1. The Respondent did not act ultra vires its powers under the Local Government (Planning and Development) Act, 1963as amended in making its decision refusing to rescind its decision amending the 1991 Draft Development Plan by rezoning the subject lands from "Green Belt" to "Residential".

25

2. The Respondent says that at all material times it acted in full compliance with its statutory obligations pursuant to the Local Government (Planning and Development) Act, 1963as amended in drafting the said Development Plan.

26

3. The Respondent says that in reviewing the Development Plan and in considering the zoning or rezoning of the subject lands it was entitled to have regard to all relevant matters including, inter alia.

27

(i) The suitability of the subject lands for "Residential" or "Green Belt" zoning.

28

(ii) The adequacy or otherwise of the supply of low density housing in the area.

29

(iii) The adequacy or otherwise of "Open Space/Green Belt" lands in the area.

30

(iv) The adequacy or otherwise of recreational lands or facilities for the current or projected population of the area.

31

(v) The potential cost of the provision of new or additional recreational facilities in the area.

32

(vi) The availability of funding from the Respondent's resources to provide such facilities and the period of time within which such facilities were likely to be provided.

33

(vii) Any...

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