Protect East Meath Ltd v Meath County Council (No. 2)

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] IEHC 69
• Court: High Court
• Docket Number: [2021 No. 958 JR]

Between

Protect East Meath Limited

Applicant

and

Meath County Council

Respondent

and

Trailford Limited, Shannon Homes (Dundalk) Limited, Rockmill Limited, Glenveagh Homes Limited, Neemats Limited and J. Murphy (Developments) Limited

Notice Parties

[2023 IEHC 69]

[2021 No. 958 JR]

THE HIGH COURT

JUDICIAL REVIEW

(II) (No. 2)

JUDGMENT of Humphreys J. delivered on the 17 ^th day of February, 2023

“Reforms of planning legislation in 2010 introduced a new approach to justifying land use zoning objectives in local authority plans so that enough land is provided for future development but not so much that development becomes difficult to coordinate or undermines regeneration of existing, but under-occupied and run-down urban areas. These core strategy reforms have realised major benefits in a more evidence-based and strategic approach to planning.” [National Planning Framework, 2018, p. 137]

1 . This passage of official planning policy, while not in itself self-executing, nonetheless helpfully encapsulates one of the fundamental problems for the council here. By removing all of the phasings of residential zoning from relevant lands in the southern environs of Drogheda, the council has departed from a “strategic” (that is, a plan-led) approach to development, and has allowed the substitution in effect of a developer-led approach to development — in effect a building-site Darwinism whereby developers, not the council, will determine which of the zoned lands in the southern environs of Drogheda will actually absorb the provided allocation for housing.

2 . Indeed some of the developers concerned almost revel in the survival-of-the-fittest analogy, arguing that the over-zoning of lands to a greater level than that required for housing will promote “competition” between developers. The race-to-the-finish-line outcome thereby envisaged under the current plan is that only the first 1,631 housing units that are consented will be provided, wherever those may be located, but not the most appropriate 1,631 units as viewed in objective planning terms.

3 . This creates the very difficulty of coordination of development that the National Planning Framework warns against. Indeed it undermines such coordination because it eliminates any binding determination by the council of which among the zoned lands can be developed for housing during the life of the plan. The most that the council will be able to do under the plan is to propose priority areas, but that will only be a material consideration, not a legally effective requirement. The approach taken also undermines potential coordination as between Meath and Louth County Councils because it potentially creates a fait accompli prior to any potential agreement of a joint approach to the development of Drogheda overall – an issue in which Louth is the senior partner, viewing the matter in purely geographical terms.

Facts

4 . Many of the relevant facts are outlined in Protect East Meath (II) (No. 1) [2022] IEHC 395, ( [2022] 7 JIC 0108 Unreported, High Court, 1st July, 2022) but a few highlights may suffice here.

5 . The previous County Development Plan was adopted in December 2012. On 19 ^th May, 2014 Variation No. 2 was adopted. Section 3.3 noted that there was an excess of residential zoned lands in most of the towns and villages in Meath for which local area plans had been prepared. Table 5 set out in Variation No. 2 showed that 19.9 ha were required for residential use in the southern environs of Drogheda but 157.2 ha had been zoned for residential use, leading to an excess of 139.1 ha. Nine residential sites were given a rank within what was described as a Phase I zoning (including in three cases Phase I* zoning which applied to part of the site) meaning that such lands could benefit from A2 (new residential) zoning during the lifetime of the plan. The remainder of the lands were regarded as Phase II lands (that is, envisaged as having a new residential zoning after the lifetime of the plan, post-2019).

6 . On 16 ^th February, 2018 the government published the National Planning Framework, to which we have already referred.

7 . On 28 ^th June, 2019 the regional assembly adopted the Regional Spatial and Economic Strategy (RSES) 2019 to 2031. That envisaged a population for Drogheda of 50,000 by 2031. The RSES also included a regional policy objective RPO 4.11 which required the preparation of a joint urban area plan for Drogheda to be agreed between Meath and Louth County Councils.

