McEvoy and Smith v Meath County Council

• Jurisdiction: Ireland
• Judgment Date: 02 September 2002
• Date: 02 September 2002
• Docket Number: [2001/359 JR]
• Court: High Court

THE HIGH COURT

[2001/359 JR]

BETWEEN

TONY McEVOY AND MICHAEL SMITH

APPLICANTS

AND

MEATH COUNTY COUNCIL

RESPONDENT

Abstract:

Judicial review - Statutory interpretation - Words and phrases - Meaning of the phrase “have regard to” - Parliamentary intent - Whether errors of law on face of development plan - Whether respondent failed to “have regard to” regional planning guidelines in making and adopting county development plan - Whether respondent fully informed of existence and nature of such guidelines - Whether respondent gave reasonable consideration to such guidelines with view to accommodating objectives and policies contained therein - Planning and Development Act 2000 (No 30), section 27 (1).

Facts: the applicants were given leave to seek to quash the decision of the respondent to make and adopt the development plan for Meath in 2001 on the grounds that they failed to have due regard to the Strategic Planning Guidelines for the Greater Dublin Area as required under section 27 (1) of the Planning and Development Act 2000 and that their decision was irrational and/or unreasonable.

Held by Quirke J in refusing the application that the definition of the term “regard” is permissive rather than prescriptive in nature and the obligation imposed upon the respondent by section 27(1) of the Act of 2000 to “have regard to” the guidelines when making and adopting the plan is to inform itself fully of and give reasonable consideration to such guidelines with a view to accommodating the objectives and policies contained therein. It is not bound to comply with the guidelines and may depart from them for bona fide reasons consistent with the proper planning and development of the area. This is more so when read in conjunction with section 27(2) of the Act of 2000 which vests discretionary power in the Minister to require compliance by planning authorities with regional planning guidelines during the preparation or making of a development plan. If it had been the intention of the Oireachtas that subsection (1) of section 27 should be construed as imposing upon planning authorities an obligation to comply with regional planning guidelines, its enactment would render subsection (2) superfluous. In considering the issue of irrationality, the court is not concerned with the merits of the plan but rather with the manner in which the decision-maker has exercised the power and on the evidence, the respondent gave reasonable consideration to the guidelines when considered in toto and therefore “had regard to” them within the meaning of section 27(1) of the Act of 2000.

1 JUDGMENT of Mr Justice Quirke delivered on the 2nd day of September, 2002.

2 By Order of the High Court (O’Higgins J.) made on the 31st May, 2001, the Applicants were given liberty to seek the following reliefs by way of judicial review:

• (1) An Order declaring that in making and adopting a development plan for County Meath in March 2001 the Respondent failed to have due regard to the Strategic Planning Guidelines for the Greater Dublin Area published on the 25th March, 1999, as required by law and that in consequence the plan is void and of no effect and;

• (2) An Order quashing the decision of the Respondent to make and adopt the Plan.

3 SEQUENCE OF RELEVANT EVENTS

4 On the 25th March, 1999, Strategic Planning Guidelines (hereafter called the Guidelines) were published by the local authorities for the Greater Dublin Area and by the Department of the Environment and Local Government with the object of:

• (a) providing a strategic planning framework for development plans affecting the Dublin and Mid- East Regions and;

• (b) detailing the preferred direction for land use and transportation in those regions in the period up to the year 2011.

5 In April of the year 2000 a review and update of the Guidelines was published which concluded that the Greater Dublin Area (comprising Dublin City and the Counties of Dun Laoghaire — Rathdown, Fingal, Kildare, Meath, South Dublin, and Wicklow) was growing more rapidly than envisaged so that some revised recommendations were necessary in that light.

6 On the 1st January, 2001, pursuant to the coming into effect of Part II of the Planning and Development Act 2000 (hereafter called the Act of 2000) the Guidelines were deemed Regional Planning Guidelines within the meaning of s. 21 of the Act of 2000 (see subs. 4 thereof).

7 On the 5 March, 2001, the Respondent adopted the Meath County Development Plan 2001 and on the 20th March, 2001, notice of the decision to make and adopt that plan was published in Iris Oifiguil.

