Tristor Ltd v Minister for Environment, Heritage and Local Government and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 November 2010
• Neutral Citation: [2010] IEHC 397
• Court: High Court
• Date: 11 November 2010

[2010] IEHC 397

THE HIGH COURT

[No. 552 J.R./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

PLANNING & DEVELOPMENT ACT 2000 S31(1)

PLANNING & DEVELOPMENT ACT 2000 S31

PLANNING & DEVELOPMENT ACT 2000 S11(5)

DELLWAY INVESTMENT LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS UNREP HIGH 1.11.2010 2010 IEHC 364

LETT & CO LTD v WEXFORD BOROUGH CORP & ORS UNREP CLARKE 23.5.2007 2007/34/7055 2007 IEHC 195

WILEY v REVENUE CMRS 1994 2 IR 160 1993 ILRM 482 1992/4/1204

XJS INVESTMENTS LTD, IN RE 1986 IR 750 1987 ILRM 659 1986/8/1935

WICKLOW HERITAGE TRUST LTD v WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

PLANNING & DEVELOPMENT ACT 2000 S10

PLANNING & DEVELOPMENT ACT 2000 S10(1)

PLANNING & DEVELOPMENT ACT 2000 S10(2)

PLANNING & DEVELOPMENT ACT 2000 S10(3)

PLANNING & DEVELOPMENT ACT 2000 S10(2)(A)

MIN FOR ABORIGINAL AFFAIRS v PEKO-WALLSEND LTD 162 CLR 24 1986 HCA 40

DUBLIN CO COUNCIL v EIGHTY FIVE DEVELOPMENTS LTD (NO 2) 1993 2 IR 392 1992 ILRM 815 1992/2/335

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1)

INTERPRETATION ACT 2005 S2(1)

INTERPRETATION ACT 2005 S2

PLANNING & DEVELOPMENT ACT 2000 S28

PLANNING & DEVELOPMENT ACT 2000 S28(1)

PLANNING & DEVELOPMENT ACT 2000 S27(2)

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

MCEVOY & SMITH v MEATH CO COUNCIL 2003 1 IR 208

NORTH WALL PROPERTY HOLDING CO LTD & DUNNE v DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY UNREP FINLAY-GEOGHEGAN 9.10.2008 2008/46/10025 2008 IEHC 305

PLANNING & DEVELOPMENT ACT 2000 S31(2)

TALBOTGRANGE HOMES LTD v LAOIS CO COUNCIL & ORS UNREP MCCARTHY 2.12.2009 2009/54/13678 2009 IEHC 535

PLANNING AND ENVIRONMENTAL LAW

Development plan

Planning policy decisions - Overall strategy - Role of respondent - Construction of planning documents - Function of courts - Legitimate expectation - Property rights - Constitutional justice - Reasons - Fair procedures - Whether respondent had authority to issue direction - Rose of respondent in taking view as to whether proper strategy - Respondent's views on proper planning and development of area - Whether respondent considered that draft development plan failed to set out overall strategy or significantly failed to comply with Act of 2000 - Whether legitimate expectation could arise - Whether respondent was obliged to give opportunity to interested parties to make representations - North Wall Quay Property Holding Company Ltd v Dublin Docklands Development Authority [2008] IEHC 305, (Unrep, Finlay Geoghegan J, 9/10/2008) and Talbotgrange Homes Ltd v Laois County Council [2009] IEHC 535, (Unrep, McCarthy J, 2/12/2009) followed - Dellway Investments v National Asset Management Agency [2010] IEHC 364, (Unrep, Div HC,1/11/2010); Lett & Company Ltd v Wexford Borough Corporation [2007] IEHC 195, (Unrep, Clarke J, 23/5/2007); Wiley v Revenue Commissioners [1994] 2 IR 160; In re XJS Investments Ltd [1986] IR 750; Wicklow Heritage Trust Ltd v Wicklow County Council (Unrep, McGuiness J, 5/2/1998); Peko-Wallsend v Minister for Aboriginal Affairs [1986] 162 CLR 24; Dublin City Council v Eighty Five Developments Ltd [1993] 2 IR 392; Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84 and McEvoy v Meath County Council [2003] 1 IR 208 considered - Planning and Development Act 2000 (No 30), ss 10, 27, 28, 31 and 50 - Local Government (Planning and Development) Act 1963 (No 20), s 56(1) - Interpretation Act 2005 (No 23), s 2(1) - Relief granted (2010/552JR - Clarke J - 11/11/2010) [2010] IEHC 397

