Ref. Ares(2022)8842896 - 20/12/2022
208
The Irish Reports [2003]
Tony McEvoy and
Michael Smith, Applicants, v.
Meath
County Council, Respondent [2001 No. 359 JR]
High Court 2nd September, 2002
High Court 24th January, 2003
Planning and development – Development plan – Adoption of plan – Strategic planning
guidelines – Regional planning guidelines – Whether planning authority had re-
gard to strategic planning guidelines in making and adopting development plan –
Planning and Development Act 2000 (No. 30 ) ss. 21(4) and 27(1).
Practice – Costs – Public interest – Discretion of court – Prolongation of proceedings
– Transcripts – Whether unsuccessful applicant entitled to costs – Rules of the
Superior Courts 1986 (S.I. No. 15) O. 99, r. 1(4).
Section 27(1) of the Planning and Development Act 2000 provides as follows:-
“A planning authority shall have regard to any regional planning guidelines in
force for its area when making and adopting a development plan.”
The applicants applied for a declaration that the respondent in making and adopt-
ing the development plan for County Meath failed to have due regard to the “strategic
planning guidelines for the greater Dublin area”. The applicants further applied for an
order by way of
certiorari to quash the decision by the respondent to make and adopt
the plan. The strategic planning guidelines for the greater Dublin area were deemed
regional planning guidelines within the meaning of s. 21 of the Act of 2000.
Held by the High Court (Quirke J.), in dismissing the application, 1, that the obli-
gation imposed on the respondent by s. 27 (1) of the Act of 2000 to have regard to the
strategic planning guidelines for the greater Dublin area when making and adopting its
development plan, did not require it rigidly to comply with the guidelines’ recommen-
dations or even necessarily to adopt the strategy and policies outlined therein. It could
depart from them for
bona fide reasons consistent with the proper planning and
development of the area for which they have planning responsibility.
Glencar Exploration plc. v. Mayo County Council (No. 2) [2002] 1 I.R. 84 fol-
lowed.
Enfield London Borough v. Secretary of State for the Environment [1975]
J.P.L. 155;
R. v. C.D. [1976] 1 N.Z.L.R. 436;
R. v. Police Complaints Board ex
parte Madden [1983] 1 W.L.R. 447 and
Simpson v. Edinburgh Corporation [1961] S.L.T. 17 considered.
2. That the applicants failed to discharge the onus that the respondent acted irra-
tionally and that it did not have before it relevant material which would support its
decision.
O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39
followed.
Following the hearing of submissions on the question of costs it was:
Held by the High Court (Quirke J.), in ordering that the respondent pay 50% of the
applicants’ costs of the proceedings and the full costs of the daily transcript, 1, that the
proceedings raised public law issues which were of general importance and the
applicants had no private interest in the outcome of the proceedings. The applicants
acted solely by way of furtherance of a valid public interest in the environment and the
proceedings constituted a “public interest challenge”.
1 I.R.
McEvoy v. Meath County Council 209
H.C.
O’Shiel v. Minister for Education [1999] 2 I.R. 31
and
R. v. Lord Chancellor, ex
parte Child Poverty Action Group [1999] 1 W.L.R. 347 considered.
2. That the trial of the proceedings was unnecessarily prolonged by the vast
amount of documentation which had been analysed and considered in order to
determine questions of fact which could have readily determined by agreement between
the parties and the majority of such issues of fact were determined in favour of the
applicants.
Cases mentioned in this report:-
Enfield London Borough v. Secretary of State for the Environment
[1975] J.P.L. 155.
Glencar Exploration plc. v. Mayo County Council [1993] 2 I.R. 237.
Glencar Exploration plc. v. Mayo County Council (No. 2) [2002] 1
I.R. 84; [2002] 1 I.L.R.M. 481.
Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 I.R. 270; [1998] 2
I.L.R.M. 401.
O’Connor v. Nenagh Urban District Council (Unreported, Supreme
Court, 16th May, 2002).
O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.
O’Shiel v. Minister for Education [1999] 2 I.R. 321; [1999] 2 I.L.R.M.
241.
R. v. C.D. [1976] 1 N.Z.L.R. 436.
R. v. Lord Chancellor, ex parte Child Poverty Action Group [1999] 1
W.L.R. 347; [1999] 2 All E.R. 755.
R. v. Police Complaints Board, ex parte Madden [1983] 1 W.L.R. 447;
[1983] 2 All E.R. 353.
Simpson v. Edinburgh Corporation [1961] S.L.T. 17; [1960] S.C. 313.
Judicial review.
The facts have been summarised in the headnote and are more fully set
out in the judgment of Quirke J.,
infra.
The High Court (O’Higgins J.) granted the applicants leave to apply
for judicial review on the 31st May, 2001.
The application was heard by the High Court (Quirke J.) on the 16th to
19th, the 23rd, to 26th, the 30th and 31st July and the 14th August, 2002.
Ian Finlay S.C. (with him
Colm Mac Eochaidh) for the applicants.
Parick A. Butler S.C. (with him
Thomas Clarke) for the respondent.
Cur. adv. vult.
210
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
Quirke J. 2nd September, 2002
By order of the High Court (O’Higgins J.) made on the 31st May,
2001, the applicants were given liberty to seek the following reliefs by way
of judicial review:-
(1) an order declaring that in making and adopting a development plan
for the county of Meath in March, 2001, the respondent failed to
have due regard to the strategic planning guidelines for the greater
Dublin area published on the 25th March, 1999, as required by law
and that in consequence the plan is void and of no effect and;
(2) an order quashing the decision of the respondent to make and
adopt the plan.
Sequence of relevant events
On the 25th March, 1999, strategic planning guidelines (hereafter
called “the guidelines”) were published by the local authorities for the
greater Dublin area and by the Department of the Environment and Local
Government with the object of:-
(a) providing a strategic planning framework for development
plans affecting the Dublin and Mid-East regions and;
(b) detailing the preferred direction for land use and transportation
in those regions in the period up to the year 2011.
In April, 2000, a review and update of the guidelines was published
which concluded that the greater Dublin area (comprising Dublin City and
the counties of Dun Laoghaire – Rathdown, Fingal, Kildare, Meath, South
Dublin and Wicklow) was growing more rapidly than envisaged so that
some revised recommendations were necessary in that light.
On the 1st January, 2001, pursuant to the coming into effect of Part II
of the Planning and Development Act 2000 the guidelines were deemed to
be regional planning guidelines within the meaning of s. 21(4) of the Act of
2000.
