High Court of Ireland Decisions

1. The Applicant, with the intention of applying for Judicial Review with injunctive relief apparently on a quia timet basis, obtained an interim injunction on 31st May, 1999 restraining the Respondents until after Thursday, 2nd (sic.) June, 1999 from the adoption of the draft development plan for Athy without giving due consideration to the submissions made on behalf of the Applicant in writing on 25th May, 1999.

2. The matter came before me on its return date. Application had not then been made for Judicial Review and I agreed to hear the matter on the undertaking to apply for judicial review within 7 days. The parties agreed that in lieu of hearing an application for an interlocutory injunction, I would decide issues arising in the matter as set out on an issue paper dated 3rd June, 1999.

3. This provided as follows:-

4. The Affidavit of Mr. Joseph Fitzpatrick, solicitor for the Applicant, and Mr. Thomas Maddock, Town Clerk to the Respondent were opened to me.

5. Mr. Fitzpatrick states that he was told by letter dated 25th May, 1999 from Mr. Maddock that the Applicant's submission dated 24th May, 1999 would be placed before the forthcoming meeting of the Respondent on 31st May, 1999 but that the Respondent was of opinion that a further amendment of the development plan to cater for the Applicant's submission could not be legally effected. He was further told by Mr. Maddock on 26th May, 1999 that the Respondent could not adopt the Applicant's submission as it would constitute a material alteration of the development plan and that there were no procedures in being to allow for these to be done or to be adopted.

6. Mr. Maddock states in his Affidavit that in so far as the Applicant's submissions relate to the amendments of the draft development plan, it is accepted that there is an obligation for the Respondent to take all such representations into consideration before arriving at a decision. But the Respondents do not accept the submissions in so far as they relate to the inclusion of lands at Ardrew, Athy for zoning as submissions in accordance with Section 21A. He states the meeting of 31st May stands adjourned until after the result of this application. He further says it is the intention of the Respondent to fully consider the representations made by the Applicant in so far as they relate to the amendments of the draft development plan when the meeting reconvenes.

7. In the original draft development plan, there was no provision for rezoning for development for housing. In the amended draft plan, the Respondent proposed the inclusion of 150 acres for the development of new residential areas. This was one of 10 proposed amendments to the draft development plan.

8. The Applicant's submission relates to lands at Ardrew, Athy, Co. Kildare comprising 13.56 hectares owned by Eamon Salmon and over which the Applicant has rights under a contract to purchase. In summary, the Applicant submitted that the 150 acres for residential zoning is inadequate; the choice of the 150 acres is arbitrary and illogical; the inclusion of the lands at Ardrew for zoning would be more appropriate; and the Council's objectives could be achieved by rezoning this site.

9. Section 21A of the Local Government (Planning and Development) Act, 1963, (as inserted by Section 37 of the Local Government (Planning and Development) Act, 1976) provides:-

10. Subsection (4)(a) deals with any provision to preserve a structure and subsection 4(b) deals with any provision to preserve a public right of way. Subsection (5) deals with a right of application to the Circuit Court in respect of the provision referred to in subsection (4)(b).

11. The Applicant argues that the Respondent must take into consideration all his representations, not just those that criticise the actual amendments but also in so far as they propose a different amendment by the inclusion of the lands at Ardrew for rezoning.

12. It is submitted that there can be more than one proposed amendment even though Section 21A(2) refers to "the proposed amendment", because the singular includes the plural (see Section 11, Interpretation Act, 1937). This would not appear to be contested by the Respondent since they proposed 10 amendments and gave notice in Iris Oifigiuil of "amendments" to the draft plan.

13. The Applicant argues that there is nothing in Section 21A to prevent the Respondent from considering his representations to rezone the lands at Ardrew and, if they think fit, proposing a further amendment even though this would require another month's notice so that representations could be made. The Applicant says the Respondent may reject his representations on the substance but not on jurisdiction.

14. The Respondent argues that a proposed amendment (or amendments) which would involve material alteration to the draft plan can take place once and once only after which a decision is made to adopt the plan with or without the proposed amendments. This is to avoid an unending series of proposals to amend. They claim they are constrained under Section 21A to have only one set of amendments. They claim that "such other amendment (not being an amendment providing for the preservation of a structure or public right of way)" can only apply to amendments which would not involve a material alteration.

