N¡ Chonghaile v Comhairle Chontae Na Gaillimhe (Translation)

• Jurisdiction: Ireland
• Judgment Date: 01 January 2004
• Docket Number: [2000 J.R. 570]
• Date: 01 January 2004
• Court: High Court

Ní Chonghaile v. Comhairle Chontae na Gaillimhe

Áine áine Ní Chonghaile, Ciarán Ó Faharta ó faharta, Séamus Óó Flatharta, Mícheál Ó Flatharta ó flatharta, Peadar Ó Seagha ó seagha, Noel Mac Donnchadha, Pádraig Ó Conaire ó conaire, Pádraig Óó Gaibhán

Applicants

and

Galway County Council,Respondent (Translation)

[2004] IEHC 317

[2000 J.R. 570]

High Court

Planning - Development plan - Linguistic impact statement - Gaeltacht housing scheme - Duty to obtain linguistic impact statement - Local Government (Planning and Development) Regulations 1994 (S.I. No. 86) - regs. 130 to 135 - Local Government (Planning and Development) Act 1963 (No. 28), ss. 22(1), 39 and 78 - Local Government Act 1991 (No. 11), s. 7 - Planning and Development Act 2000 (No. 30), s. 10(2).

The respondent proposed a housing scheme for Cuiléan, in Carraroe, Galway. No linguistic impact statement was prepared in relation to the scheme but notwithstanding that fact, on the 25th September, 2000, the respondent decided to proceed with the scheme. The applicant soughtcertiorari of that decision as well as various declarations, including a declaration that the respondent failed to comply with s. 7 of the Local Government Act 1991 in failing to take into account government policy and aims in its functions as a local authority.

Held by the High Court ( Ó Caoimh ó caoimh J.), in grantingmandamus directing the respondent to fulfil the conditions laid down in the development plan for Galway and certiorari of the respondent's decision to continue with the housing scheme despite the absence of a linguistic impact report but refusing the other relief sought, 1, that, there was an obligation on the respondent to recognise the aim of s.7 of the Local Government Act 1991 and that the respondent had failed to require a linguistic impact statement for each planning application and that this amounted to a violation of s.7 of that Act.

2. That the respondent had failed to comply with the conditions laid down in the development plan for Galway and had thereby violated s. 22 of the Local Government (Planning and Development) Act 1963.

3. That, although the site map which had been initially provided was not accurate, the parties had not been misled by this and applying the principle of de minimus non curat lex, relief would not be granted on this ground.

4. That government policy with regard to housing schemes for Gaeltacht regions was not clear and that the respondent had taken into account general government policy in deciding its development plan.

5. That there was no violation of regs. 131 or 133 of the Local Government (Planning and Development) Regulations 1994.

Cases mentioned in this report:-

Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99; [1989] I.L.R.M. 768.

Monaghan U.D.C. v. Alf-a-Bet Promotions Ltd. [1980] I.L.RM. 64.

The State (Abenglen Properties) v. Dublin Corporation [1984] I.R. 381.

Judicial review

The facts have been summarised in the headnote and are fully set out in the judgment of Ó Caoimh ó caoimh J., infra.

The applicant was granted leave to seek judicial review by the High Court (O'Neill J.) on the 24th October, 2000. The application was heard by the High Court on the 28th November, 2001.

Cur. adv. vult.

Ó Caoimh ó caoimh J. 5th July, 2002

1 By order of this court, the applicants were granted leave to seek the following reliefs in these proceedings:-

• (i) a declaration that the respondent failed to comply with reg. 131 of the Local Government (Planning and Development) Regulations 1994;

• (ii) a declaration that the respondent failed to comply with reg. 131(2)(b)(i) of the Local Government (Planning and Development) Regulations 1994 requiring a location map clearly outlining the relevant development area to be made available to the public in general;

• (iii) a declaration that the respondent failed to comply with reg. 133 of the Local Government (Planning and Development) Regulations 1994;

• (iv) a declaration that the respondent failed to comply with reg. 133(b) of the Local Government (Planning and Development) Regulations 1994 requiring a location map with the relevant development area clearly outlined to be available to the public in general;

• (v) a declaration that the respondent failed to comply with reg. 133(c) of the Local Government (Planning and Development) Regulations 1994 requiring a location map with the borders of the relevant development area together with any roads and buildings in the location clearly outlined;