On the 5th March, 2001, the respondent adopted the Meath county
development plan 2001 and on the 20th March, 2001, notice of the
decision to make and adopt that plan was published in An Iris Oifigúil.
In April, 2001, a further review and update of the guidelines was pub-
lished which reviewed the effect of the guidelines, expressed some
concerns, made recommendations and identified planning priorities for the
greater Dublin area in the year 2001.
On the 31st May, 2001, the first applicant, who is an elected member
of Kildare County Council and the second applicant, Mr. Smith, who is
chairman of An Taisce (the National Trust for Ireland) sought and obtained
liberty to seek the relief which is sought herein and on the 25th October,
1 I.R.
McEvoy v. Meath County Council 211
Quirke J. H.C.
2001, it was ordered by the High Court (Kelly J.) that these proceedings
should proceed to hearing as if commenced by plenary summons without
the need for pleadings and with certain liberty to the parties to adduce
evidence
viva voce.
The evidence adduced at the hearing of this action was largely docu-
mentary in nature comprising evidence on affidavit and with a number of
documents agreed as evidence by the parties. Oral testimony was adduced
by Mr. Michael Grace on behalf of the applicants and three witnesses (Mr.
Tony McEvoy, Mr. Joseph Horan and Mr. Joseph Fahy) were cross-
examined in respect of their evidence on affidavit.
The applicants’ claim
Sections 21 to 27 inclusive of the Act of 2000 make provision for re-
gional planning guidelines and s. 21(4) of the Act expressly provides that
“…the strategic planning guidelines for the greater Dublin area
…published on the 25th March, 1999, shall have effect as if made under
this Part.” It follows that the guidelines have precisely the same status as
regional planning guidelines for the purposes of the Act and otherwise.
Section 27(1) of the Act of 2000 provides that:-
“A planning authority shall have regard to any regional planning
guidelines in force for its area when making and adopting a develop-
ment plan.”
The applicants claim that in making and adopting the Meath county
development plan (hereafter called the Meath plan) the respondent:-
1. failed in its statutory obligation to have regard to the guidelines;
and
2. adopted a development plan which contained errors on its face
constituting errors on the face of the record which were of such
magnitude as to:
(a) render the decision to make and adopt the Meath plan unrea-
sonable and irrational as a matter of law; and
(b) vitiate the legal effect of the Meath plan.
The guidelines
The stated objective of the guidelines was to put in place a broad plan-
ning framework for the greater Dublin area in order to provide an overall
strategic context for the development plans of each local authority within
the area. This was deemed necessary by reason of “an unprecedented rate
of growth which is reflected in the level of development and building
activity and in the demand for developable land” within the area.
212
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
Within the guidelines a distinction was made between the existing built
up area of Dublin and its immediate environs (called the metropolitan area)
and the remaining part of the area (called the hinterland area) which
comprises extensive areas of countryside together with a range of towns of
various sizes.
The executive summary of the guidelines declares,
inter alia, that:-
“the principal issues in the metropolitan area related to pressure
arising from rapid and intensive development, such as severe traffic
congestion, whilst an important issue in the hinterland area is the spill-
over of development pressures on the built-up area of Dublin … sepa-
rate development strategies for the metropolitan area and the hinterland
area are proposed … in both areas the strategy seeks for and, facilitates
a better balance between public and private transport. This will require
the consolidation of future growth into a limited number of locations
… the growth of the metropolitan area will be balanced by the concen-
tration of development into major centres in the hinterland … these
‘development centres’ will be located on existing or future transporta-
tion corridors … (and) … will be separated from each other and from
the metropolitan area by ‘strategic green belts’.
It is intended that these ‘development centres’ will develop, in the
longer term as self sufficient towns with only limited commuting to the
metropolitan area. This will involve the development of a strong
employment and service base in each of the ‘development centres’.
Development outside the metropolitan area and the identified ‘de-
velopment centres’ in the hinterland area should be primarily to meet
local rather than regional needs. Sporadic and dispersed development
is regarded as unsustainable and should be subject to strict control.”
The principles guiding the strategy within the guidelines were those of
“sustainable development” consistent with European policy emanating
from the European spatial development perspective and the decision to
adopt the strategy was taken after examination of a range of alternative
models and options for the accommodation of the expected levels of
population growth in the area.
Chapter 9 of the guidelines provided that the population of the hinter-
land area (consisting principally of the counties of Meath, Wicklow and
Kildare) was expected to increase by nearly 36%, reaching a total popula-
tion in excess of 400,000 by the year 2011 and representing an increase in
the total number of households in that area of over 63,000 (73%).
The “strategy for hinterland area” was set out in detail in the same
chapter and contained proposals with:-
“the objective of achieving over a period of time, a number of
large towns (or adjacent sets of towns), each complete with a high
1 I.R.
McEvoy v. Meath County Council 213
Quirke J. H.C.
level of employment activities, high order shopping and the full range
of facilities. Ideally such towns should be self sufficient with little or
no commuting to the metropolitan area. However, it is recognised that
this is an unachievable target in the time scale covered by the guide-
lines. Nevertheless the longer term objective should be to achieve self
sufficient towns, and in the meantime to establish the conditions in
these towns to allow for that. It is, therefore, proposed that future de-
velopment in the hinterland area be strongly directed into ‘develop-
ment centres’ comprising of:
Primary centres that is Drogheda, Navan, Balbriggan, Naas-
Newbridge-Kilcullen and Wicklow. Apart from Navan each of these is
on an existing transportation corridor.
Secondary centres at Athy, Arklow and Kildare-Monasterevin, all
on existing or potential transportation corridors … it would be neces-
sary to accommodate local growth in those parts of the hinterland area
outside the proposed ‘development centres’. However development
outside of the designated centres should be strictly limited to local
need. The spread of development intended primarily to serve the met-
ropolitan area and generating significant levels of commuting is neither
environmentally sustainable or economic and should be restricted us-
ing demand management techniques. … The basis for the growth of
the ‘development centres’ is that they do not become primarily dormi-
tory towns for the metropolitan area. For this reason it may be desir-
able to constantly monitor their development and seek to co-ordinate
the release of residentially zoned land to broadly reflect the establish-
ment of employment in the centres. … It is however recognised that
commuting to the metropolitan area will continue from these centres,
at least in the short to medium term and consequently a number of
public transport facilities have been identified as being necessary for
the growth of the major hinterland towns.”
