Pat O'Donnell and Company v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 26 November 2024
• Neutral Citation: [2024] IEHC 671
• Court: High Court
• Docket Number: 2022:1096:JR

Between

Pat O'Donnell and Company

Applicant

and

Dublin City Council

Respondent

Uniphar Plc

Notice Party

2024 [IEHC] 671

2022:1096:JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

JUDICIAL REVIEW

Planning and environment – Judicial review – Planning and Development Act 2000 s. 12(8)(b) – Applicant seeking certiorari quashing the respondent’s decision to adopt the Dublin City Development Plan 2022-2028 – Whether the respondent breached the obligation imposed on it by s. 12(8)(b)(i) of the Planning and Development Act 2000

Facts: The applicant, Pat O'Donnell and Company, applied to the High Court seeking certiorari quashing the decision of the respondent, Dublin City Council (DCC), made on 2 November 2022 (the Impugned Decision) to adopt the Dublin City Development Plan 2022-2028 (the Development Plan) insofar as it adopted material alteration MAD-0004 (the Material Alteration) to the prior draft Development Plan. The applicant submitted that: (1) by s. 12(8)(b) of the Planning and Development Act 2000 (PDA 2000), the CE Report of September 2022 must, but fails, ultra vires, to identify the applicant as having made a submission on the amendments, summarise that submission and respond to the issues raised; (2) (a) the Uniphar Site and the applicant’s contiguous Pat O’Donnell lands (the Sites), together, form an “employment landbank” inside the M50 and 2.4km from it, they lie adjacent a major transport corridor and are well-served by public transport, (b) so, Regional Policy Objective 5.6 (RPO5.6) is directly engaged by the impugned Material Alteration, (c) DCC breached ss.11(1A) and 12(11) PDA 2000 in failing to take any or sufficient account of RPO5.6 and/or the Guiding Principles for the location of strategic employment areas; (3) DCC breached fair procedures (audi alteram partem), natural and/or constitutional justice, a fundamental right of the applicant at common law and Articles 40.3 and 43 of the Constitution, and failed to provide reasons, such that it acted ultra vires; and (4) there are two material factual errors in the CE Report to the elected members, even though both errors had been pointed out in the applicant’s submission, to which, in those regards, the CE Report did not respond, contrary to s. 12(8) PDA 2000.

Held by Holland J that: (1) DDC’s breach of the obligation imposed on it by s.12(8)(b)(i) PDA 2000 to list the applicant as having made a submission as to the Material Alteration could not be excused as de minimis and Ground (1) as to the allegation that the CE failed to summarise the applicant’s submission failed; (2) the applicant failed to discharge its evidential onus of proof of substantive failure to have regard to RPO5.6 as a relevant consideration; (3) applying the law as to reasons for zoning decisions, the reasons given sufficed - as Hogan J put it in Killegland Estates Ltd v Meath County Council [2023] IESC 39, no one could have been in any doubt as to the reasons for the decision in this case; and (4) ultimately, when pressed as to whether Ground (4) was fairly criticised as an impermissible attempt to litigate the planning merits of the Impugned Decision, counsel for the applicant did not press back strongly - Ground (4) was rejected on that basis and also as based on the fallacy of reading the CE Report of 21 September 2022 as invalid when a validating reading is reasonable.

Holland J quashed the Z10 zoning of the Uniphar Site by reason of DCC’s failure to list the applicant in the CE Report of 21 September 2024 as having made a submission.

Relief granted in part.

JUDGMENT OF Mr Justice David Holland DELIVERED 26 NOVEMBER 2024.

Contents

INTRODUCTION	3
Zoning Objectives Z6 and Z10	4
Figure – Material Alteration D-0004	7
DEVELOPMENT PLAN-MAKING PROCESS – BRIEF DESCRIPTION	7
CHRONOLOGY	11
THE APPLICANT/DOYLE KENT SUBMISSION — 31 AUGUST 2022	24
CE REPORT — 21 SEPTEMBER 2022	27
GENERAL OBSERVATIONS	29
LEGISLATION & SOME COMMENTARY THEREON	32
Article 28A of the Constitution – Role of Local Government & Part II, Chapter I, PDA 2000	32
Ss.9, & 10(1A) PDA 2000 — Development Plan & Core Strategy	33
S.11 PDA 2000 – Draft Development Plan	33
S.12 PDA 2000 — Making of a Development Plan	33
GROUND 1: CE REPORT – IDENTIFICATION OF APPLICANT — SUMMARY OF & RESPONSE TO SUBMISSION 31 Outline of Issues	36
Failure to List Applicant as a Person that made a Submission	37
Failure to List — Applicant's Particulars & Submissions	37
Failure to List — Respondent's Particulars & Submissions	38
Failure to List – Discussion & Decision	39
Failure to List – Conclusion and Remedy	58
Failure to Summarise and Respond to issues raised	59
Failure to Summarise & Respond — Applicant's Particulars & Submissions	59
Failure to Summarise & Respond — Respondent's Particulars & Submissions	60
Failure to Summarise & Respond – Discussion & Decision	60
Failure to take account of statutory objectives etc	64
GROUND 2: BREACH OF S.12(11) PDA 2000 — RPO5.6 & GUIDING PRINCIPLES FOR LOCATION OF STRATEGIC EMPLOYMENT AREAS	64
RSES — RPO5.6 & Guiding Principles for Location of Strategic Employment Areas	64
Outline of Issues	66
Ground 2 — Discussion and Decision	67
GROUND 3: FAIR PROCEDURES & REASONS	68
Outline of Issues	68
Discussion — Reasons & the Repetition Point	70
Application of Law to the Present Case — Decision	81
GROUND 4: CE REPORT — MATERIAL FACTUAL ERRORS	81
CONCLUSION	83

