Mount Salus Residents' Owners Management Company Ltd by Guarantee v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 15 January 2025
• Neutral Citation: [2025] IEHC 14
• Court: High Court
• Docket Number: 2022/939 JR

In the matter of Section 50 of the Planning and Development Act 2000 (as amended)

Between

Mount Salus Residents' Owners Management Company Limited by Guarantee

Applicant

and

An Bord Pleanála, The Minister for Housing Local Government and Heritage, Ireland, The Attorney General

and

The Planning Regulator

Respondents

and

Alannah Smyth

and

Dún Laoghaire Rathdown County Council

Notice Parties

[2025] IEHC 14

2022/939 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

Planning and environment – Judicial review – Declaratory relief – Applicant seeking declaratory relief – Whether the impugned ministerial direction was invalid

Facts: The applicant, Mount Salus Residents' Owners Management Company Limited by Guarantee (Mount Salus), challenged the following “Impugned Decisions”: two statutory recommendations by the fifth respondent, the Office of the Planning Regulator (the OPR), to the second respondent, the Minister for Housing, Local Government and Heritage (the Minister) (the OPR Recommendations) recommending the deletion of content of the 2022 Development Plan as made by the second notice party, Dún Laoghaire Rathdown County Council (DLRCC); and a statutory draft direction by the Minister (the Draft Ministerial Direction) and a statutory direction by the Minister (the Ministerial Direction) requiring DLRCC to delete that content of that Development Plan - the content deleted was the 0/0 Objective of the Development Plan. Mount Salus impugned primarily the decision of the first respondent, An Bord Pleanála (the Board), to permit the first notice party, Ms Smyth, to construct a detached two-storey, three-bedroom house on a site at Torca Road, Killiney Hill, Dalkey, County Dublin. The Board conceded certiorari oan the basis that it erred in interpreting certain content of the 2022 Development Plan. Ms Smyth did not oppose certiorari. It was agreed that the matter should be remitted to the re-decision of the Board. Mount Salus in Core Ground 6 of the Amended Statement of Grounds sought certain declaratory reliefs as to the Impugned Decisions. It was agreed that Holland J was to decide the Core Ground 6 issue as to the validity of the Impugned Decisions, as that would determine whether, in making its remitted decision, the Board would consider the 2022 Development Plan with or without the 0/0 Objective.

Held by Holland J that: the opinion of both the OPR and the Minister that, in breach of s. 10(1) of the Planning and Development Act 2000 (PDA), the Development Plan failed to set out an overall strategy for the proper planning and sustainable development of the area was based on their opinion that, in breach of s. 10(1A) PDA, the development objectives in the Development Plan were not consistent, as far as practicable, with National Policy Objectives 3b, 11 and 35, and Regional Policy Objectives 3.2 and 4.3, and their having misdirected themselves in law as to the basis on which and standard by which such consistency must be judged - they failed to judge it by reference to the criteria of general consistency and by reference to the entire development plan area and the entire of the transport corridors in the development plan area; he accordingly declared the OPR’s decision to issue its s. 31AM(8) Notice invalid by reason of misdirection of law; he declared the Minister’s decision to issue his Impugned Direction invalid as based on that invalid s. 31AM(8) Notice; the Minister’s reasons were not severable and the error described above permeated them all, such that he would declare the Minister’s decision to issue his Impugned Direction invalid.

Holland J declared the Impugned OPR Recommendations and the Impugned Ministerial Direction to be invalid.

Relief granted.