The guidelines conclude by making (at appendix 6) a series of 48 sepa-
rate recommendations which are expressed to have arisen “from the
preparation and formulation of the guidelines.”
Those recommendations describe the development plans of local au-
thorities as:-
“… the principal planning tools for the orderly development of
land and … an important means by which the strategy for the Greater
Dublin Area will be implemented.”
Recommendations 27, 28 and 29 deal with the zoning of land for both
residential and employment use stating that the amount of such land
“should be reviewed in the light of the requirements of the strategy.”
214
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
Particularly, it is expressly recommended (recommendation no. 28)
that, with the exception of a limited provision for local needs, lands should
not be zoned for residential purposes unless such lands are, (a) located
within areas identified for development in the strategy envisaged by the
guidelines, and (b) served by adequate public transport, water supply and
drainage,
etc.
The guidelines further expressly recommend (recommendation no. 29)
that development plans should contain policies controlling development in
areas outside the metropolitan area and the “development centres” to meet
local needs (which should be identified in the plans) only.
The review and update of the guidelines published in April, 2000, con-
cluded that national population and labour force projections prepared by
the Central Statistics Office indicated that the greater Dublin area was
growing more rapidly than envisaged in the original guidelines. It was
therefore considered necessary to revise upwards the population, household
and employment figures given in the original guidelines.
The update estimated that the population figure of 1.65 million which
was envisaged in the guidelines for the year 2011 could now be reached by
the year 2006 and, in particular, it predicted that for the year 2001 the
population of the greater Dublin area was likely to be in the order of 1.535
million (about 2.9% higher than estimated in the guidelines), whilst for the
year 2006 the population was predicted to be in the region of 1.65 million
(about 4.9% higher than estimated in the guidelines).
The further review and update of the guidelines published in April,
2001, which was intended to inform the public of progress with the
implementation of the strategy contained in the guidelines,
inter alia
identified “a divergence across the Hinterland in the interpretation of the
terminology used in the strategic planning guidelines such as ‘local need’
and ‘strategic green belt’.”
One of the seven recommendations made in that document was that
work should be undertaken with each of the constituent local authorities
directed towards preparing a common understanding of the terms “local
need” and “strategic green belt” within the hinterland area for the purposes
of the guidelines.
The Meath plan
The Meath plan is contained in three volumes. The first volume out-
lines the “objectives for the county at large”. The second volume com-
prises “written statements and detailed objectives for towns and villages”
1 I.R.
McEvoy v. Meath County Council 215
Quirke J. H.C.
and is supplemented by a “book of maps” and the third volume deals with
conservation and does not have a specific relevance to these proceedings.
Volume one
Section 2 of Volume 1 of the Meath plan deals with the “strategic
overview and development objectives” of the plan. At para. 2.2.2 (p. 8)
under the heading “implications of the strategic planning guidelines for the
greater Dublin area” the plan expressly provides that:-
“These guidelines, published in May, 1999 and revised in April,
2000, have profound implications for the types of policies to be framed
in this development plan and for the long term future of the county.”
The paragraph then purports to summarise what are considered to be
the main implications of the guidelines for County Meath, confining the
summary to:-
(i) a suggestion that Navan may have a role in “the ‘hinterland’ of
the ‘metropolitan’ part of the greater Dublin area” and
(ii) a conclusion that the landscape and resources of the county
need protection for a variety of reasons.
The paragraph concludes in the following terms:-
“This development plan has been prepared as an implementation
mechanism for the strategy as it would apply to County Meath and a
wide range of policies have been developed to respond to the issues
raised.”
Para. 2.6.2 (at p. 12) of Volume 1 of the plan sets out in some detail
what are considered to be the “implications for urban growth from the
strategic planning guidelines” and concludes (at p. 13) in the following
terms:-
“It is intended therefore that this development plan should set itself
the task of implementing the guidelines as they apply to County
Meath. Key issues that will arise therefore relate to:
• the allocation of the majority share of the forecast population
growth for the county to Navan as the central area of the
county
• restraint in relation to the expansion of south Meath towns
allowing for primary organic rates of growth
• protection of the countryside
• framing of appropriate infrastructural needs with a particular
emphasis on public transport.”
There are further references within the Meath plan to the guidelines as
follows:-
216
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
1. at para. 3.3.1, in the context of the need to increase the density of
residential development at appropriate locations;
2. at para. 3.4, in the context of residential development in rural areas
(para. 3.4.3.(ii) clearly defines the concept of “local needs” in this
context in a manner which is consistent with the provisions of the
guidelines);
3. at para. 2.2.3, under the heading “population trends” providing,
inter alia, that:-
“The population of the county in 1996 was 109,732 per-
sons. … Assuming that the county will play its part of a re-
gional population dynamic, the revised projections of the
strategic planning guidelines for the greater Dublin area indi-
cate that a population of approximately 130,000 could be
reached in 2001, 161,000 in 2006 and 180,000 in 2011. In turn
,of the order of 16,000 extra households would need to be ac-
commodated by 2006 and a further 18,000 households by
2011”;
4. at para. 2.6.6, under the heading “a broad settlement structure”, the
Meath plan sets out an indicative urban population for the county
estimated at a total of 116,700 persons by the year 2006.
On a date between May and October, 2001, the respondent, pursuant to
Part V of the Act of 2000, published a draft housing strategy which,
inter
alia (at table 2.4 thereof), outlined the potential spatial distribution of new
urban households within County Meath and the resulting population for the
year 2007.
On the assumption (made in the Meath plan) that the dispersed rural
population of the county remains constant at the level indicated in the 1996
census (62,881 persons), the Meath plan provides, at para. 2.6.6 thereof,
(taken together with para. 2.4. of its housing strategy) for a spatial distribu-
tion of future population of 195,681 persons by the year 2006 and 244,856
persons by the year 2011.
Volume two
Volume 2 of the Meath plan sets out written statements including writ-
ten development objectives for each of the 30 towns and villages covered
by the plan.
The guidelines are referred to directly (but in a somewhat oblique fash-
ion) in respect of three of these towns and villages (Clonee, Dunboyne and
Dunshaughlin) and indirectly in respect of another (Enfield). Subject to the
foregoing, volume 2 is confined to localised planning detail in respect of
the towns and villages concerned.
1 I.R.
McEvoy v. Meath County Council 217
Quirke J. H.C.
Relevant evidence
The evidence adduced at the hearing of these proceedings established
the following:-
1. On the 3rd July, 1998, the then county secretary, Mr. D. McLough-
lin wrote to all elected members of the respondent advising that a new
county development plan was due for adoption in November, 1999, after
the prior publication and consideration of a draft plan.
