McGarrell Reilly Homes Ltd v Meath County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 01 July 2022
• Neutral Citation: [2022] IEHC 394
• Court: High Court
• Docket Number: [2021 No. 964 JR]

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, as Amended

Between

McGarrell Reilly Homes Limited and Alcove Ireland Eight Limited

Applicants

and

Meath County Council

Respondent

[2022] IEHC 394

[2021 No. 964 JR]

[2022 No. 5 COM]

THE HIGH COURT

COMMERCIAL

JUDGMENT of Humphreys J. delivered on Friday the 1st day of July, 2022

1 The applicants challenge the adoption of the Meath County Development Plan 2021– 2027, which affected the zoning of certain of their lands at Kilcock and Stamullen, County Meath. The factual background to the plan is set out in ( [2022] IEHC 393 Killegland Estates Limited v. Meath County Council Unreported, High Court, 1st July, 2022), and that discussion can be incorporated by reference here, but the following points are additionally relevant to these applicants.

2 The Development Plan 2013–2019 was amended by Variation No. 2 in 2014 to create a phasing process whereby some A2 lands were listed as A2 post 2019 (phase II) rather than for immediate housing developments (phase I). Variation No. 2 to the Meath County Development Plan has already been considered by McDonald J. in Highlands Residents Association v. An Bord Pleanála [2020] IEHC 622, ( [2020] 12 JIC 0201 Unreported, High Court, 2nd December, 2020). McDonald J. noted (at paras 19–23) that Variation No. 2 was based on there being an excess of lands zoned for housing in County Meath and thus there being a need to introduce an order of priority as to the sequence in which residential development would be permitted on individual parcels of lands.

3 At para. 42 McDonald J. said “when para. (ii) of SP 1 speaks of land not being available for residential development “within the life” of the County Development Plan, that seems to me to plainly prohibit the use of such lands for residential development for the duration of the Plan and I believe that this is the way in which the words used would be read by the ordinary and reasonably informed member of the public.”

4 All of the applicants' lands in the present case were changed in this way in 2014. The effect of McDonald J.'s judgment is that none of the applicants' lands can be deemed to have been zoned for residential use under the previous plan as it stood prior to the plan as now adopted. The four lands in question are as follows:

• (i). A 27.6 ha site in Kilcock which was zoned A2 residential post 2019 under Meath County Development Plan 2013 – 2019. This was zoned A2 (Phase II) post 2027 under new Development Plan;

• (ii). A 3.44 ha site called Crowe's land in Stamullen zoned A2 residential post 2019 under Meath County Development Plan 2013 – 2019. This was zoned ‘G1’ Community Infrastructure under the new Development Plan;

• (iii). A 5.26 ha site called Silverstream lands in Stamullen zoned A2 residential post 2019 under Meath County Development Plan 2013 – 2019. This was zoned ‘RA’ Rural lands under the new Development Plan; and

• (iv). A 9.39 ha site called Haran's lands in Stamullen zoned A2 residential post 2019 under Meath County Development Plan 2013 – 2019. This was zoned ‘E3’ Warehouse and Distribution under the new Development Plan.

5 In March 2020, the applicants made submissions on the draft plan regarding the proposed zoning of their lands.

6 The statement of grounds was filed on 11 ^th November, 2021.

7 On 24 ^th November, 2021, Meenan J. directed leave on notice.

8 On 17 ^th January, 2022, McDonald J. admitted the case into the Commercial List and it was then transferred to the Commercial Planning and Strategic Infrastructure Development List.

9 On 31 ^st January, 2022, I granted leave. A statement of opposition was filed on 24 ^th March, 2022. A hearing date was then assigned of 31 ^st May, 2022.

General considerations

10 I set out a number of general considerations in Killegland. That discussion can be incorporated by reference here.

Core ground 1 – National Planning Framework

11 Core ground 1 states as follows:

“The decision to zone the Applicants' Lands as part of the making of the Development Plan, was made in a manner inconsistent with the National Planning Framework Objectives 72a, 72b and 72c, and Appendix 3 insofar as the Respondent failed to adopt a tiered approach to zoning, and in that regard failed provide and publish a Written Infrastructural Assessment Report both at draft and adoption stage which was required to inform such zoning determination. The Respondent therefore acted contrary to sections 10(1A) and 12(11) and 12(18) of the Planning and Development Act 2000, as amended (‘the 2000 Act’) and so its decision was ultra vires and without jurisdiction. Further, the Respondent failed to conduct any or any valid infrastructure assessment and/or in the alternative, failed to provide reasons and/or adequate reasons for any Infrastructural Assessment in making such zoning decision.”