15. The Respondent cited Keogh -v- Galway Corporation , (1995) 3 I.R. 457 at 466 et. seq. This case concerned a material contravention of the development plan where the Corporation purported to pass a resolution altering the development plan in accordance with the steps provided for in Section 21 of the Local Government (Planning and Development) Act, 1963. No issue was taken by the Applicant that the Corporation complied with their obligations under Section 21. Four days before the draft variation was due to be heard, the Corporation, on the advice of its official, altered the number of zones in which halting sites for travellers would be provided and the zones were reduced from 10 to 7. It was argued that the removal of 3 zones from the original variation as advertised constituted a material alteration and would bring an obligation to publish the proposed amendment as required by Section 21A, subsection (2). It was submitted on behalf of the Corporation that it had decided the removal of 3 zones from 10 was not a material alteration but it was held that no where was consideration given as to whether it was a material alteration or not. Since there had been no decision, the Court considered the matter de novo and was in no doubt that this was a material alteration to the draft proposed variation. Since it was, the failure to comply with the statutory obligation to give notice, as provided in Section 21A(2), invalidated the purported resolution.

16. This case differs from the present one in that the Galway case involved a proposed variation of a development plan involving material alteration for which due notice was given under Section 21 followed by an amendment to the proposed variation also involving material alteration for which no notice was given. In this case, the draft development plan was duly dealt with in accordance with Section 21 and 10 proposed amendments were notified under Section 21A. The matters at issue in this case did not arise in the Galway case.

17. There are not separate provisions dealing with amendments to a draft development plan and amendments to a proposed variation of a development plan under Section 21A(2). If the proposed amendment would, if made, be a material alteration of the draft concerned (i.e. of the draft development plan or proposed variation) then notice must be given and any representations have to be taken into account. The planning authority may, as they think fit, make the proposed plan (or proposed variation) with or without the proposed amendment or with such other amendment (not being one mentioned in subsections (4)(a) or (b) as having regard to the particular circumstances they consider appropriate.

18. Since the phrase, "such other amendment" is qualified specifically by the words in brackets, I do not consider that there is further implied qualification that the amendment must be one which does not involve a material contravention. If as a result of representations made following publication of a notice under Section 21A, the planning authority decides that having regard to the particular circumstances there should be a further amendment, there is nothing to suggest that this could not happen. I do not think the Oireachtas intended that there should be only one shot at amending a draft plan or draft variation but left it to the planning authority itself to decide, having taken into account any representations if a further amendment should be considered. It seems to me that the planning authority have to take into account all representations including not only those which may suggest the amendment proposed is defective or wrong in some way but also those which suggest the amendments do not go far enough. The planning authority, having considered these on the merits, can then decide what to do. If it decides there is merit in the suggestion that a further amendment is advisable it must consider whether this would involve a material alteration to the draft plan. If it does not, it can proceed to make the plan with or without the proposed amendments and such other amendments. If it does involve a material alteration, then the decision must be postponed until the notification required by Section 21A(2) is completed.

19. It is does not seem to me that a never ending series of amendments would result. The procedure is at all times under the control of the planning authority. It is only if the planning authority considers that another amendment is appropriate, having regard to the particular circumstances, that the process is extended. If the planning authority decides on the merits that no further amendment should arise, then it can proceed to deal with the proposed amendments and that is the end of the process. But I consider it would be wrong for the planning authority to consider that it has no power to make a decision on the merits that a further amendment is appropriate even if this would involve a further notice period.

20. It is true that there is only one amendment ultimately, i.e. the amendment to the draft development plan (or to the proposed variation of a development plan) referred to in subsection (1) but it is not true that the consultation process outlined in subsection (2) cannot be extended to include a further amendment, which itself requires a further notice period, if the planning authority so determines.

21. In my view, the issues raised can be answered as follows:-

22. The Applicant's written submission of 25th May, 1999, in respect of the proposed amendment to the draft development plan published on 27th April, 1999 is a representation to be taken into account by the Respondent in accordance with Section 21A(2), not only in so far as it criticises the proposed amendment but also in so far as it suggests the amendment did not go far enough and that a further amendment is needed.

23. It does not appear to me to be appropriate to state it is a submission within the meaning of Section 21A(3)(d) since subsection (3) deals with the contents of the notice which must be published. The representations which must be considered are "any representations" referred to in subsection (2). There is no reference to any "relevant" representations. It seems to me it is the planning authority itself which must decide what weight to attach any particular representation.

24. The Respondent is not precluded by Section 21A from deciding to propose a further amendment in addition to the amendments published on 27th April, 1999 whether in response to the Applicant's submission or otherwise. It may do so if the Respondent considers it appropriate having regard to the particular circumstances provided that if it involves a material alteration to the draft development plan, further notice must be given under Section 21A(2) and (3).