McCaughey Developments Ltd v Dundalk Town Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 10 May 2011
• Neutral Citation: [2011] IEHC 193
• Docket Number: [No. 539 JR/2010]
• Court: High Court
• Date: 10 May 2011

[2011] IEHC 193

THE HIGH COURT

[No. 539 JR/2010]

McCaughey Developments Ltd v Dundalk Town Council

IN THE MATTER OF SECTION 50 and 50 A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS INSERTED BY SECTION 13 OF THE PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT, 2006) AND IN THE MATTER OF AN APPLICATION

BETWEEN

McCAUGHEY DEVELOPMENTS LIMITED

APPLICANT

V.

DUNDALK TOWN COUNCIL

RESPONDENT

RSC O. 84 r24

PLANNING & DEVELOPMENT ACT 2000 S50(6)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

FARRELL & FORDE v LIMERICK CO COUNCIL 2010 1 ILRM 99 2009/21/5073 2009 IEHC 274

PLANNING & DEVELOPMENT ACT 2000 S50(2)(A)

PLANNING & DEVELOPMENT ACT 2000 S12(11)

P & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

PLANNING & DEVELOPMENT ACT 2000 S10(8)

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

P & F SHARPE LTD & GROVE DEVELOPMENTS LTD v DUBLIN CITY & COUNTY MANAGER & DUBLIN CO COUNCIL 1989 IR 701 1989 ILRM 565

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955

PLANNING & DEVELOPMENT ACT 2000 S12(15)

PLANNING & DEVELOPMENT ACT 2000 S50(9)

PLANNING AND ENVIRONMENTAL LAW

Development plan

Leave to apply for judicial review - Planning - Extension of time - Principles to be applied - Delay in instituting proceedings - Rezoning of land from residential to recreational - Mapping error - Land zoning objective - Whether decision to redesignate applicant's lands irrational - Public consultation process - Whether applicant denied opportunity to make submissions on designation of land - Whether fair procedures utilised in designation of applicant's land - Whether contrary to natural and constitutional justice - O'Keeffe v An Bord Pleanála [1993] 1 IR 39 and P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701 considered - Planning and Development Act 2000 (No30), s 50 - Certiorari granted (2010/539JR - Hedigan J - 10/5/2011) [2011] IEHC 193

McCaughey Developments Ltd v Dundalk Town Council

Mr. Justice Hedigan

1 The applicant is a limited liability company engaged in property development and is the owner of lands at Lower Point Road, Dundalk, Co Louth. It's registered office is located at Carrick Road, Dundalk, Co Louth. The respondent is the Town Council with responsibility for the administrative area of Dundalk, Co Louth.

2. The relief's sought by the applicant are as follows:-

2 i (i) An order of certiorari quashing the decision made by resolution of the Elected Members of the respondent believed to have been taken on 25^th November, 2009, to make the Dundalk and Environs Development Plan 2009-2015, which Plan includes a land zoning objective "RAO" (Recreation Amenity and Open Space) in respect of the Applicant's lands at Lower Point Road, Dundalk, County Louth.

3 ii (ii) A Declaration that the decision of the Respondent to make the Dundalk and Environs Development Plan 2009-2015, which contains a land use zoning objective of "RAO" (Recreation, Amenity and Open Space) in respect of the Applicant's said lands is irrational, invalid, ultra vires and of no legal effect.

4 iii (iii) A Declaration that the decision of the Respondent to make the Dundalk and Environs Development Plan 2009-2015, which contains a land use zoning objective of "RAO" (Recreation, Amenity and Open Space) in respect of the Applicant's said lands was made and brought into effect in breach of the Applicant's legitimate expectation that its lands would be zoned residential and in deliberate breach of the Applicant's rights to natural and constitutional justice.

5 iv (iv) A Declaration that the failure by the Elected Members of the Respondent to set out in its resolution to make the Dundalk and Environs Development Plan 2009-2015 the reasons for zoning the Applicant's lands "RAO" in the teeth of two recommendations of the Respondent's Manager that the lands be zoned "RES 1" renders the said Plan invalid in that regard.

6 v (v) A Declaration that the Respondent and/or the Elected Members of the Respondent were guilty of negligence and misfeasance in public office in passing the said resolution to make the Dundalk and Environs Development Plan 2009-2015, in circumstances where the Plan includes a land use zoning objective of "RAO" (Recreation, Amenity and Open Space) in respect of the Applicant's lands at Lower Point Road, Dundalk, County Louth.

