Sister Mary Christian and Others v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 June 2012
• Neutral Citation: [2012] IEHC 309
• Court: High Court
• Date: 27 June 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 309

[No. 56 J.R./2011]

THE HIGH COURT

PLANNING & DEVELOPMENT LAW

Development plan

Invalid zoning - Zoning quashed - Referral back - Directions to be given to decision maker - Costs - Undecided and unsuccessful issues - Prima facie entitlement to costs - Whether matter should be remitted back - Whether applicants entitled to costs on undecided or unsuccessful issues - Whether additional issues added to costs of litigation - Whether inability to decide certain issues fault of respondent - Tristor Ltd v Minister for the Environment [2010] IEHC 397, (Unrep, Clarke J, 11/11/2010); Tristor Ltd v Minister for the Environment [2010] IEHC 454, (Unrep, Clarke J, 10/12/2010); Usk & District Residents Association Ltd v An Bord Pleanála [2007] IEHC 86, (Unrep, Kelly J, 14/3/2007); Veolia Water UK Plc v Fingal County Council [2006] IEHC 240, [2007] 2 IR 81 considered - Planning and Development Act 2000 (No 30), ss 12 and 13 - Directions for referral given and costs with small deduction awarded to applicants (2011/56JR - Clarke J - 27/6/2012) [2012] IEHC 309

Christian v Dublin City Council

Facts: The parties had been litigating a matter relating to a planning dispute. The dispute turned on the zoning of lands held by the applicants, which they contended adversely affected the value of those lands. In an earlier hearing ([2012] IEHC 163), the High Court had quashed a number of aspects of the relevant development plan. The parties were invited to make submissions on the form of order following the judgment, and in relation to costs in the matter.

Held by Clarke J, that that the form of order would be considered first. The Court clarified the outstanding technical issues, and that the matter would be referred back to the elected members of the respondent as a first port of call. The manner in which the matter would be considered by the elected members would be for them to decide, but the Court proposed a three stage process to be followed.

In respect of costs in the matter, the respondent accepted the applicants had succeeded in a substantial part of their claim. The Court considered that the full amount of costs were to be awarded, subject to a minor deduction in relation to one issue in which the applicants had failed to prove their claim. Veolia Water UK Plc & Others v Fingal County Council [2006] IEHC 240 applied.

PLANNING & DEVELOPMENT ACT 2000 S13

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

TRISTOR LTD v MIN FOR THE ENVIRONMENT & ORS UNREP CLARKE 10.12.2010 2010/50/12583 2010 IEHC 454

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP KELLY 14.3.2007 2007/59/12596 2007 IEHC 86

PLANNING & DEVELOPMENT ACT 2000 S13(1)

PLANNING & DEVELOPMENT ACT 2000 S12

PLANNING & DEVELOPMENT ACT 2000 S12(4)

VEOLIA WATER v FINGAL CO COUNCIL UNREP CLARKE 22.6.2006 2006/57/120852006 IEHC 240

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

1. Introduction

2 2 1.1 This judgment is supplemental to a judgment delivered by me on 27 ^th April, 2012, ("the main judgment"). Defined terms are used in the same way as in that judgment. At the conclusion of the main judgment I invited counsel to consider the appropriate form of order which should be made in the light of the findings in that judgment. The case was put back for further consideration in order to make that final order and to deal with the question of costs.

3 3 1.2 On the 15 ^th June, a further hearing occurred. While some progress had been made as to the terms of the order which it might be said properly flowed from the main judgment, there remained some areas of difference between the parties. In addition, while conceding that some order as to costs should be made in favour of the Sisters of Charity, counsel for Dublin City Council did not agree that the Sisters were entitled to their entire costs. This judgment is, therefore, directed to the issues which arose at that further hearing. I propose turning first to the question of the order. Separate documents were prepared by both sides which formed the basis of the issues now in dispute. I, therefore, propose first to turn to those issues.