2. In February, 1999, the planning department of the respondent pub-
lished a strategic issues statement which:-
a) in its “introduction and overview” declared that it would be guided
by “significant documents such as the regional planning guidelines
being prepared for the greater Dublin area … and other relevant
documents”; and
b) predicted an increase in population for County Meath to approxi-
mately 120,000 by 2001, 133,000 by 2006 and 154,000 by 2011;
requiring 10,000 extra households by 2006 and a further 13,000
households by 2011; representing an increase of over 78% of the
1996 comparable figure; and
c) identified, amongst its “core development objectives”, the follow-
ing:-
(i) “to provide for the location of employment generating devel-
opment in Navan, Trim, Kells, the east coast corridor, the
south Meath fringe and economic corridor and other suitable
urban locations”
(ii) “to accommodate growth of the greater Dublin area to provide
for anticipated growth rates and population only in such cen-
tres where an environmental carrying capacity in terms of
piped services, transportation options and social and commu-
nity infrastructure can be established … in a sustainable man-
ner and at appropriate locations in the county.”
3. On the 6th November, 2000, the then county secretary, Mr. Stewart
wrote to the chairman and each elected member of the respondent advising,
inter alia, that the guidelines had been revised in light of a projected
increase in the growth of population for the greater Dublin area and
stressing that the revised guidelines had restated the need to implement the
strategy of consolidation with associated emphasis on public transport,
etc.
4. Between the 20th October, 1999, and the 5th March, 2001, more
than 70 meetings, attended by elected representatives and officials of the
respondent, were held at various locations throughout the county. All were
related to and concerned the making and adoption of the Meath plan. These
included:-
218
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
(a) special planning meetings of the respondent (notably on the 6th
March, 2000, the 6th November, 2000 and the 5th February,
2001);
(b) meetings of the rural housing sub-committee convened between
November, 1999 and October, 2000, for the express consideration
of Meath plan; and
(c) electoral area meetings attended by the elected members and offi-
cials concerned with individual specific areas affected by the plan.
Minutes of the special planning meetings and of the rural housing sub-
committee record that the guidelines were referred to at all of the meetings
of those bodies.
Minutes of the meetings of the various electoral areas record that the
guidelines were rarely if ever discussed or referred to. At those meetings a
very large number of applications for the residential zoning of land were
considered and many were decided.
Counsel on behalf of the applicants openly suggested that most land
zoning decisions made at these meetings appear to have been influenced
more by pressure and lobbying exerted by interested parties (such as local
landowners) than by regional or other planning considerations. Close
analysis of the minutes of the meetings fortifies that suggestion (which was
not contradicted either in evidence or otherwise on behalf of the respon-
dent). Furthermore, no individual land zoning application, amongst a very
large number considered at more than 50 meetings, appears to have been
determined (or even considered) in the context or against the background
of the guidelines.
5. Both on affidavit and in oral evidence, Mr. Joseph Fahy, the senior
engineer in the planning department of the respondent explained his
understanding of the guidelines in some detail and he insisted that, at all
stages of the process which led to the adoption of the plan, he had informed
the elected members of the respondent of the nature and significance of the
guidelines. He referred to a special presentation on the guidelines made by
a Mr. Niall Cussin to the elected members on the 1st November, 1999,
during which the members were advised of the nature and significance of
the guidelines and of their obligations under the Act of 2000 in relation
thereto. Mr. Fahy is now a member of a special group charged, pursuant to
the provisions of the 2001 update of the guidelines, with the responsibility
of developing a “common understanding” (with other local authorities) of
the terms “local needs” and “strategic green belt” within the context of the
guidelines. That group has met on several occasions since its establishment
in November, 2001 and has now produced a second draft of a proposed
report on the terms concerned.
1 I.R.
McEvoy v. Meath County Council 219
Quirke J. H.C.
6. Mr. Joseph Horan who was county manager at all times material to
these proceedings also testified, outlining his understanding of the guide-
lines and stating that, in addition to his responsibilities as county manager
for Meath, he had been appointed as a member of the steering committee
which helped to prepare the guidelines and that the respondent had been
represented by the then county engineer, Mr. Oliver Perkins on the
technical working group which helped prepare the guidelines and by two
of its elected members (Councillors Oliver Brooks and John Fanning) on
the local and regional authority members committee responsible for the
preparation of the guidelines.
7. On the 15th December, 2000, Ms. Mary Moylan, assistant secretary
of the planning policy section of the Department of Environment and Local
Government wrote a detailed letter on behalf of the Minister for the
Environment and Local Government (hereafter called “the Minister”) to
Mr. Stewart, the then County Council secretary for Meath, referring to
proposed amendments to the Meath plan.
The letter reminded Mr. Stewart of the detail of the strategy set out in
the guidelines and of the Minister’s formal request (in April, 1999) that
each planning authority should ensure that its development plan was in line
with that strategy.
The letter went on to refer to the Minister’s concern about particular
aspects of the Meath plan in relation to zoning in a number of specific
towns and districts. A report was requested from the respondent as a matter
of urgency “… In relation to the issues raised in this letter with specific
reference to the apparent conflict with the strategic planning guidelines for
the greater Dublin area.”
Mr. Stewart replied by letter dated the 6th February, 2001, dealing in
detail with all of the matters raised by Ms. Moylan in her letter of the 15th
December, 2000.
On the 23rd February, 2001, Ms. Moylan wrote again to Mr. Stewart
accepting on behalf of the Minister that the proposed amendments to the
Meath plan were “substantially in compliance with the strategic planning
guidelines for the greater Dublin area” and granting the request for an
extension of time for the adoption of the Meath plan.
8. Extensive oral and affidavit evidence was adduced by the first appli-
cant, during which he explained in detail his understanding of the princi-
ples which underlined the guidelines and of their history, nature and
objectives.
In particular, he drew attention to a number of anomalies and inconsis-
tencies within the Meath plan and its housing strategy relevant to the
estimates for future population growth within the county and relative to the
220
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
proposed spatial distribution of future population with particular reference
to residential zoning.
He expressed the view that both Mr. Horan and Mr. Fahy have misun-
derstood and continue to misunderstand the guidelines and their core
objective and he stated that, as a consequence, the elected members and
officials of the respondent have also misunderstood and continue to
misunderstand the guidelines since their understanding had been based
upon the advice of Mr. Fahy and Mr. Horan.