• (vi) a declaration that the respondent, in its capacity as a local authority under the relevant Acts and Statutory Instruments, failed to comply with the provisions of s. 7 of the Local Government Act 1991, in respect of the housing scheme at An Cuiléan, An Cheathrú Rua, in the County of Galway, requiring that the policies and objectives of the government and government ministers be taken into account and be fulfilled;

• (vii) an order of mandamus requiring the respondent, acting as a local authority, to comply with s. 7 of the Local Government Act 1991, by taking into account the policies and objectives of the government and government ministers in relation to matters of heritage, culture and the Irish language;

• (viii) an order of mandamus requiring the respondent, acting as a local authority, to comply with the provisions of s. 10(2) of the Planning and Development Act 2000, by taking into account the policies and objectives of the government and government ministers in relation to matters of heritage, culture and the Irish language;

• (ix) an order of mandamus requiring the respondent to comply with the provisions of the county development plan for the County of Galway for the period 1997 to 2000;

• (x) an order of mandamus requiring the respondent to comply with the provisions of reg. 133 of the Local Government (Planning and Development) Regulations 1994 relating to local authorities;

• (xi) certiorari quashing the entirety of the decision made by the respondent on the 25th September, 2000, to proceed with the housing scheme at An Cuiléan, An Cheathru Rua, County Galway, despite the failure to comply with the provisions of regs. 130, 131, 132, 133, 134 and 135 of the Local Government (Planning and Development) Regulations 1994;

• (xii) prohibition or an order restraining the respondent from proceeding with the housing development planning reference number PA00/15 in An Cheathru Rua, County Galway, in any way that breaches Part X of the Local Government (Planning and Development) Regulations 1994 and damages the natural balance of the area.

2 The first applicant swore an affidavit verifying the facts grounding the statement of grounds for judicial review. The applicant requested Tadhg Ó hIfearnáin ó hifearnáin to prepare a language impact assessment and he sent the said assessment to the respondent in June, 2000. In response to this, the report of the secretary of the respondent dated the 19th July, 2000, sent to every member of the Council pursuant to reg. 134 of the Local Government (Planning and Development) 1994, says in relation to language matters:-

"The matter of a well resourced language development and revitalisation plan would not be the function of the County Council."

The report also said:-

"The County Council does not consider that the proposed development of local authority housing constitutes rapid urbanisation and would submit that the proposed development will contribute to the preservation and enhancement of the Irish language in the area."

3 The first applicant submits that this view contradicts the respondent's development plan, that is the county development plan for the period 1997 to 2000.

At para. 5.1.2:-

"The planning authority recognises how important and how valuable the language and culture of the Gaeltacht are and therefore the planning authority will make an effective effort to preserve the language heritage of the Gaeltacht."

At para. 5.3:-

"5.3 Development Control Objectives

5.3.1 Linguistic Impact Objectives

The planning authority recognises that the status of the Irish language has been undermined, particularly in areas close to Galway city by immigrant population with no competence in, or affinity for, the language.

To strictly control residential (including single once off houses), commercial and industrial development, which, in the opinion of the planning authority, will have a negative impact on the Irish language in Gaeltacht areas. The planning authority will therefore require a linguistic impact statement with all applications for development in the area."

4 The first applicant says and believes that that requirement has not been complied with and that the planning authority is breaching its own development plan since no linguistic impact statement has been prepared in this case. She believes that gaeltacht towns which are already under language pressure cannot take any more language pressure from building in the towns. She says that English is the lingua franca that is spoken on estates already built (in or near the town).

5 In the assessment prepared by Dr. Tadhg Ó hIfearnáin ó hifearnáin from the Applied Languages Centre in Limerick University at para. 2.3, he states:-

"There is no precedent for urbanisation sustaining the linguistic integrity of an Irish speaking community. If such planning is to be undertaken it will require substantial language planning as part of a socio-economic development plan. Rapid expansion in residential estates and holiday homes will damage the social networks which define the linguistic community, weakening Irish as the community language. This is a phenomenon associated with urbanisation and will occur regardless of the origins of the new residents. In the absence of a major language planning initiative to counteract the established model of language attrition through urbanisation, only developments in keeping with established local...