8 In April 2001, a further review and update of the Guidelines was published which reviewed the effect of the Guidelines, expressed some concerns, made recommendations and identified planning priorities for the Greater Dublin Area in the year 2001.

9 On the 31st May, 2001, the first named Applicant who is an elected member of Kildare County Council and the second named Applicant Mr. Smith who is chairman of An Taisce (the National Trust for Ireland) sought and obtained liberty to seek the

10 relief which is sought herein and on the 25th October, 2001, it was ordered by the High Court (Kelly J.) that these proceedings should proceed to hearing as if commenced by Plenary Summons without the need for pleadings and with certain liberty to the parties to adduce evidence viva voce.

11 The evidence adduced at the hearing of this action was largely documentary in nature comprising evidence on affidavit and with a number of documents agreed as evidence by the parties. Oral testimony was adduced by Mr. Michael Grace on behalf of the Applicants and three witnesses (Mr. Tony McEvoy, Mr. Joseph Horan and Mr. Joseph Fahy) were cross-examined in respect of their evidence on affidavit.

12 THE APPLICANT’S CLAIM

13 Sections 21 to 27 inclusive of the Act of 2000 make provision for regional planning guidelines and s. 21(4) of the Act expressly provides that "… the strategic planning guidelines for the greater Dublin area….published on 25th March, 1999, shall have effect as if made under this Part.”It follows that the Guidelines have precisely the same status as Regional Planning Guidelines for the purposes of the Act and otherwise.

14 Section 27 (1) of the Act of 2000 provides that:

15 “A planning authority shall have regard to any regional planning guidelines in force for its area when making and adopting a development plan.”

16 The Applicants claim that in making and adopting the Meath County Development Plan (hereafter called the Meath Plan) the Respondent:

17 1. failed in its statutory obligation to have regard to the Guidelines and;

18 2. adopted a development plan which contained errors on its face constituting errors on the face of the record which were of such magnitude as to:

19 (a) render the decision to make and adopt the Meath Plan

20 unreasonable and irrational as a matter of law and;

21 (b) vitiate the legal effect of the Meath Plan.

22 THE GUIDELINES

23 The stated objective of the Guidelines was to put in place a broad planning framework for the Greater Dublin Area in order to provide an overall strategic context for the development plans of each local authority within the area. This was deemed necessary by reason of “… an unprecedented rate of growth which is reflected in the level of development and building activity and in the demand for developable land.."within the area.

24 Within the Guidelines a distinction was made between the existing built up area of Dublin and its immediate environs (called the Metropolitan Area) and the remaining part of the area (called the Hinterland Area) which comprises extensive areas of countryside together with a range of towns of various sizes.

25 The Executive Summary of the Guidelines declares inter alia that:

26 “the principal issues in the Metropolitan Area related to pressure arising from rapid and intensive development, such as severe traffic congestion, whilst an important issue in the Hinterland Area is the spill-over of development pressures on the built-up area of Dublin … separate development strategies

27 for the Metropolitan Area and the Hinterland Area are proposed … in both areas the strategy seeks for and, facilitates a better balance between public and private transport. This will require the consolidation of future growth into a limited number of locations… the growth of the Metropolitan Area will be balanced by the concentration of development into major centres in the Hinterland… these ‘development centres’ will be located on existing or future transportation corridors … (and) … will be separated from each other and from the Metropolitan Area by "strategic green belts".

28 It is intended that these ‘development centres’ will develop, in the longer term as self sufficient towns with only limited commuting to the Metropolitan Area. This will involve the development of a strong employment and service base in each of the ‘development centres’.

29 Development outside the Metropolitan Area and the identified “development centres” in the Hinterland Area should be primarily to meet local rather than regional needs. Sporadic and dispersed development is regarded as unsustainable and should be subject to strict control.”

30 The principles guiding the strategy within the Guidelines were those of “sustainable development” consistent with European policy emanating from the European Spatial Development Perspective and the decision to adopt the strategy was taken after examination of a range of alternative models and options for the accommodation of the expected levels of population growth in the area.

31 Chapter 9 of the Guidelines provided that the population of the Hinterland Area (consisting principally of counties Meath, Wicklow and Kildare) was envisaged

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