9. Mr. Michael Grace, who is a highly qualified planning consultant,
testified, stating that he is and was at all material times a partner in the firm
of Brady Shipman Martin (a member of the consortium of consultants
which prepared the guidelines). He explained his understanding of the
principles underlining the guidelines and of its intended objectives and he
endorsed the first applicant’s view that Messrs. Fahy and Horan (and by
extension the elected members and officials of the respondent) have
fundamentally misunderstood and continue to misunderstand the guide-
lines and the manner in which they should be applied in the context of the
Meath plan.
The issues and the law
In these proceedings two issues fall to be determined that is to say:-
1. whether the respondent failed in its obligation to “have regard to”
the guidelines as required by s. 27(1) of the Act of 2000; and
2. whether the Meath plan contained errors on its face and otherwise
which were of such magnitude as to:-
(a) render the decision to make and adopt the plan unreasonable
and irrational as a matter of law, and
(b) vitiate the legal effect of the plan?
The
Oxford Dictionary and Thesaurus (Oxford University Press, Ox-
ford, 1995 reprint) defines the term “regard” as,
inter alia, “give heed to;
take into account; let one’s course be affected by; look upon or contem-
plate mentally in a specified way … (of a thing) have relation to; have
some connection with … (followed by to or for) attention or care”.
The most noteworthy feature of these definitions is that the actions
connoted by the term “regard” are permissive in nature,
i.e. the action
involves volition as opposed to taking an action or reaching a conclusion
pursuant to prescription with no choice involved.
The statutory obligation to “have regard to” particular policies and ob-
jectives was considered by the Supreme Court in
Glencar Exploration plc.
v. Mayo County Council (No. 2) [2002] 1 I.R. 84.
1 I.R.
McEvoy v. Meath County Council 221
Quirke J. H.C.
That case concerned the statutory obligation imposed by s. 7 of the
Local Government Act 1991 upon a local authority to “have regard to …
(e) policies and objectives of the Government or any Minister of the
Government insofar as they may affect or relate to its functions”
The High Court (Blayney J.) in
Glencar Exploration plc. v. Mayo
County Council [1993] 2 I.R. 237 considered the matter in the following
terms at p. 248:-
“Counsel for the County Council submitted that since the mem-
bers of the County Council had adjourned the meeting of the 16 De-
cember, 1991 specifically for the purpose of considering the
Department’s letter, they had had regard to the policy of the Govern-
ment as required by the section. I am unable to accept that submission.
Without attempting to define precisely the meaning of the phrase ‘shall
have regard to’ I am satisfied that a local authority could not be said to
have had regard to the policy of the Government in regard to mining
when it adopted as part of its development plan a policy which was
totally opposed to that policy. The members of the County Council
may have considered the Government’s policy but, having considered
it, instead of having had regard to it, it seems to me that they totally
disregarded it.”
He went on to determine the issue on other grounds.
However in the Supreme Court, Keane C.J. expressly decided the issue
as follows in
Glencar Exploration plc. v. Mayo County Council (No. 2)
[2002] 1 I.R. 84 at p. 142:-
“I should add that I am also satisfied that counsel for the respon-
dent was correct in submitting that it had not been established that the
respondent had acted in breach of its statutory obligation pursuant to s.
7(1)(e) of the Local Government Act 1991 to ‘have regard to … (e)
policies and objectives of the government or any Minister of the gov-
ernment in so far as they may affect or relate to its functions’.
There was no evidence to indicate that the respondents simply ig-
nored the letter from the Minister for Energy: on the contrary they ad-
journed the meeting at which they were to make the vital decision so
that the Minister’s view could be considered. The fact that they are
obliged to have regard to policies and objectives of the Government or
a particular minister does not mean that, in every case, they are obliged
to implement the policies and objectives in question. If the Oireachtas
had intended such an obligation to rest on the planning authority in a
case such as the present, it would have said so.”
The statutory obligation to “have regard to” the provisions of a devel-
opment plan was also considered in the Scottish case of
Simpson v.
Edinburgh Corporation [1961] S.L.T. 17.
222
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
In that case the requirement imposed by s. 12 of the Town and Country
Planning (Scotland) Act 1947 for local authorities considering applications
for planning permission to “have regard to the provisions of the develop-
ment plan, so far as material thereto and to any other material considera-
tions” was considered where the owner of a dwelling house sought a
declaration that a purported planning permission granted to the University
of Edinburgh was
ultra vires and void as contravening the city’s develop-
ment plan.
In considering that statutory obligation, Lord Guest observed at p. 20
that:-
“Section 12, which has already been quoted, obliges the local au-
thority in dealing with applications for planning permission to ‘have
regard to the provisions of the development plan so far as material
thereto and to any other material considerations’. It was argued, for the
pursuer, that this section required the planning authority to adhere
strictly to the development plan. I do not so read this section. ‘To have
regard to’ does not in my view mean, ‘slavishly to adhere to’. It re-
quires the planning authority to consider the development plan, but
does not oblige them to follow it. In view of the nature and purpose of
a development plan, to which I shall refer later, I should have been
surprised to find an injunction on the planning authority to follow it
implicitly, and I do not find anything in the Act to suggest that this was
intended.
If Parliament had intended the planning authority to adhere to the
development plan it would have been simple so to express it.”
Simpson v. Edinburgh Corporation [1961] S.L.T. 17 was cited with ap-
proval and followed by Melford Stevenson J. in
Enfield London Borough
v. Secretary of State for the Environment [1975] J.P.L. 155 in relation to
identical provisions contained in s. 29 of the Town and Country Planning
Act, 1971.
In
R. v. C.D. [1976] 1 N.Z.L.R. 436, Somers J. in the Supreme Court
of New Zealand considered the expression “shall have regard to” contained
in s. 5(2) of the Costs in Criminal Cases Act 1967 which required the court
when exercising its discretion in relation to particular costs to “have regard
to all relevant circumstances and in particular … (where appropriate)” to
seven considerations. It was held that the words “shall have regard to” are
not synonymous with “shall take into account”. Somers J. held that:-
“if the appropriate matters had to be taken into account, they must
necessarily in my view affect the discretion under s. 5(1) and it is clear
from s. 5(2) that the matters to be regarded are not to limit or affect
that discretion. I think the legislative intent is that the court has a com-
plete discretion but that the seven matters, or as many are as appropri-
1 I.R.
McEvoy v. Meath County Council 223
Quirke J. H.C.
ate, are to be considered. In any particular case, all or any of the appro-
priate matters may be rejected or given such weight such as the case
suggests is suitable.”
