Ryan v Meath County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IEHC 754
• Docket Number: [2014 No. 490 JR]
• Court: High Court
• Date: 21 December 2016

[2016] IEHC 754

THE HIGH COURT

Barrett J.

[2014 No. 490 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING

AND DEVELOPMENT ACTS 2000–2014

BETWEEN

MICHAEL RYAN

APPLICANT

– AND –

MEATH COUNTY COUNCIL

RESPONDENT

– AND –

JOSEPH CONNOLLY

NOTICE PARTY

Planning & Development – S.50 of the Planning & Development Acts 2000-2014 – Local Area Plan (LAP) – Refusal of planning permission – Material alteration – Certiorari – S. 20 (3) (q) of the Planning and Development Act 2000

Facts: The applicant sought an order of certiorari for quashing the part of the local area plan (LAP) in relation to the land use zoning objective of lands within ownership of the applicant for the two phases. The applicant who had been earlier granted planning permission to develop residential units for first two phases contended that the extant permission granted subsequently by making material alteration to the LAP also applied to his other two phases.

Mr. Justice Max Barrett refused to grant the desired relief to the applicant. The Court held that the relevant condition of the planning permission granted for the first two phases specifically excluded the other two development phases. The Court found that as evidence from the core strategy, all the other land which did not have the extant permission was made subject to an evidence-based residential evaluation so as to judge its suitability to retain its residential zoning. The Court found that the applicant never had any permission to develop multiple unit residential developments with respect to the other two phases. The Court noted that even if the Court was to assume that the applicant had the necessary approval, the applicant had not attempted to challenge the original refusal of planning permission and the application now filed before the Court was out of time.

JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2016.

I. Background

1 The Meath County Development Plan 2013-2019 informed the process for the adoption of the East Meath Local Area Plan (LAP) 2014-2020 and contained, as mandated by s.10 of the Planning and Development Act 2000, as amended (the “Act of 2000”), an overall strategy for the proper planning and sustainable development of County Meath, including a Core Strategy showing that the development objectives were consistent with national and regional development objectives, as set out in the National Spatial Strategy and Regional Planning Guidelines. In accordance with the requirements of the Regional Planning Guidelines, the Council in adopting its Development Plan, ensured that it made provision for sufficient lands to meet the residential needs of County Meath for the ensuing six years, being the six-year lifespan of the Development Plan and an additional three years' “headroom”. This capacity was distributed across the entirety of County Meath in accordance with the county's Urban Settlement Hierarchy, as detailed in the Development Plan, ranging from large growth towns to moderate sustainable growth towns, small towns and villages. The 2013-2019 Development Plan did not set out to identify the development objectives applicable to specific landholdings. Instead it provided that existing landholdings would be revisited in the context of either LAPs for specified centres within County Meath or variations to the Development Plan dealing with specific geographical areas of County Meath. Mr Ryan brings the within proceedings for the purpose, inter alia, of quashing part of the East Meath LAP insofar as the same relates to a land use zoning objective of certain lands at Donacarney Little in Mornington, County Meath. Mr Ryan further seeks an order remitting that part of the East Meath LAP, which relates to the zoning objective of the lands, to the Council for its consideration and, in particular, with the intention that the lands might be zoned for residential development.

II. Mr Ryan's Initial Planning Permission

2 Mr Ryan is the owner of approximately 20 hectares of land at Doneycarney Little, Mornington, County Meath, that were zoned for residential purposes in the East Meath LAP 2005. Mr Connolly is the owner of adjacent lands, including Donacarney House, a protected structure. Under the East Meath LAP 2005, Mr Ryan's lands were subject to a land use zoning that allowed for residential development. In or about 2007, he sought planning permission for a residential development on the lands. This development was to proceed by way of four separate phases. By order dated 5th March, 2008, An Bord Pleanála granted planning permission in respect of Phases 1 and 2 of the proposed development consisting of some 345 residential units and key pieces of infrastructure required for the entire site. The grant of planning permission did not include the residential development in Phases 3 and 4 but the infrastructure that was permitted was in respect of the entire site. Thus Condition 2 stated as follows: ‘2. This permission is in respect of Phase 1 and Phase 2 of the proposed development…and in respect of the provisions of the main drainage and water supply infrastructure and of the full length of the main distributor loop road in the remainder of the site. The housing in Phases 3 and 4, as also the local housing access roads in those phases, shall not be developed on foot of this permission’. At the time of writing, it is Mr Ryan's intention to build the same number of units for which he has permission, but over the entire of his land-holding. Consistent with this objective, he lodged a planning application for 109 units on Phases 3 and 4 of his lands on 9th July, 2014. This last application was refused by the Council, the said refusal being upheld by An Bord Pleanála on 8th April, 2015.

