Protect East Meath Ltd v Meath County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 03 May 2023
• Neutral Citation: [2023] IEHC 218
• Docket Number: [2021 No. 958 JR]
• Court: High Court

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 218

[2021 No. 958 JR]

THE HIGH COURT

JUDICIAL REVIEW

(II) (No. 3)

JUDGMENT of Humphreys J. delivered on the 3 ^rd day of May, 2023

1 . In Protect East Meath Ltd v. Meath County Council (II) (No. 1) [2022] IEHC 395, ( [2022] 7 JIC 0108 Unreported, High Court, 1st July, 2022), I dismissed an application for a declaration that the adoption of the Meath County Development Plan involved a failure to conduct a valid Strategic Environmental Assessment.

2 . In Protect East Meath Ltd v. Meath County Council (II) (No. 2) [2023] IEHC 69, ( [2023] 2 JIC 1704 Unreported, High Court, 17th February, 2023) I granted limited certiorari of the plan together with an interlocutory stay on effect being given to the zoning being quashed and to any current or future planning applications or appeals thereby affected.

3 . I am now dealing with the issue of the form of the order on foot of the No. 2 judgment. The Council has proposed a draft order as follows:

“1. An Order of Certiorari by way of judicial review, pursuant to paragraph 1 of the Notice of Motion dated 16 December 2021, removing for the purposes of being quashed, the decision of the Respondent to make the Meath County Development Plan 2022–2027 on 22nd September 2021 in relation to the zoning of lands for residential use in the Southern Environs of Drogheda, but limited to:

(i) Sheet 35(a) Southern Environs of Drogheda Sheet, 35(a) Southern Environs of Drogheda-Combined, and Sheet 35(b) Heritage, but only insofar as relates to the references to A2 Zoning and lands in the Southern Environs of Drogheda (not including any lands that were Zoned A2 Phase 1 in the previous development plan), limited in extent insofar as such A2 Zoning on such lands includes residential development or other land uses where zoning for such purposes would have required an infrastructural Assessment Report;

(ii) the last three paragraphs of section 2.8.1.1; and

(iii) the figure ‘178.70’ in the table to section 2.10.4, Column 1 [ recte I], Row 1.

For the avoidance of doubt, the land-use zoning objective in respect of the A2 lands the subject-matter of paragraph 1 of this Order shall be ‘Rural’.

The within Order is without prejudice to the right of the Council to lawfully adopt a Local Area Plan, Joint Area Plan or Variation of the Development Plan in a manner consistent with the Judgment of the Court in the within proceedings, dated 17th February 2023.

2. An Order vacating the Order made on 1 July 2022 dismissing the application for relief by way of judicial review sought at paragraph 2 of the Notice of Motion dated 16 December 2021.

3. An Order dismissing the application for relief by way of judicial review sought at paragraph 2 of the Notice of Motion dated 16 December 2021.

4. The Applicant's costs of the proceedings to be paid by the Respondent, which costs are to be adjudicated in default of agreement.”

4 . Finalising the order requires consideration of a number of issues and I will endeavour to go through the various elements that need to be considered one by one.

Refusal of declaratory relief

5 . In the No. 1 judgment, declaratory relief was refused. That order, dated 1 ^st July, 2022, was perfected on 31 ^st August, 2022. In the No. 2 judgment it was recorded that the order would be set aside by consent and then re-made as part of the final order. So the appropriate time to do that is now, as the draft order suggests.

Wording of certiorari

6 . The council has surprisingly resuscitated the applicant's flawed phraseology of trying to quash the “decision to make” the plan rather than the plan itself. The conceptual problem with this formula has been explained in the No. 1 judgment (para. 33) and many other times; and I am not going to repeat that here, but nor am I going to make an order in those incorrect terms.

Appropriate zoning following certiorari

7 . It would appear to be appropriate to add to the wording suggested by the council a specific statement that the amendment is made under s. 50A(9A) of the Planning and Development Act 2000, to make clear the jurisdictional basis for the new zoning being inserted by amendment. None of the parties disagreed with that suggestion.

8 . The primary issue of contention was what the new zoning should be. At least four options were canvassed by the parties:

(i) RA Rural zoning which was initially proposed by the council; but they subsequently indicated that they were amenable to WL zoning, so this wasn't really pursued;

(ii) WL White Lands zoning;

(iii) A2 (new residential) phase II (post-2027) zoning which was akin to the zoning objective in the previous plan; or

(iv) to simply quash the zoning with no amendment leaving no zoning objective, which would be in some ways the worst option and would create a lacuna beyond what was necessitated by the order, before we even factor in the power of amendment.

9 . The WL White Lands zoning is as follows:

“Objective: To protect strategic lands from inappropriate forms of development which would impede the orderly expansion of a strategic urban centre

Guidance

White Lands are located in Navan, South Drogheda, East Meath, Kilmessan, Enfield and Ratoath. These are strategic lands and their designation is to allow for a long term, integrated approach to be the taken to the expansion of an urban area. It is not generally envisaged that development proposals will be brought forward during the life of this Development Plan for such lands. No indication is therefore generally offered regarding the suitability or otherwise of individual uses on said lands within this Development Plan. Should the Planning Authority be satisfied that a project proposed for lands with a white land designation would assist with the implementation of the Economic Strategy and education provision, these lands can be released for employment creating development during the plan period in accordance with the Economic Strategy. White Lands should only be released where it would lead to significant employment creation, education provision or which cannot reasonably be accommodated on other...