In
R. v. Police Complaints Board, ex parte Madden [1983] 1 W.L.R.
447, the statutory obligation to “have regard to” guidance given by the
Secretary of State relative to disciplinary charges imposed upon the Police
Complaints Board was considered by McNeill J. who found at p. 471 that:-
“… the board’s statutory obligation to have regard to the criteria
means precisely that, no more and no less. If, having had regard to the
Guidance, the board is persuaded that it should accept its Director’s
view and determines accordingly, so be it. If, on the other hand, the
board determines that despite the Director’s view, and bearing in mind
the standard of proof required, disciplinary proceedings should be
recommended or directed it would, it seems to me, be doing precisely
the task which Parliament created it to do.”
It is clear from the foregoing authorities and in particular the decision
of the Supreme Court in
Glencar Exploration plc. v. Mayo County Council
(No. 2) [2002] 1 I.R. 84, that the obligation imposed upon the respondent
by s. 27(1) of the Act of 2002 to “have regard to” the guidelines when
making and adopting its development plan does not require it rigidly or
“slavishly” to comply with the guidelines’ recommendations or even
necessarily to adopt fully the strategy and policies outlined therein.
Rural, urban and regional planning policy matters are primarily within
the remit of the Oireachtas and Chapter III of Part II the Act of 2001 has
been enacted,
inter alia, for the purpose of implementing a particular
regional planning policy.
It may not be without significance that s. 27(2) of the Act of 2000 pro-
vides as follows:-
“The Minister may, by order, determine that planning authorities
shall comply with any regional planning guidelines in force for their
area, or any part thereof, when preparing and making a development
plan, or may require in accordance with Section 31 that an existing
development plan comply with any regional planning guidelines in
force for the area”. (Section 31 empowers the Minister to direct plan-
ning authorities to take such specified measures as the Minister deems
necessary to enforce compliance with the guidelines).
The effect of s. 27(2), therefore, is to vest in the Minister the discre-
tionary power to require compliance by planning authorities with regional
planning guidelines during the preparation or upon the making (and indeed
throughout the duration) of a development plan.
If it had been the intention of the Oireachtas that s. 27(1) should be
construed as imposing upon planning authorities an obligation to “comply”
224
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
with regional planning guidelines then its enactment rendered subs. (2) of
the same section superfluous.
Manifestly, s. 27(1) of the Act of 2000 must be construed as imposing
some obligation upon the respondent.
It is implicit in the judgment of Keane C.J. in
Glencar Exploration plc.
v. Mayo County Council (No. 2) [2002] I.R. 84 and it follows from the
application of reason, that the provisions of the subsection do not permit
the respondent to ignore the guidelines and proceed as if they did not exist.
In seeking to assess or measure the extent of the obligation which is
imposed by the subsection it is difficult to disagree with the view expressed
by McNeill J. in
R. v. Police Complaints Board, ex parte Madden [1983] 1
W.L.R. 447 that the statutory obligation to “have regard to, … means
precisely that, no more and no less.”
I am satisfied that the duty or obligation imposed by s. 27(1) of the Act
of 2000 upon a planning authority when making and adopting a develop-
ment plan is to inform itself fully of and give reasonable consideration to
any regional planning guidelines which are in force in the area which is the
subject of the development plan with a view to accommodating the
objectives and policies contained in such guidelines.
Whilst reason and good sense would dictate that it is in the main desir-
able that planning authorities should, when making and adopting develop-
ment plans, seek to accommodate the objectives and policies contained in
relevant regional planning guidelines, they are not bound to comply with
the guidelines and may depart from them for
bona fide reasons consistent
with the proper planning and development of the areas for which they have
planning responsibility.
It is contended on behalf of the applicants that the respondent failed to
inform itself fully of and to give reasonable consideration to the guidelines
whilst it was engaged in the process of making and adopting the Meath
plan.
It is further contended that the officials and elected members of the
respondent never developed a proper understanding of the principles
underlining the guidelines and of its intended objectives and cannot be
deemed to have “had regard to” something which they have fundamentally
misunderstood.
The evidence adduced on behalf of the applicants established that both
the first applicant and Mr. Grace have clear, deeply held and convincing
views as to the meaning and intent of the guidelines and as to how they
should be applied by the respondent in the Meath plan.
The views expressed in evidence by Messrs. Fahy and Horan on behalf
of the respondent as to the meaning and intent of the guidelines and as to
how they should be best applied for the purposes of the Meath plan were
1 I.R.
McEvoy v. Meath County Council 225
Quirke J. H.C.
less convincing and lacking somewhat in clarity but they were doubtless
just as deeply held as those of the applicants and both men are experienced
in planning matters as evidenced by their respective roles in the preparation
of the guidelines and otherwise.
In dealing with applications of this kind for judicial review of deci-
sions of administrative and other bodies, the court is not concerned with
the merits of the decision. It is concerned with the manner in which the
decision-maker has exercised the power,
i.e., the legality of the decision.
It is no part of my function in these proceedings to make any kind of
determination in relation to conflicting views expressed by expert or other
witnesses as to the meaning or effect of the guidelines or as to their
appropriate application by means of a development plan or otherwise. I am
required to discover whether the respondent, when making and adopting
the Meath plan, informed itself fully of and gave reasonable consideration
to the guidelines with a view to accommodating the objectives and policies
contained in them.
On the evidence I am satisfied that the officials and elected members
of the respondent were informed fully and repeatedly of the existence and
nature of the guidelines and of their significance in the context of the
making and adoption of the Meath plan. This information (as to the
accuracy of which I express no view) was delivered by a number of
different officials on a number of different occasions.
I now must consider whether the respondent gave reasonable consid-
eration to the guidelines with a view to accommodating their objectives
and policies.
The evidence adduced at the hearing of these proceedings strongly
suggests that in a number of respects the Meath plan does not comply with
the guidelines and indeed that in some of its provisions it has substantially
departed from the guidelines’ policies and objectives. Navan is the only
“development centre” identified in the guidelines for which any growth
other than that for “local needs” is recommended. Nonetheless elected
members at electoral area meetings have decided to zone large amounts of
land for residential purposes in dozens of small towns in a manner which
appears to be quite inconsistent with the recommendations of the guide-
lines. As I have already indicated, none of these decisions appear to have
been made in the context or against the background of any consideration of
the guidelines. In many instances “local interests” appear to have overcome
the concept of “local needs”.