III. The Adoption of the East Meath LAP

(i) A Summary Chronology of the Process Arising

3 The process that led to the adoption of the East Meath LAP can be summarised as follows: (i) in September, 2013, a non-statutory strategic issues paper was published by Meath County Council for the purpose of raising awareness of the nature of both a LAP and the statutory process to be followed in adopting a LAP. In this paper, the public were invited to make submissions in respect of what they considered should be included in the LAP; (ii) a draft East Meath Local Area Plan (the “draft LAP”) was published by the Council on 13th December, 2013; (iii) in response to the publication of the draft LAP, submissions were received, these included a submission dated 3rd February, 2014, from Mr Joseph Connolly, the notice party; (iv) a Manager's report on the draft LAP was prepared by the County Manager of the County Council in March, 2014; (v) the elected members of the Council, following consideration of the County Manager's report, decided that the draft LAP should be altered at a meeting of the elected members on 23rd April, 2014; (vi) notice of material alterations to the draft LAP was published on 13th May, 2014; (vii) a submission on behalf of Mr Ryan regarding the proposed material alterations to the draft LAP issued to the Council on 10th June, 2014; (viii) the Chief Executive of the Council (formerly the County Manager) prepared a report on the material alterations to the draft LAP and the submission made by Mr Ryan in July, 2014; and (ix) the East Meath LAP was made by the elected members of the Council on 7th July, 2014, and came into effect on 3rd August, 2014.

(ii) A More Detailed Consideration of the Process Arising

4 The process for the preparation of the draft East Meath LAP commenced in September 2013, with the Council publishing a notice of its intention to prepare a new LAP on 23rd September, 2013. At the same time, a period of pre-draft public consultation was undertaken between 23rd September, 2013, and 18th October, 2013. A non-statutory strategic issues paper was publicly displayed and an information session was held at Bettystown on 10th October, 2013, for the purpose of raising general awareness of the nature of the LAP and the LAP process.

5 In preparing a draft LAP, the Council is required, pursuant to s.19(2) of the Act of 2000, to ensure that it is consistent with the objectives of the County Development Plan and its Core Strategy. The Core Strategy required that only sufficient lands to meet the needs of residential development during the life of the plan (plus some “headroom”) could be zoned for development. The Development Plan further required that an evidence-based rationale be applied to identify the most suitable land to accommodate the residential units allocated in the County Development Plan for the area the subject of the LAP. The County Development Plan recognised the entitlement of landowners who had existing or live planning permissions on their properties to utilise those planning permissions; consequently their lands retained their development zoning in the draft LAP.

6 In the preparation of the draft LAP, published in December, 2013, Mr Ryan's lands were not subjected to an evaluation process. As a consequence, all four phases of Mr Ryan's lands at Donacarney Little were treated as if permission had been obtained for all four phases, whereas in fact it will be recalled that Condition 2 of the planning permission that issued from An Bord Pleanála had expressly stated that ‘ The housing in Phases 3 and 4, as also the local housing access roads in those phases, shall not be developed on foot of this permission…’. Proceeding from this erroneous start, in the preparation of the draft LAP the Council referenced all of the lands that had been the subject of Mr Ryan's initial application without taking into account the just-quoted restrictions as set out in the permission. This error was drawn to the Council's attention as a consequence of submissions made by Mr Connolly in the course of the public consultation process regarding the draft LAP.

7 As part of the LAP adoption...