Tristor Ltd v Minister for the Environment, Heritage and Local Government

Facts: The applicant was a landowner of lands zoned for economic development. The applicant challenged the direction of the Minister issued pursuant to s. 31 Planning and Development Act 2000 requiring Dun Laoghaire Rathdown County Council to delete their designation of Carrickmines as a district retail centre. The Council then amended their Development Plan accordingly. The Minister had delivered a first direction, which was then replaced by a second direction and both were similar though not identical in terms. The issue arose as to whether the Minister could conclude that the plan had failed to set out an overall strategy, which factors the Minister could take into account and whether the conclusion of the Minister was sustainable. The question arose as to the legitimate expectations of the application and the standard of review, the application of the Interpretation Act 2005, the proper interpretation of s. 31 of the Act of 2000 and relevant criteria and the application of principles of fair procedures.

Held by Clarke J. that the two directions of the Minister had to be quashed. There was a general obligation that all parties be given an opportunity to be heard in relation to planning matters. Even if the Minister had a legitimate basis for intervening pursuant to s. 31, the Minister had a range of options open to him as to the precise form of direction to give. At a minimum the Minister was obliged to afford some proper level of ability to make representations to all interested parties. Even if the direction was sustainable otherwise, the failure to give interested parties an opportunity to be heard rendered the direction invalid. No legitimate expectation arose on the facts.

Reporter: E.F.

1. Introduction

2 2 1.1 There has been much debate over the years as to the extent to which it is appropriate to involve political decisions makers (both at local and national level) and professional planners (again at both local and national level) in making final decisions in the planning process. The courts also have their proper role where decisions involve the administration of justice such as where judicial review of planning decisions is sought or enforcement measures are proposed. However, so far as the ordinary planning process is concerned, the courts have a very limited role.

3 3 1.2 The extent to which it is appropriate that particular functions in the planning process are conferred on political decision makers or professional planners and the extent to which those decisions should be made either locally or nationally are primarily questions of policy to be determined by the Oireachtas and set out in relevant legislation. Subject to determining the proper interpretation of any such legislation and, if raised, considering whether such legislation is within the bounds of what is constitutionally permissible, it is no function of the courts to seek to second guess the policy decisions made by the Oireachtas in that regard.

4 4 1.3 This case principally concerns one such question of construction. It has traditionally been the case that the making of development plans has been a function allocated by legislation to political decision makers. By and large the formulation of a development plan is a matter which is conferred, under the Planning and Development Act, 2000 ("the 2000 Act") on the relevant planning authority with the decision ultimately resting on the elected members of that planning authority. However, s. 31(1) of the 2000 Act confers on the Minister for the Environment, Heritage and Local Government ("the Minister"), a role in relation to the formulation of development plans. At the heart of these proceedings is a dispute between the parties as to the extent of that role although, as will appear, there are some other issues raised.

5 5 1.4 In simple terms, the applicant ("Tristor") owns lands at The Park Carrickmines which is within the functional area of the second named respondent ("Dún Laoghaire Rathdown Council"). During the course of the formulation by Dún Laoghaire Rathdown Council of its current development plan, Tristor proposed that the relevant lands at Carrickmines should be designated as a district centre for retail purposes. Ultimately, the elected representatives on Dún Laoghaire Rathdown Council voted in favour of that proposition. Prior to a final decision being taken, the Minister had made representations or submissions to Dún Laoghaire Rathdown Council against the designation of the lands in questions as a district centre. It would also appear that the County Manager of Dún Laoghaire Rathdown Council was opposed to that designation.

6 6 1.5 Thereafter, the Minister purported to issue a direction (or more accurately and for reasons which will become apparent, two separate directions) which had as their effect, a requirement that Dún Laoghaire Rathdown Council delete the designation of Carrickmines as a district retail centre with a lettable space of up to 25,000sq m from the relevant development plan and a further requirement that the lands in question revert to their previous zoning being Objective E which is to provide for economic development and employment.

7 7 1.6 In compliance with that Ministerial Directive, Dún Laoghaire Rathdown Council amended the development plan accordingly. Tristor contests the validity of that Ministerial Directive while accepting that Dún Laoghaire Rathdown Council, having received what on its face appeared to be a valid direction under s. 31 of the 2000 Act, had no option but to comply.

8 8 1.7 It follows that these proceedings are, in substance, between Tristor and the Minister with Tristor contesting the Minister's exercise of his power under s. 31 and the Minister defending his actions. The notice party ("Cradder") was potentially affected by the zoning but having filed written submissions supportive of the...