Overall, the Meath plan recommends that land sufficient to accommo-
date an enormous population increase should be zoned for residential
purposes in the period up to 2011, notwithstanding the fact that the
226
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
guidelines (and indeed the plan itself) envisage a much more modest
population increase during that period.
In other respects however, (notably in relation to the concept of “local
needs” for rural housing), the Meath plan demonstrates an understanding of
and is consistent with the policies and objectives of the guidelines.
Although the concept of “local needs” in towns other than “develop-
ment centres” is fundamental to the zoning policies recommended in the
guidelines, the concept has not, as yet, been properly identified and defined
by reason of a “divergence of views across the hinterland in the interpreta-
tion of the terminology” (see above). The working group set up to develop
a “common understanding” of the term has not yet reported. Until it does
so, the guidelines must be said to be incomplete, because a central and
pivotal part of the strategy which they recommend (the restriction of
residential development in most towns to accommodate “local needs”
only) cannot be achieved in any kind of satisfactory manner.
In evidence, Mr. Fahy suggested that the many decisions of the re-
spondent to zone land for residential purposes in a manner which was
seemingly inconsistent with the guidelines can be explained by the fact that
the guidelines contained “long term” objectives (he referred to the recogni-
tion in the guidelines of “an unachievable target in the timescale”) and that
the objective in that regard in the Meath plan was to deal pragmatically
with the “short term”. That suggestion is not supported either by evidence
or by examination of the minutes of the meetings at which the decisions
were made. In those minutes no record exists of any discussion of the
guidelines’ concept of “local needs” for housing in towns other than Navan
and indeed it has not been suggested, in evidence or otherwise, that it was
ever considered during those meetings. However it cannot be said that the
respondent gave no consideration to the concept because Mr. Fahy was
specifically appointed to a special group charged with developing a
“common understanding” of the concept and he has attended and contrib-
uted to a number of meetings which were exclusively concerned with that
issue.
On the evidence, therefore I am satisfied that the respondent, in mak-
ing and adopting the Meath plan, gave reasonable consideration to the
recommendations of the guidelines relative to the zoning of land for rural
housing and gave limited and somewhat unsatisfactory consideration to the
guidelines in relation to the zoning of land for residential purposes in towns
other than Navan.
Whilst I am conscious of the fact that, to a material extent the guide-
lines were intended to be implemented by such zoning decisions, I take the
view that the guidelines are themselves flawed to an extent in that they are
and remain incomplete in failing to identify and define the type of consid-
1 I.R.
McEvoy v. Meath County Council 227
Quirke J. H.C.
eration which they expect planning authorities to give to them. Accord-
ingly, although the nature and extent of the consideration given by the
elected members of the respondent to the guidelines in the zoning of land
for residential purposes gives rise to concern (and indeed unease), I am not
satisfied that the evidence adduced on behalf of the applicants has estab-
lished that, when making and adopting the Meath plan, the respondent
failed to “have regard to” the guidelines within the meaning of s. 27 of the
Act of 2000.
The principle of unreasonableness and irrationality was considered by
the Supreme Court (Finlay J.) in
O’Keeffe v. An Bord Pleanála [1993] 1
I.R. 39. The court held,
inter alia, at p. 71 that:-
“Under the provisions of the Planning Acts the legislature has un-
equivocally and firmly placed questions of planning, questions of the
balance between development and the environment and the proper
convenience and amenities of an area within the jurisdiction of the
planning authorities and the Board which are expected to have special
skill, competence and experience in planning questions. The court is
not vested with that jurisdiction, nor is it expected to, nor can it, exer-
cise discretion with regard to planning matters.
I am satisfied that in order for an applicant for judicial review to
satisfy a court that the decision-making authority has acted irrationally
in the sense which I have outlined above so that the court can intervene
and quash its decision, it is necessary that the applicant should estab-
lish to the satisfaction of the court that the decision-making authority
had before it no relevant material which would support its decision.”
The applicants seek, in these proceedings to impugn the Meath plan on
the grounds of irrationality. On the evidence there are a number of incon-
sistencies and errors within the plan which are difficult to reconcile with
reason. For instance, the Meath plan envisages the zoning of sufficient land
to accommodate a future population far greater than the plan’s own
estimates (which are themselves inconsistent with one another) of future
population. However these are errors and inconsistencies affecting particu-
lar aspects of the Meath plan (notably compliance with the guidelines).
Taken as a whole, the plan comprises a coherent statement of the planning
objectives and strategies envisaged for the county of Meath in the six years
to 2007 and the methods of implementation which will be adopted to
achieve them. It is likely to have many critics and detractors throughout its
lifespan.
In considering the issue of irrationality the court is not concerned with
the merits of the plan. In order to succeed in their claim on this ground the
applicants must discharge the onus of establishing that the respondent “had
before it no relevant material which would support its decision” (
O’Keeffe
228
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
v. An Bord Pleanála [1993] 1 I.R. 39). I am not satisfied that the applicants
have discharged that onus.
It follows that the relief sought is refused.
____________________
The High Court (Quirke J.) heard submissions in relation to costs on
the 8th November, 2002.
Quirke J. 24th January, 2003
Having delivered judgment in this case on the 2nd September, 2002, I
heard applications from the parties relative to costs on the 8th November,
2002, which, in summary, comprised an application by the applicants for
an order for costs against the respondent and a corresponding application
by the respondent for an order for costs against the applicants.
In
O’Shiel v. Minister for Education [1999] 2 I.R. 321 the exercise of
this court’s discretion pursuant to O. 99 of the Rules of the Superior Courts
1986 to award costs was considered and, in particular, the “special cate-
gory of case in which the court will award costs to an unsuccessful
plaintiff.”
Six different cases in which costs were awarded to unsuccessful liti-
gants were reviewed by the court which noted,
inter alia, that at the time of
judgment there appeared “to be no statement or record from which the
principle which should govern an application for costs by an unsuccessful
plaintiff in a constitutional action can be deduced.”
In that case, the unsuccessful plaintiffs were awarded the full costs of
the action on grounds,
inter alia, that the proceedings had significance
which extended beyond the sectional interests of the plaintiffs, that it was
in the broader public interests that the extent of various obligations and
rights created by Article 42 of the Constitution should be clarified and that
the primary beneficiaries of the proceedings would have been children who
relied upon their parents to invoke the court’s jurisdiction to vindicate their
constitutional rights.