8 . The draft new Meath County Development Plan went on display in December, 2019. A number of submissions were made on the draft plan, including one by Louth County Council who stated that they “would have concerns with the quantum of lands zoned for residential use in this location, which appears to be significantly in excess of that required to meet the population in the plan period”. The Chief Executive reported on the submissions on 13 ^th August, 2020. The material amendment process then took place and the applicant made a further submission via its solicitors on 28 ^th June, 2021 seeking retention of the previous phasing. The Chief Executive's report on the material amendments was issued on 12 ^th August, 2021. The plan as amended was then adopted and came into effect on 3 ^rd November, 2021.

Procedural history

9 . The present proceedings challenging the development plan issued on 11 ^th November, 2021. Leave was granted in the Judicial Review List on 15 ^th November, 2021. On 24 ^th January, 2022 the matter was entered in the Commercial List and then transferred to the Commercial Planning and Strategic Infrastructure Development List.

10 . On 7 ^th February, 2022, I fixed a hearing date of 20 ^th May, 2022. On 14 ^th February, 2022, the council applied to vacate that date and sought an alternative date in June 2022. On 21 ^st June, 2022, when the matter was at hearing, I adjourned the certiorari challenge and allowed the applicant to notify relevant landowners of that challenge, which would become module II of the proceedings. Judgment was then reserved regarding a declaration regarding strategic environmental assessment, which had become module I of the proceedings. I gave judgment on that module in Protect East Meath v. Meath County Council (II) (No. 1) [2022] IEHC 395, ( [2022] 7 JIC 0108 Unreported, High Court, 1st July, 2022), and dismissed the claim for relief in that regard.

11 . To advance module II, notice was given to relevant landowners; in total, six such landowners were joined to the proceedings. They all filed written legal submissions and affidavits and I directed that the replying papers would be treated as statements of opposition so that they were not required to file such formal statements, as this would only delay matters further. Module II was then listed for hearing from 13 ^th to 15 ^th December, 2022. On Monday 19 ^th December, 2022, I announced the order being made and indicated that I would give reasons later, which I now do.

Reliefs

12 . The reliefs sought in the statement of grounds are as follows:

• 1. “An Order of Certiorari by way of application for judicial review quashing the decision of the Respondent, Meath County Council (the “Council”), on 22 ^nd September 2021 to make and adopt the Meath County Development Plan 2022–2027 (the ‘CDP’) in relation to the zoning of lands for residential use in the Southern Environs of Drogheda.

• 2. A Declaration that the Council, in adopting the CDP failed to conduct a valid Strategic Environmental Assessment.

• 3. An Order that Section 50B of the Planning and Development Act 2000 as amended, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, and / or Article 9 of the Aarhus Convention apply to the present proceedings.

• 4. An Order for costs.”

13 . Various issues with the reliefs are noted in the No. 1 judgment. The present judgment is concerned with relief 1, certiorari of the development plan. While relief 1 is phrased in general terms, the applicant has clarified that it was only seeking relief in relation to the lands now zoned A2 in the southern environs of Drogheda. These fall into two categories. First of all, A2 lands that were previously A2 Phase II, and secondly, A2 lands that were previously A2 Phase I. The applicant also confirmed that its complaint in relation to lack of infrastructure assessment included an objection to economic uses (as opposed to purely residential uses) where such uses would be affected by that argument.

Materials before the court

14 . Materials placed before the court by being uploaded to the ShareFile platform for this case included submissions, books of authorities and loose authorities, books of exhibits, books of pleadings, mapping material, original books for hearing and supplemental books for hearing, running to a combined record-breaking total in the list of 14,487 pages (exceeding the recent local record in Concerned Residents of Treascon v. An Bord Pleanála [2022] IEHC 700).

Issues

15 . Essentially there were four issues to be addressed:

• (i) Whether the council acted unlawfully, either:

  • (a). by zoning significantly more land for housing in the southern environs of Drogheda than follows from an approach based on population, and/or

  • (b). by failing to comply with infrastructure assessment methodology.

• (ii) If so, whether relief should be used as a matter for discretion.

• (iii) An application to set aside the order made in module I.

• (iv) The form of the order in the event of unlawfulness being established.

Relevant core grounds

16 . The basis of the claim for certiorari is summarised in core grounds 1 and 2, which are as follows:

• 1. “The Council erred in law in considering that removing the Residential Phase II designation for all A2 New Residential lands in the Southern Environs of Drogheda was not a change in zoning strategy and/or further misinterpreted the...