Sister Mary Christian and Others v Dublin City Council (No 1)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date27 April 2012
Neutral Citation[2012] IEHC 163
Docket Number[2011 No. 56 JR]
Date27 April 2012
Christian & Ors v Dublin City Council

BETWEEN

SISTER MARY CHRISTIAN, SISTER THERESA KENNEDY, SISTER JOSEPHINE MCDONALD, SISTER UNA O'NEILL, SISTER EILEEN MARY DURACK, SISTER MARY FAHY, SISTER MARY O'FLYNN, SISTER MONICA BYRNE AND SISTER BRIDIE COLLINS
APPLICANTS

AND

DUBLIN CITY COUNCIL
RESPONDENT

[2012] IEHC 163

[No. 56 J.R./2011]

THE HIGH COURT

CONSTITUTIONAL LAW

Right to property

Right to religious freedom - Principle of proportionality - Prohibition on diversion of religious property - Discrimination -Whether possible to assess effect of measure on rights in absence of reasons for measure - Whether zoning was diversion of religious property - Planning and Development Act 2000 (No 30), ss 9, 10, 11, 12, 34 and first sch - Constitution of Ireland 1937, Articles 28A, 40.3, 43, and 44.2.6 - European Convention on Human Rights and Fundamental Freedoms 1950 - Portions of development plan quashed (2011/56JR - Clarke J - 27/4/2012) [2012] IEHC 163

Christian v Dublin City Council

PLANNING & DEVELOPMENT LAW

Local government

Development plan - Zoning -Duty to give reasons - Elected members - Powers - Material contravention of development plan - Locus standi - Class - Whether local authorities entitled to have planning policies - Whether elected members of local authorities could give reasons - Whether adequate reasons given for zoning decision - Whether lawfulness of zoning decision could be assessed in absence of reasons - Whether elected members of local authority could exclude, by way of zoning, power to permit development in material contravention of development plan - Whether party who was member of class of persons had locus standi to challenge measure alleged to be discriminatory against class - Attorney General (McGarry) v Sligo County Council [1991] 1 IR 99 applied; Tristor Ltd v Minister forEnvironment [2010] IEHC 397, (Unrep, Clarke J, 11/11/2010) and Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453 approved; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and Cahill v Sutton [1980] IR 269 - Portions of development plan quashed (2011/56JR - Clarke J - 27/4/2012) [2012] IEHC 163

Christian v Dublin City Council

LOCAL GOVERNMENT ACT 2001 S11(5)(A)

CONSTITUTION ART 40.3

CONSTITUTION ART 43

CONSTITUTION ART 44.2.5

CONSTITUTION ART 44.2.6

CONSTITUTION ART 28A

CLARKE v SOUTH DUBLIN CITY COUNCIL 2008 4 IR 178

PRENDERGAST v HIGHER EDUCATION AUTHORITY 2010 1 IR 490

LOCAL GOVERNMENT ACT 2001 PART 9

LOCAL GOVERNMENT ACT 2001 S63(1)

LOCAL GOVERNMENT ACT 2001 S69

LOCAL GOVERNMENT ACT 2001 S130

AG (MCGARRY) v SLIGO CO COUNCIL 1991 1 IR 99

PLANNING & DEVELOPMENT ACT 2000 S9(1)

PLANNING & DEVELOPMENT ACT 2000 S10(1)

PLANNING & DEVELOPMENT ACT 2000 S10(2)

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S7

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT ACT 2000 S11

PLANNING & DEVELOPMENT ACT 2000 S12

PLANNING & DEVELOPMENT ACT 2000 S9

PLANNING & DEVELOPMENT ACT 2000 S34(2)(A)(I)

PLANNING & DEVELOPMENT ACT 2000 S34(6)

HEANEY v IRELAND 1994 3 IR 593

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

CONSTITUTION ART 15.2.1

PJ CARROLL & CO LTD v MIN FOR HEALTH & CHILDREN 2005 1 IR 294

PLANNING & DEVELOPMENT ACT 2000 S12(5)(AA)

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S9(C)

PLANNING & DEVELOPMENT ACT 2000 S13

PLANNING & DEVELOPMENT ACT 2000 S5(2)(A)

PLANNING & DEVELOPMENT ACT 2000 S5(6)

PLANNING & DEVELOPMENT ACT 2000 S19(1)(E)