In
O’Connor v. Nenagh Urban District Council (Unreported, Supreme
Court, 16th May, 2002) the discretion of this court in the matter of costs
was again considered with particular reference to O. 99, r. 1(1) and (4)
where an applicant was refused relief by way of judicial review of a
decision of a planning authority. The court refused to interfere with the
exercise by the trial judge of his discretion to make no order as to costs in
respect of the respondent and to award to a notice party its costs against the
1 I.R.
McEvoy v. Meath County Council 229
Quirke J. H.C.
applicant. The court found at p. 7 that whilst “there is an element of public
interest in this case … it does not involve issues of considerable public
importance”.
In
R. v. Lord Chancellor, ex parte Child Poverty Action Group [1999]
1 W.L.R. 347, Dyson J., dealing with the jurisdiction to make a pre-
emptive costs order acknowledged that there was a distinction to be made
between ordinary private law litigation, on the one hand, and what he
called “public interest challenges
” on the other hand. He explained his
understanding of the concept of a public interest challenge in the following
terms at p. 353:-
“The essential characteristics of a public law challenge are that it
raises public law issues which are of general importance, where the
applicant has no private interest in the outcome of the case. It is obvi-
ous that many, indeed most judicial review challenges, do not fall into
the category of public interest challenges so defined. This is because,
even if they do raise issues of general importance, they are cases in
which the applicant is seeking to protect some private interest of his or
her own.”
In
Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 I.R. 270, Den-
ham J., considering the
locus standi of a plaintiff, observed at p. 296 that:-
“I am satisfied that the applicant is acting
bona fide. That alone
does not give it standing. However, other facts in addition establish
that fact. These include the participation by members of the applicant
in the prior planning and development procedures. This establishes a
connection. I agree with the trial judges that these are sincere and seri-
ous people who have been involved with the development. Also, there
is no doubt that they have evinced a public interest. While not every
person who declares a public interest may be considered to be acting in
and for the public interest such aspiration must be analysed also in the
circumstances of each case. I am satisfied in this case on the facts the
applicant has expressed a valid public interest in the environment. The
issue of the environment presents unique problems, not only in the
courts. In much litigation on
e.g. personal injuries or as to individual
constitutional rights, the party is obvious. In litigation on the environ-
ment, however, there are unique considerations in that often the issues
affect a whole community as a community rather than an individual
per se.”
The instant proceedings comprise a challenge by way of judicial re-
view to the making and adopting of a development plan for County Meath.
The first applicant is an elected member of Kildare County Council
and the second applicant is chairman of An Taisce. Neither of the appli-
cants is seeking, in these proceedings, to protect some private interest of
230
McEvoy v. Meath County Council [2003]
H.C.
Quirke J.
his own. As Denham J. declared in
Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 I.R. 270, an aspiration by an applicant in proceedings such
as these to act in the public interest “must be analysed also in the circum-
stances of each case.” I am satisfied in the circumstances of the instant case
that the applicants have acted solely by way of furtherance of a valid public
interest in the environment and in particular in the interests of those
communities who are affected by the planning considerations applicable to
the greater Dublin area.
I am conscious of the provisions of O. 99, r. 1(4) which provides:-
“The costs of every issue of fact or law raised upon a claim or
counterclaim shall, unless otherwise ordered, follow the event.”
I am, however, also satisfied that the proceedings herein have raised
public law issues which are of general importance where the applicants
have no private interest in the outcome of the proceedings and that they
therefore comprise a “public interest challenge” of the kind described by
Dyson J. in the context of the jurisdiction as to pre-emptive costs orders.
I am also satisfied that in exercising my discretion as to costs in this
case I am entitled to take into account some findings of fact which I have
made and I believe that it is appropriate that I should do so having regard to
the fact that I have concluded that these proceedings comprise a
bona fide public interest challenge.
These proceedings were vigorously contested throughout on all issues
and were correspondingly lengthy in terms of court time. Having heard and
considered all of the evidence, I concluded on the 2nd September, 2002 at
pp. 225 to 226, that:-
“… in a number of respects the Meath plan does not comply with
the guidelines and indeed ... in some of its provisions it has substan-
tially departed from the guidelines’ policies and objectives. Navan is
the only ‘development centre’ identified in the guidelines for which
any growth other than that for ‘local needs’ is recommended. Nonethe-
less elected members at electoral area meetings have decided to zone
large amounts of land for residential purposes in dozens of small towns
in a manner which appears to be quite inconsistent with the recom-
mendations of the guidelines. As I have already indicated none of these
decisions appear to have been made in the context or against the back-
ground of any consideration of the guidelines. In many instances, ‘lo-
cal interests’ appear to have overcome the concept of ‘local needs’.
Overall the Meath plan recommends that land sufficient to ac-
commodate an enormous population increase should be zoned for resi-
dential purposes in the period up to 2011 notwithstanding the fact that
the guidelines (and indeed the plan itself) envisage a much more mod-
est population increase during that period.”
1 I.R.
McEvoy v. Meath County Council 231
Quirke J. H.C.
During the course of the trial, it became necessary to identify and ex-
amine the minutes of more than 70 meetings attended by elected represen-
tatives and officials of the respondent between the 20th October, 1999 and
the 5th March, 2001.
An analysis of the minutes of the meetings disclosed that no land zon-
ing application, amongst a very large number considered at more than 50
meetings, was determined (or even considered) in the context or against the
background of the guidelines.
I am satisfied that the trial of these proceedings was unnecessarily pro-
longed by reason of the fact that a vast amount of documentation had to be
analysed and considered in order to determine questions of fact which
could have been readily determined by agreement between the parties. The
overwhelming majority of those issues of fact were determined in favour of
the applicants and more particularly, it was established on behalf of the
applicants at p. 227 that:-
“the nature and the extent of the consideration given by the elected
members of the respondent to the guidelines in the zoning of land for
residential purposes gives rise to concern (and indeed unease)”
Furthermore, the contention on behalf of the respondent, that zoning
decisions which were inconsistent with the guidelines could be explained
by the fact that the guidelines contained “long term” objectives, was not
supported by any credible evidence and required a complete examination
of the minutes of the various meetings at which decisions were made. This
examination disclosed no record which would support that contention.
In all of the circumstances, I am satisfied that the appropriate exercise
of my discretion requires that the respondent should pay 100% of the costs
of and associated with the daily transcript of the proceedings and 50% of
the applicants’ costs of and incidental to the proceedings.
Solicitors for the applicants:
Michael Campion & Co.
Solicitors for the respondent:
M.A. Regan, McEntee & Partners.
Conor Gallagher, Barrister
____________________