2. The Issues on the Order

4 2 2.1 The order proposed on behalf of the Sisters of Charity is as set out in a letter from Arthur Cox of the 14 ^th May, 2012. It is in the following terms:-

"An order of certiorari, by way of judicial review, quashing the decision of the respondent, dated 24 ^th November, 2010, to adopt the Dublin City Development Plan 2011-2017, insofar as the said Dublin City Development Plan 2011-2017 includes zoning Z15 and all references thereto, as delineated on the First Schedule attached hereto.

An order of certiorari, by way of judicial review, quashing the Z15 zoning and those aspects of the Dublin City Development Plan 2011-2017 which deal with the Z15 zoning, as delineated on the First Schedule attached hereto.

A declaration that the lands owned by the applicants within the functional area of the respondent previously zoned Z15, as more particularly set out in the Second Schedule attached hereto currently have no zoning.

An order of mandamus, by way of judicial review, directing the respondents to make such variation or variations of the Dublin City Development Plan 2011- 2017, pursuant to section 13 of the Planning and Development Act 2000 as amended, as necessary to address the treatment of such lands as previously zoned Z15 under the said Plan in the light of, and in accordance with the provisions of, the judgment of this Honourable Court delivered on 27 ^th April, 2012."

5 3 2.2 In reply, and having consulted with the elected members, Dublin City Council proposed an alternative form of order in the following form:-

"An order of certiorari, by way of judicial review, quashing the decision of the respondent, dated 24 ^th November, 2010 ("the said decision"), to adopt the Dublin City Development Plan 2011-2017, insofar as the said Dublin City Development Plan 2011-2017 includes zoning Z15 and all references thereto, as delineated on the First Schedule attached hereto.

An order directing the said decision of the respondents to be remitted to the stage for consideration of the Manager's Report on Submissions/Observations on the Draft Plan (May 2010) for further consideration by the Elected Members of the Dublin City Council, as necessary to address the treatment of such lands previously zoned Z15 under the said Plan in the light of, and in accordance with the provisions of, the judgment of this Honourable Court delivered on 27 ^th April, 2012."

6 4 2.3 In substance, the issues which arise are, therefore, as follows:-

7 (i) While it is agreed by both parties that whatever order or orders of certiorari are to be made should refer to a schedule which delineates, for the purposes of deletion, all relevant references to Z15 zoning, there is one minor difference between the parties as to the appropriate exclusions. That difference relates to para. 15.2 of the Development Plan. The paragraph, as originally adopted, is in the following form:-

"The need to ensure that there is an increase in the amount of resource lands available in the city both in existing established areas and regeneration/development areas, given the capacity for an additional 67,000 residential units in the city and the fact that the majority of land zoned Z15 is in active use and given that in many areas these facilities do not have the capacity to meet existing needs (in terms of school places and access to health and recreational faciities) [sic] and to ensure that there is capacity to meet the needs of existing and future residential communities, in particular for schools, hospitals and recreational activities."

8 Counsel for the Sisters of Charity suggests that the entirety of the paragraph in question should be deleted. Dublin City Council submits that the only deletion should be of:-

"and the fact that the majority of land zoned Z15 is in active use and given that in many areas these facilities do not have the capacity to meet existing needs (in terms of school places and access to health and recreational faciities) [sic] and".

9 In all other respects counsel are agreed as to the deletions and the only issue which remains for me to decide under this aspect of the case is as and between the competing submissions of the parties on that narrow question.

10 (ii) Second, it will be seen that the draft submitted on behalf of the Sisters of Charity suggests that there be separate orders of certiorari directed to, respectively, the decision of the elected members to adopt the Development Plan and the Development Plan itself. The version suggested on behalf of Dublin City Council suggests only one order directed to the decision to adopt.

11 (iii) Third, the draft submitted on behalf of the Sisters of Charity suggests that there be a declaration to the effect that the lands which are subject to Z15 zoning in the plan as adopted are now without zoning. I did not understand counsel for Dublin City Council to disagree that such was the effect of the order or orders of certiorari to be made, but it was submitted that it was either unnecessary or inappropriate for this Court to make a declaratory order of the type suggested.

12 (iv) Finally, and perhaps of greatest substance, there is a significant difference between the parties as to the precise way in which I should give effect to the intention described in the main judgment to refer the...