Tristor Ltd v Min for Environment and Others

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date10 December 2010
Neutral Citation[2010] IEHC 454
CourtHigh Court
Date10 December 2010
Tristor Ltd v Min for Environment & Ors
JUDICIAL REVIEW
COMMERCIAL
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN

TRISTOR LIMITED
APPLICANT

AND

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, D ÚN LAOGHAIRE RATHDOWN COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND (BY ORDER)
CRADDER
NOTICE PARTY

[2010] IEHC 454

[No. 552 J.R./2010]

THE HIGH COURT

PLANNING & ENVIRONMENTAL LAW

Rezoning

Ministerial directions - Invalidity - Consequences - Function of court - Statutory process for formulation of development plan - Whether appropriate to quash resolution passed in compliance with ministerial directions - Whether appropriate to quash final adoption of development plan - Whether appropriate to reinstate land zone pre-ministerial directions - Glencar Explorations plc v Mayo County Council [1993] 2 IR 237; Usk and District Residents Association Ltd v An Bord Pleanála [2007] IEHC 86, (Unrep, Kelly J, 14/3/2007) approved - Planning and Development Act 2000 (No 30), ss 10, 11, 12 and 31 - Certiorari granted and matter remitted (2010/552JR - Clarke J - 10/12/2010) [2010] IEHC 454

Tristor Ltd v Minister for Environment, Heritage and Local Government, Dún Laoghaire Rathdown County Council and Others

Facts: The Court had delivered judgment previously in proceedings relating to two specified directions given by the Minister under s. 31 Planning and Development Act 2000, ordering them to be quashed. Orders of certiorari were sought as to the two ministerial directions given and an initial resolution. The issue arose as to whether it was appropriate to quash the original resolution passed and whether it was appropriate to interfere by way of certiorari with that Development Plan.

Held by Clarke J. that the Court would grant the orders sought which would have the effect of quashing both the Ministerial directions, the amending resolution and the Development Plan as adopted. One matter would be remitted back to the elected representatives to decide how the lands in question should be zoned for the purposes of the Development Plan.

Reporter: E.F.

PLANNING & DEVELOPMENT ACT 2000 S31

PLANNING & DEVELOPMENT ACT 2000 S11(1)

PLANNING & DEVELOPMENT ACT 2000 S11(4)(A)

PLANNING & DEVELOPMENT ACT 2000 S11(4)(D)

PLANNING & DEVELOPMENT ACT 2000 S11(5)

PLANNING & DEVELOPMENT ACT 2000 S12(5)

PLANNING & DEVELOPMENT ACT 2000 S12(6)

PLANNING & DEVELOPMENT ACT 2000 S12(7)

PLANNING & DEVELOPMENT ACT 2000 S12(10)(A)

PLANNING & DEVELOPMENT ACT 2000 S31(1)

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL 1993 2 IR 237 1993/3/568

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

1

JUDGMENT of Mr. Justice Clarke delivered the 10th December, 2010

1. Introduction
2

2 1.1 On the 11 th November last I delivered judgment on the main issues arising in these proceedings ("the principal judgment"). For the reasons set out in the principal judgment, I came to the view that two specified directions given by the Minister under s. 31 of the Planning and Development Act 2000 ("the 2000 Act") must be quashed. I went on to note, at para. 9.1., that it did not necessarily follow that the development plan which is at the heart of these proceedings had to be adopted in the form in which it was prior to the Minister's intervention by means of the directions to which I have referred. I, therefore, left over all questions as to the orders that required to be made to a further hearing. Parties are described and terms are used in this judgment in the same way as in the principal judgment.

3

3 1.2 The further hearing to which I have referred occurred and this judgment is directed to the issues which arose at it. At para. D of the statement of grounds in these proceedings, Tristor sought a large range of reliefs. However, those reliefs can be grouped in the following way:-

4

(a) Paragraphs D(i) and D(ii) which seek orders of certiorari directed to the two ministerial directions to which I have already referred;

5

(b) Paragraphs D(iii) and D(iv) which sought orders of certiorari seeking to quash an initial resolution passed on the 10 th March by Dún Laoghaire Rathdown Council in compliance with the ministerial directions to which I have referred and the final adoption of the Dun Laoghaire Rathdown County Development Plan 2010-2016 on the 11 th March, which plan included the amendment made by virtue of the resolution of the 10 th March;

6

(c) Various declaratory reliefs which do not add significancy to the substance of the matters referred to at (a) and (b) above; and

7

(d) Paragraph D(ix) in which a declaration is sought to the effect that Dún Laoghaire Rathdown Council is "obliged to reinstate the designation and land use zoning at Carrickmines as a district centre" for the purposes of the relevant development plan.