Law in relation to the National Planning Framework

12 The law in relation to the extent of the need for compliance with the National Planning Framework is set out in Killegland and that discussion can be incorporated here by reference.

Application of the law to the facts

13 I note that the only objectives in the National Planning Framework that are pleaded here relate to objectives 72a-c. The objectives at No. 73 are not pleaded.

14 The council objected that the applicants should not be allowed complain about the lack of an infrastructure assessment report because they didn't make that point in submissions on the draft plan. However, I would reject that objection. Whether a development plan is consistent with the NPF as required by s. 12(18) of the 2000 Act is either a matter going to jurisdiction or a matter that a party can legitimately look to the decision-maker to address. Thus, failure to raise it in the process doesn't preclude reliance on the point in judicial review: see Reid v. An Bord Pleanála [2021] IEHC 230, ( [2021] 4 JIC 1204 Unreported, High Court, 12th April, 2021). That doesn't mean that the infrastructure assessment report is indeed a requirement here, just that the applicants can make this point.

15 The issue of the application of the law to the facts in respect of breach of the NPF as set out in Killegland also applies here, and the general points made in that discussion can be incorporated by reference here.

16 The allocations based on population and household distribution are set out in the core strategy at Table 2.12. The strategy then identifies certain settlements for additional housing based on a clear identified hierarchy.

17 Section 2.10.1 identifies Kilcock and Stamullen as what it calls self-sustaining towns which take a mid-ranking position in the hierarchy of settlements.

18 Essentially there are two fundamental problems for the applicants.

19 Firstly, the zonings of their lands in the current development plan do not envisage housing and new development uses during the lifetime of the plan. Thus, they are not “zoned” land for the purposes of Appendix 3 of the NPF (see Killegland). Hence the need for an infrastructure assessment report or any other compliance with Appendix 3 doesn't arise in relation to these lands.

20 And secondly, in accordance with the NPF, the distribution of new housing is required to be in accordance with a core strategy that forms a coherent whole when looking at all parts of the county. That strategy must be formed in the context of the regional and national housing hierarchy of provision, and so no individual piece of land can be looked at in isolation. The fundamental problem for the applicants is that a challenge to an individual zoning of a particular piece of land in isolation from the overall hierarchy and distribution of housing provision for the entire county is not a permissible exercise. The ultimate objective of quashing the zoning with a view to a different zoning being given would not achieve anything because it would result in a breach of the core strategy by virtue of an excess of lands being zoned for residential development. The problem for the applicants which is that additional housing on their lands would breach the sequential approach set out in the core strategy. The applicants have not engaged with that, either in their submissions to the council or in the relief sought in these proceedings. One can contrast that with a submission on behalf of another landowner, submission reference no. MH-C5-627 on behalf of Glenvel GP (Jersey) Ltd., which proposed not just a rezoning of lands to A2 but also an addition to the core strategy (see Chief Executive's report, p. 152). The proposal went on to say that if the allocation was not increased then the lands should be listed in a sequential manner. That submission at least acknowledges the fundamental dynamic of the process and the need for each individual piece of land to find its place in an overall jigsaw. But there cannot validly be a process whereby a particular piece of land is simply to be added to the pile for housing. The size and distribution of the pile overall has to be addressed.

Core ground 2 – consistency with regional strategy

21 Core ground 2 states as follows:

“In dezoning the Applicant's lands in Stamullen, the Council misconstrued Section 4.3 of the Regional Spatial and Economic Strategy (‘RSES’) and/or failed to act in a manner consistent with the RSES for the Eastern and Midlands in breach of its statutory obligations under sections 10(2A), 12(11) and 12(18) of the 2000 Act.”

Law in relation to consistency with the regional strategy

22 The law in relation to the requirement for consistency with the regional spatial and economic strategy is set out in Killegland and that discussion can be incorporated here by reference.

Application of the law to the facts

23 The core strategy acknowledges at s. 2.4.3 the requirement of a consistent planning hierarchy as between national,...