High Court quashes planning zoning decision as nullity for failing statutory public consultation requirements.

Neutral Citation: [2013] IEHC 493

THE HIGH COURT

JUDICIAL REVIEW

RECORD NUMBER: 2011 No. 863 JR

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 1950, AS AMENDED

BETWEEN:

TESCO IRELAND LIMITED

APPLICANT

AND

CORK COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 8TH DAY OF NOVEMBER 2013:

1. In 2004 the applicant, “Tesco”, purchased about 3.14 hectares of land close to the town of Charleville, Co. Cork, and adjacent to

the N20 and Love Lane, and presumably with the intention of obtaining planning permission for a supermarket development. The lands

were within the boundary of the then current Kanturk Electoral Area Local Area Plan (“LAP”) 2005 – 2011, and under that LAP were

zoned for residential development, subject to specific objective ‘R-01 – Medium density residential development to include a mix of

house types and size’.

2. Nonethelsss, Tesco made an application for a shopping centre development on these lands, and not surprisingly perhaps, that

application was refused by decision dated 16th February 2006 on the grounds that it would constitute a material contravention of the

residential zoning for the lands under the LAP.

3. An opportunity presented itself towards the end of 2010 for the applicant to seek to have the zoning changed to one which would

permit their development to take place, since Cork County Council published its Outline Strategy for the Kanturk Electoral Area on the

4th January 2010, and invited submissions. I will return to the events leading up to the resolution of the respondent Council dated

25th July 2011 which is the subject of the present proceedings in due course. But suffice to say that at this stage the applicant

participated in the process by making submissions at all stages leading up to that resolution.

4. In November 2010 the Draft Kanturk Electoral Area LAP 2011 – 2017 was prepared which indicated a zoning in respect of the lands

as “Town Centre/Neighbourhood Centre Uses with a Specific Objective ‘T-02 – Use primarily for large stand alone convenience retail

development subject to high quality design and layout, particularly with regard to addressing the streetscape and the provision of

parking, and satisfactory proposals to deal with traffic and access’”.

5. The publication of this Draft Plan invited submissions. Again, Tesco made a submission broadly welcoming the proposed decision

with regard to the zoning of these lands. Clearly such a zoning would facilitate its plans for the site. Not surprisingly perhaps, other

trading interests in the town were opposed to this zoning and made submissions against it. The Manager, having considered all the

submissions, issued his Report on the 22nd February 2011 in which, inter alia, he made a recommendation at paragraph 2.3.5 thereof,

that approximately 2 hectares at the northern end of the Tesco lands should revert to residential use, and that the balance of 1.4

hectares would be designated as “ ‘X-01’ with a specific objective to reserve the site as a long term opportunity for the expansion of

convenience retailing in Charleville”. He went on to state immediately thereafter:

“Such long term needs will arise when there is a significant increase in population of the town and its hinterland and the

construction of the M20 Motorway is completed”. [emphasis added]

6. This reference to population growth and the construction of the proposed M20 Motorway is of central importance to the present

application, as will be seen in due course.

7. At the next meeting of the Council on 30th March 2011 the elected members would oppose the proposal and vote to propose a

material alteration which would see all the subject lands zoned residential under the new plan.

8. According to the first affidavit of Andrew Hind filed on behalf of the Council, the Council held an informal meeting with elected

representatives on the 4th March 2011, ahead of the meeting to be held on the 30th March 2011 in order to hear their concerns

about this recommendation. It would appear from his affidavit that the elected members considered that this recommendation did not

go far enough. Among their concerns seems to have been one concerning traffic, and at least one member appears to have indicated

his view that there should be no development of further retail units until such time as the M20 was completed.

9. In a further Interim Report dated 18th March 2011, the Manager stated that this site represented the “best available site for the

long term expansion of convenience retail uses within the town”, and went on to explain why he considered this to be so. He referred

again to the Draft Plan and to the recommended X-01 zoning proposed therein in relation to 1.4 hectares, and stated:

“Supporting text in the body of the plan states that the development of the site shall be linked to a significant increase in

population and acknowledges that the M20 will also contribute to the growth of the town. Development of this site is not

directly contingent on the commencement or completion of work on M20 as this may be delivered before there is

significant population growth in the town” [emphasis added]

10. Nevertheless, the elected members of the Council tabled a motion for the Council meeting scheduled for the 30th March 2011.

This motion proposed that the applicant’s lands should retain a residential zoning and not change to town centre retail zoning. The

motion was carried.

11. I would pause at this point in the narrative to remark that it seems to be clear from the underlined sentence set forth in

paragraph 9 above that as far as the Manager was concerned, the critical catalyst for a development of this site for convenience

retail to be permitted would be a significant growth in population, since he states that the M20 itself might be delivered ahead of such

population growth. So it is population growth which is being emphasised as being a pre-requisite for further development in the long

term, rather than the construction of the M20 itself. Though I should point out that the Council refers to the word “directly”

highlighted above, and which they say nevertheless means that it could be seen as ‘indirectly’ linked, and therefore linked.