INTRODUCTION 1

1. These proceedings seek certiorari quashing the decision of the Respondent (“DCC”) made on 2 November 2022 (the “Impugned Decision”) to adopt the Dublin City Development Plan 2022–2028 (the “Development Plan”) insofar as it adopted material alteration MA D-0004 (the “Material Alteration”2) to the prior draft Development Plan.

2. The effect of the Material Alteration was to change the zoning of 1.82 ha of lands at Chapelizod Bypass/Rossmore Drive, Kylemore Road, Dublin 20 (“the Uniphar Site”) from Z6 — Employment/ Enterprise, to Z10 — Inner Suburban and Inner City Sustainable Mixed-Uses. The Applicant does not own the Uniphar Site. The Notice Party (“Uniphar”) does and supported the alteration – presumably to enhance the development potential and value of its lands. The Applicant asserts, broadly correctly, that the alteration would facilitate primarily residential development on the Uniphar Site. The most recent use of the Uniphar Site was as a factory/warehouse building with associated offices. It has been largely unused3 since about 2017 and Uniphar has been contemplating redevelopment of its Site for some years – perhaps since before 2015.

3. The Uniphar Site and the Applicant's contiguous “Pat O'Donnell lands” (together “the Sites”) lie in the western outer suburbs of Dublin city in the Chapelizod/Ballyfermot area. They are generally illustrated in the Material Alteration map below. As it illustrates, to the North and East, across the Chapelizod Bypass, the land uses are residential. To the west is residential also. The Ballyfermot Training Centre4 is to the south, further south of which the lands are also in residential use. The Chapelizod Bypass provides access to the M50 Motorway and National Roads. Uniphar asserts5 — to no apparent disagreement — that the area generally is well-served by public transport with connectivity to the city centre (including the Lucan — City Centre Quality Bus Corridor and along Kylemore Road), educational facilities and local retail.

4. The Applicant owns the Pat O'Donnell lands of 1.75 ha immediately contiguous to and north and east of the Uniphar Site. The Applicant claims to be Ireland's largest supplier of heavy construction plant, machinery and equipment, including bulk material-handling equipment and diesel engines. It operates its purpose-built industrial headquarters, including training, repair and maintenance facilities, on the Pat O'Donnell lands. The Applicant employs 100 staff, 75 of whom generally operate from the Pat O'Donnell lands. It uses the strip of land east of the Uniphar Site to store plant and machinery, including large machinery, and for

machinery demonstration and testing. The Applicant uses its lands immediately adjoining the northern boundary of the Uniphar Site for outside storage of heavy buckets, metals wheels, and other attachments associated with heavy machinery. The Applicant operates 24 hours a day to cater for urgent work and says that its operations can be intrusive, especially at night, with the noise of deliveries, equipment, alarms and vehicles, but there is no history of complaints as to the use of the lands. However, it says its operations are incompatible with adjoining residential use and that friction between its operations and adjacent residential use and complaints by residents on the Uniphar Site would be inevitable. The Applicant says it had to move in 2005 from a previous location to the Pat O'Donnell lands for that very reason – the EPA had imposed what the Applicant says were “severe” restrictions as to noise levels and hours of operation. It says that after long search it specifically selected the Pat O'Donnell lands as appropriately zoned, as remote from sensitive land uses such as residential use and as highly accessible to the motorway network. Accordingly, it does not wish to have to move again — at an estimated gross cost of €15,000,000.6

5. Uniphar supports DCC's defence of the proceedings but did not participate as it considered that it had nothing to add.

6. I make the general observation that the parties' affidavits canvassed many issues of planning judgement without my role and expertise. I will refer to some only below. The affidavits are appreciably argumentative.

ZONING OBJECTIVES Z6 AND Z10

7. The following are the relevant zoning objectives of the 2022 Development Plan:

Zoning...