8

4 1.3 All parties were agreed that the reliefs referred to at (a) necessarily followed from the principal judgment. Likewise, it was accepted that, with the exception of the matter referred to at (d) above, the remainder of the declaratory relief did not add anything to the substantive certiorari reliefs sought.

9

5 1.4 The debate, therefore, turned on the reliefs sought at (b) and (d) above and was directed to the question of whether, and if so to what extent, it was appropriate for the court to quash the resolutions adopted by Dún Laoghaire Rathdown Council subsequent to its receipt of the ministerial directions which are the subject of these proceedings and, to the extent that it might be appropriate to quash either or both of those resolutions, what the status of the process for the adoption of a development plan by Dún Laoghaire Rathdown Council actually is.

10

6 1.5 On those issues, the State respondents indicated that they had no views. Tristor argued that the orders of certiorari referred to at (b) logically flowed from the principal judgment and also sought the declaration referred to at (d). Dún Laoghaire Rathdown Council opposed both of those applications.

11

7 1.6 Against that background it is appropriate to turn to the issues.

2. The Issues
12

2 2.1 The first set of issues concern, therefore, the question of whether it is appropriate to quash the original resolution passed by the Dún Laoghaire Rathdown Council on the 10 th March, on receipt of the relevant ministerial directions, which had the effect of changing the zoning of the relevant lands at Carrickmines to objective E. As was pointed out in the principal judgment, the way in which Dún Laoghaire Rathdown Council gave effect to the ministerial directions was to pass that resolution of the 10 th March, making that change.

13

3 2.2 Thereafter, on the 11 th March Dún Laoghaire Rathdown Council adopted the entire development plan including the amendment as to the zoning of Carrickmines, which had been put in place on the 10 th March. The second set of issues concerns whether, and if so to what extent, it is appropriate to interfere by way of certiorari with that development plan.

14

4 2.3 In the event that it is appropriate to quash some or all of the development plan, then further issues arise as to what is now to happen given the clear statutory imperative contained in the 2000 Act to the effect that a development plan must be formulated.

15

5 2.4 However, it seems to me that the issues which arise are logically best dealt with in the order in which I have set them out. In addition, the first two questions seem, at least to a significant extent, linked. I, therefore, propose to turn first to the consequences of the quashing of the ministerial directions.

3. The Consequences of Quashing the Ministerial Directions
16

2 3.1 The facts which underlie the issues in these proceedings need repeating at this stage. There clearly was a difference of opinion between various parties concerning the appropriate zoning for the relevant lands at Carrickmines. Tristor sought that same be zoned as a district centre. The County Manager took a different view. The Minister made submissions or representations largely in line with the views of the County Manager. Ultimately, when the draft development plan was adopted, the local representatives sided with Tristor and the designation of the relevant lands in that draft development plan was as a district centre.

17

3 3.2 In that context, it is appropriate to note the statutory process for the formulation of a development plan. The statutory intent is that a new development plan be adopted not later than six years after the previous development plan was put in place. Section 11(1) of the 2000 Act provides that, not later than four years after the previous development plan is adopted, a relevant planning authority must give notice of its intention to review the development plan and prepare a new development plan. A period of consultation follows. Section 11(4)(a) requires that, not later than sixteen weeks after the notice to which I have referred, the City or County Manager concerned must prepare a report on any submissions or observations received as a result of that consultation process. That report is submitted to the elected members of the planning authority (or a committee if thought appropriate) who are given power (under subs. (4)(d)) to issue directions to the manager in relation to the preparation of a draft development plan.

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4 3.3 The manager is then required, under subs (5), to prepare a draft development plan which, subject to such amendments as may be put in place within eight weeks of the submission of the draft development plan to the elected members, becomes the draft development plan for the purposes of the legislation.

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5 3.4 There follows a further period of consultation both with...

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