JUDGMENT OFMr Justice HollandDELIVERED 15 JANUARY 2025

Contents

JUDGMENT OF MR JUSTICE HOLLAND DELIVERED 15 JANUARY 2025	1
INTRODUCTION	5
The Impugned Decisions & Some Factual Matrix	6
Public Transport in the DLRCC Area	8
Minister's Position as to the Legal Regime	10
Zoning, SLO130, the 0/0 Objective and its Deletion	14
Zoning & the Presumption of the 0/0 Objective	14
SLO130	15
The 0/0 Objective	16
Substantive Aims of the Deletions	24
Interpretation of Ministerial Directions and OPR Recommendations — General Note	27
LOCAL/NATIONAL BALANCE OF POWER IN PLANNING POLICY-MAKING — CLARITY REQUIRED	27
Tristor (2010) — Alterations to the Balance of Power	31
Spencer Place (2020) & Cork County Council (2021)	32
CHRONOLOGY & RELIEFS CLAIMED	34
Chronology	36
OPR s.31AM(1) Submission to DLRCC on Draft 2022 Development Plan — 16/4/21	39
OPR's s.31(AM)(3) Submission to DLRCC on Proposed Amendments to Draft Plan — 24/12/21	51
OPR's s.31AM(8) Recommendation to the Minister enclosing Draft Direction — 6/4/22 — “First Domino”	60
Minister's Notice to DLRCC — “Notice of Intention to issue a Direction” — 12/4/22	66
OPR's s.31AN(4) Notice to Minister — Recommending Direction — 17/6/22	70
Comment on OPR's s.31AN(4) Recommendation to Issue a Direction	72
Ministerial Direction — s.31(16) PDA 2000 — 28 September 2022	74
Reliefs Claimed by Mount Salus	78
STATUTORY SCHEME	79
Ss.9 — 12, & s.20 PDA 2000	79
Chapter IIA, Part II, s.23 & s.27 PDA 2000 — NPF & RSES	83
Part IV, Chapter II PDA 2000 — ACAs	84
S.31, S.31AN & S.31AMPDA 2000 — Broad Subject-Matters	85
S.31AMPDA 2000	87
S.31AM(8)PDA 2000	88
S.31AN & S.31PDA 2000	89
NPF, RSES & URBAN RESIDENTIAL DEVELOPMENT GUIDELINES 2009	93
Urban Residential Development Guidelines 2009	93
NPF	94
NSO1 — Compact Growth	95
NSO4 — Sustainable Mobility	97
NSO7 — Enhanced Amenity and Heritage	97
NPO3b — Favour Urban Development	98
NPO11 — Urban Infill/ Brownfield Development	101
NPO35 — Increase Residential Density	102
NPO52 — Environment	103
NPO60 — Heritage	103
Transport Corridors in the NPF	103
RSES — RPO3.2, Compact Growth & RPO4.3, Consolidation and Re-Intensification	104
PLEADINGS — GROUND 6 — INVALIDITY OF MINISTERIAL DIRECTION AND OPR RECCOMENDATIONS	106
Mount Salus' Pleadings & some Commentary thereon	106
Error of Law: No Overall Strategy in 2022 Development Plan	107
Scope of Objective 0/0, NPO35 & Application of 2009 Guidelines	109
Conservation and Protection of Environment, Heritage, Landscape and Architecture	111
NPO3b & NPO11	112
Countervailing Environmental Objectives	113
Issues Not Pleaded	114
Minister's & OPR's Positions	114
DISCUSSION & DECISION	116
Elected Members' Reasons for Rejecting Recommendation #4 and Maintaining 0/0 Objective	116
Interpretation of the Elected Members' Reasons	117
Relevance of the Elected Members' Reasons	120
Clear Objective Reasons	121
Elected Members' Strategic Disagreement with Board	122
Development Plan §5 — Integrated Land Use And Transport	123
Cork County Council case (2021) — Domino Effect	125
Narrower Legal Basis for OPR Recommendation than for Ministerial Direction	127
Planning Policies & Objectives in Tension — Trade-Offs & Reconciliations — Discretion	129
Tristor (2010)	133
Tristor — Introduction	133
Tristor — Overall Strategy #1 — Interpretation of s.31	135
Tristor — Standard of Review of Ministerial Directions	138
Tristor — Minister's Reasons	140
Tristor — Overall Strategy #2	141
Post-Tristor Amendments of ss.10 & 31 & Caselaw	142
Cork County Council case (2021) — Tristor still the Law	145
FoIE — Dublin Airport Noise Schemes case (2024)	146
S.10(1A) PDA 2000 — Interpretation	148
“As far as is practicable” — Caselaw	148
Consistency with NPF & RSES Development Objectives — s.10(1A) and s.31(1)(ba) PDA 2000 Compared	151
S.31 & s.31AM(8) PDA 2000 — “of the Opinion” — Caselaw	152
McCarthy Meats (2020)	156
Opinion as to Illegality — Restraint by the Minister	157
Rationality of Opinion that Development Plan is Irrational	160
Collection of the Foregoing	161
Killegland & McGarrell (2023) — Consistency with NPF — General, not Ubiquitous	161
Reasons for the Impugned Decisions & are they Severable?	168
Misdirection in Law	171
Overall Strategy — s.10(2) PDA 2000 List of Mandatory Development Plan Objectives	173
Irrationality & Reasons	175
CONCLUSION	178

INTRODUCTION

1 This judgment concerns the statutory powers of the 5 ^th Respondent (“the OPR” 1, “the Office”) and the 2 ^nd Respondent (“the Minister”), in combination and in effect, to direct the amendment of a development plan. I hope I may be forgiven for suggesting that the legislative scheme governing both the making of a development plan and the making of such ministerial directions seems a paradigm example of the complexity of the Planning Acts described (albeit in passing) by Hardiman J in Oates2 as “ notorious”. Generally as to this judgment, I confess to taking some shelter, not for the first time, in the Supreme Court's description of the Planning Code as “ almost impossibly complex” 3 a “ statutory maze”, 4 and “ confusing almost to the point of being impenetrable” 5 and in the recent reference by Hogan J to “ the complexities of our planning laws and … how difficult it is often in practice to apply

this corpus juris.” 6 More specifically, Humphreys J in an FoIE case, 7 recently and with reason, described the procedures for making a development plan as complex and the resultant flow-chart as “ quite labyrinthine” such that a comprehensive account is impractical. Nonetheless, he very usefully set out the 19 “ basic” steps required – including those relating to the role of the OPR and the possibility of ministerial directions as to development plan content. By reference...