7 vi (vi) Damages pursuant to Order 84, rule 24 of the Rules of the Superior Courts and/or the inherent jurisdiction of this Honourable Court for misfeasance in public office and/or negligence on the part of the Respondent in making and/or allowing to be made the Dundalk and Environs Development Plan 2009-2015, in circumstances where the said plan includes a land use zoning objective of "RAO" (Recreation, Amenity and Open Space) in respect of the Applicant's lands at Lower Point Road, Dundalk, County Louth.

8 vii (vii) If necessary, an Order providing for the discovery of documentation which are or have been in the power, possession or procurement of the Respondent and which are relevant to any issue in these proceedings.

9 viii (viii) If necessary, an Order extending the time for the making of this application.

10 ix (ix) Further or other Order's of relief.

11 x (x) Liberty to file further Affidavits.

12 xi (xi) Costs.

13 2 3.1 The applicant is a property development company and the owner of a plot of land within the functional area of the respondent. The applicant purchased this plot of 10.85 acres from the Dundalk Port Company in March, 2006, for €1.7 million. In the Dundalk and Environs Development Plan 2003-2009, the plot in question had been zoned "RES1" (residential). The lands were purchased with the intention of securing planning permission to carry out residential development. At the time when the applicant purchased the lands, there were two issues that impacted on the development potential of the lands. The first related to access the second issue was the use of part of the lands as a playing field by Quay Celtic Football Club. In relation to the access issue the respondent agreed to sell a strip of land to the applicant in order to facilitate access to the applicant's lands. The agreed purchase price was €155,000. Planning permission was granted on 16^th June, 2008, by the respondent for an access road into the lands. Quay Celtic Football Club were compensated by the applicant paying for the construction of an all-weather training area at Quay Celtics Football ground at a cost of approximately €350,000.

14 3 3.2 In July 2009 the Dundalk and Environs Development plan 2009-2015 went on display. On inspection of the Draft Plan the applicant's managing director, Mr Martin McCaughey discovered that the zoning of the applicants land was changed to "RAO" (recreation, amenity and open space). This changing in zoning dramatically effected the development potential of the lands. In effect, residential development would not be possible. The respondent accepts that in the process of making the 2009 development plan there was a mistake in relation to the applicant's lands. Specifically, when the first draft of what ultimately became the plan was published, there was a mapping error which resulted in RAO zoning being applied to the plot in question. The intention had been to continue to apply RES1 zoning to the plot. The applicant noticed the change and made contact with the town clerk Mr Pentony who admitted the mistake in relation to the applicant's lands, and said that the applicant would have to make a submission with a view to having the RES1 zoning restored. On 9^th July, 2009, the applicant furnished a detailed submission to the respondent objecting to the proposal to change the zoning of the applicant's lands from residential to recreational.

15 4 3.3 The draft plan came before the elected members of Louth County Council and Dundalk Town Council on 15^th and 22^nd September, 2008, at joint meetings. A report was prepared by the manager of the respondent recommending that the applicant's lands be changed from recreational to residential. The lands in question were considered at the second meeting and the elected members accepted the recommendation to change the zoning back to RES1. The elected members were advised that this change was a material change and would require re-advertisement of the plan with the public being invited to make submissions on the amendment and the issue ultimately being put to the elected members for further consideration. On 23^rd September, 2009, Mr Pentony and Councillor Jim D'Arcy, both telephoned Mr Martin McCaughey to inform him that the respondent's elected members had voted to return the zoning of the applicant's lands to residential. The applicant complains that neither party informed him that the resolution was not the end of the matter and that further public consultation and a further vote by the elected members would be required. The applicant ultimately took no further steps to protect the residential zoning in terms of making submissions, lobbying elected members or otherwise.

16 5 3.4 After the vote of 22^nd September, 2009, the revised draft of the plan was put out for further public consultation and an advertisement to this effect was published in a local newspaper. The change back to residential zoning in respect of the applicant's land elicited 24 submissions from members of the public, all of which were opposed to the change. The applicant did not make any further submission believing the matter to be resolved. The draft plan came before the elected members of the respondent on the 17^th November, 2009, and a vote was taken to change the zoning to RAO. The decision was effectively ratified by Louth County Council on 25^th November, 2009. The plan then came into effect on 23^rd December, 2009; notice...