PLANNING & DEVELOPMENT (STRATEGIC ENVIRONMENTAL ASSESSMENT) REGS SI 436/2004

EEC DIR 92/43 ART 6

TRISTOR LTD v MIN FOR THE ENVIRONMENT UNREP CLARKE 11.11.2010 2010/50/12548 2010 IEHC 397

MULHOLLAND v BORD PLEANÁLA (NO.2) 2006 1 IR 453

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

SCANNELL THE CATASTROPHIC FAILURE OF THE PLANNING SYSTEM 2011 18(1) DULJ 393

CAHILL v SUTTON 1980 IR 269

EAST DONEGAL CO-OPERATIVE v AG 1970 IR 317

CONSTITUTION ART 40

CONSTITUTION ART 43

CONSTITUTION ART 44

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION v AG 1975 109 ILTR 69

HUTTEN-CZAPSKA v POLAND 2006 45 EHRR 301

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 1

SPORRONG & LONNROTH v SWEDEN 1982 5 EHRR 35

BUCKLEY v UK 1997 23 EHRR 101

JAMES v UK 1986 8 EHRR 123

BURDEN v UK 2008 47 EHRR 38

H (D) v CZECH REPUBLIC 2008 47 EHRR 3

ORSUS v CROATIA 2011 52 EHRR 7

1

JUDGMENT of Mr. Justice Clarke delivered on the 27th April, 2012

1. Introduction
2

2 1.1 Development plans play an important role in the planning process. The making of development plans by each planning authority can give rise to political controversy for the simple reason that the content of the plan is decided by the elected members (as that term is defined under s. 11(5)(a) of the Local Government Act 2001). Likewise, once adopted a development plan forms the basis against which all planning applications are to be considered. Development plans have, under the Planning and Development Act 2000 (as amended) ("the 2000 Act"), a lifetime of six years. Subject to amendment or the material contravention procedures available, all planning permissions must comply with the development plan during its currency.

3

3 1.2 The current Dublin City Development Plan ("the Development Plan") was adopted on 24 th November, 2010, and is expressed to run from 2011 to 2017. It is, as might be expected, a lengthy and detailed document. It is not, of course, the first such plan and follows on from a sequence of previous plans. Each successive version of the development plan contains changes presumably designed to meet new conditions and prevailing views. One new feature (although, as will become clear, there is some dispute about just how different from what went before it may be) of the current plan is the creation of a form of zoning (designated Zone Z15) which had no exact counterpart, at a minimum, in previous plans. This zoning is described in the plan as being "to provide for institutional, educational, recreational, community, green infrastructure and health uses". A significant amount of the land contained within that zoning is owned by religious institutions. The applicants ("the Sisters of Charity" or "the Sisters") are representatives of the religious order bearing that name. A significant amount of land owned by the Sisters of Charity comes within Z15 zoning. It is said by the Sisters of Charity that the relevant zoning is likely to have a significant detrimental effect on the value of the relevant properties. While that fact, of itself, of course, is a feature of many types of zoning, nonetheless the Sisters of Charity assert that, on a number of different bases, the zoning attached to their lands is unlawful. The Sisters of Charity bring these proceedings against the respondent ("Dublin City Council" or simply "the Council") with a view to seeking judicial review of the current Dublin City Development Plan or at least those aspects of it which are said to be unlawful.

4

4 1.3 As will be seen, these proceedings raise some very broad though important questions relating to the interaction between development plans and property rights guaranteed under the Constitution, on the one hand, or, as a result of Ireland's obligations under the European Convention on Human Rights ("ECHR"), on the other. In addition, the proceedings raise broad issues concerning the process by which a development plan is formulated by particular reference to the question of whether, and if so to what extent, and, indeed, in what manner, elected members are required to give reasons for their decisions.

5

5 1.4 In addition, questions are raised deriving from traditional judicial review grounds as to whether those aspects of the plan about which the Sisters of Charity complain can be said to be irrational, in the sense in which that term is used in the judicial review jurisprudence, or otherwise fail the ordinary test for the exercise of legally delegated powers. Finally, there are a series of more technical issues relating to matters such as standing to which it will be necessary to refer in due course.

6

6 1.5As even that brief synopsis demonstrates, these proceedings involve a very wide range of issues. In order to explain more fully the questions to which this judgment is directed, I propose to turn, therefore, to a more detailed consideration of the issues which arise.

2. The Issues
7

2 2.1 When opening the case for the Sisters of Charity, counsel handed into court a list of ten issues which were tentatively put forward as representing the areas of dispute between the parties which were said to emerge from the papers filed in court. Those matters came to be refined in the course of the argument. When it came towards the end of his reply, counsel for Dublin City Council also handed in a separate list of some 18 issues which were said to arise. That latter list contained, sometimes with adaptation, the issues originally proposed on behalf of the Sisters of Charity. Some issues were added or original issues were broken into two or more matters in the light of the precise controversy that emerged between the parties at the hearing. Be that as it may, it seems to me that a convenient point from which to define the issues which require to be addressed is the list as presented on behalf of Dublin City Council.

8

3 2.2 I propose, therefore, to set out those issues in full. They are as follows:-

9

1. What locus standi have the Applicants to challenge the Development Plan:-

10

(a) without having yet sought any Planning Permission to develop their lands on foot of same? or,

11

(b) by relying on Z15 zoning of the lands of other religious orders?

12

(c) in terms of their issue specific locus standi.

13

2. Are the Applicants entitled to rely on material which was not generated or presented before the Elected Members prior to the making of the Development Plan?

...

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