12. On the 21st April 2011 the Council published a notice that material alterations were proposed to the draft Kanturk Electoral Area

LAP and again called for submissions on the proposed amendment i.e. an amendment that the Draft Plan be amended to indicate a

residential zoning for the entire of the applicant’s site. Submissions were invited, and were to be made before the 18th May 2011.

Only two submissions were in fact made. One was from a member of the public which supported the amendment, and the other was

from Tesco which opposed the amendment.

13. It is important to note the terms of the proposed material alteration to the draft plan, upon which submissions were invited by the

notice published on the 21st April 2011. The Draft Kanturk LAP in its original form had shown the applicant’s entire site zoned for

“Town Centre/Neighbourhood Centre Uses with a Specific Objective T -02 – Use primarily for large standalone convenience retail

development ………”. The Draft Plan had gone on to refer to the proposed M20 Motorway and the fact that Charleville stood to

benefit from that motorway, and had referred to an anticipated population growth. But, despite the Manager’s proposal that the site

be divided so that only 1.6 hectares would be zoned for retail development (the balance remaining residential), the material alteration

to the draft LAP as put forward by the elected members was that the entire site revert to residential zoning, as it had been under the

previous 2005 – 2011 LAP. That is the proposal upon which submissions were invited, and on which the applicant made its

submissions.

14. In its submissions, Tesco proposed that that the subject lands be designated a Special Policy Area and that the proposed

amendment be replaced with an objective X–01 as follows:

“X-01 Long Term Opportunity Site (1.4 hectares) for the expansion of convenience retail facilities and/or commercial

uses subject to high quality design and layout, particularly with regard to addressing the streetscape and the provision

of parking and satisfactory proposals to deal with traffic and access. Any proposals for retail development must

demonstrate compliance with the provisions of the County Retail Strategy and Retail Planning Guidelines.”

15. This proposal was thought to be reasonably compatible with the views of the Manager as seen in his various reports, though the

Council notes in its affidavits that the applicant’s submission failed to refer to the Manager’s recommendation that the long term need

for the development of the site would arise when there was an increase in population, and his view that the M20 would contribute to

that growth. The Council through Mr Hind has noted that the applicant’s submission on the proposed material alteration made no

reference to either population growth or to the construction of the M20. In response to that remark, Tesco has stated that the

reason why its submission made no submission in relation to the M20 and the fact that it would contribute to growth in population, is

that the Manager in his February 2011 Report simply referred to the M20 in the context of population growth, and Tesco took no issue

with that statement. Tesco believes that while the construction of the M20 would facilitate population growth, that growth would not

be dependent on its construction – a view that could be taken as concurring with the view of the Manager as described in paragraph

9 above, though each party says that it means different things.

16. Whatever it was intended to mean, the applicant says that nowhere in the proposal upon which submissions were invited, and

which had been tabled by the members, was there any suggestion that the Council would vote, as it did in due course, to amend the

Draft LAP in a way that linked any development of the applicant’s site not only to a growth in population but also to the

commencement of the construction of the M20 motorway. In other words, there would be no possibility of a permission being granted

for the development by the applicant of any retail development on the site until the M20 was actually commenced. The applicant

submits that the latter was a new proposal – a different proposal from that which had been proposed and published by notice, and

upon which it was invited to make submissions, and that had it been presented in a proposal to amend the plan in the way that has

now occurred, it would have made a different submission.

17. Following the receipt of submissions, the Manager prepared another Report dated 15th June 2011, and in it suggested that the

proposal put forward by the elected members be excluded and replaced with a revised X-01 objective and supporting text as follows:

“X-01 Long term opportunity site (1.4 Ha) for the expansion of convenience retail facilities in the form of a supermarket

subject to high quality design and layout, particularly with regard to addressing the streetscape and the provision of

parking and satisfactory proposals to deal with traffic and access (including the submission of a Traffic and Transport

Assessment). See Map on page 99 of this report.”

The additional supporting text to be included in the LAP was as follows:

“The need for the development of the X-01 shall be linked to a significant increase in population of the town and its

hinterland reflected in the development of additional housing. The construction of the M20 Motorway will also contribute

to the growth of the town”. (emphasis added)

18. Again, one notes the fact that the need is linked to population growth and not the construction of the M20, though the latter is

seen as a contributor of the former. That additional text in my view supports the meaning which the applicant contends for the

passage earlier referred to at paragraph 9, and as already discussed briefly in paragraphs 11 and 15 above.

19. The next meeting of the elected members of the Council took place on the 19th July 2011. At that meeting the members passed a

resolution by way of “further modification” to the material alteration that the northern portion of the applicant’s lands be zoned

residential, and that the remaining portion comprising 1.4 hectares be zoned as a Special Policy Area with the following specific

objective:

“X–01 Long Term Opportunity Site for the expansion of convenience retail facilities in the form of a supermarket subject

to high quality design and layout, particularly with regard to addressing the streetscape and the provision of parking and

satisfactory proposals to deal with traffic and access, including the submission of a Traffic and Transport Assessment.

The need for the development of these lands shall be linked to a significant increase in population of the town and its

hinterland (reflected in the development of additional housing) and to the commencement of the phase of the M20

Motorway that includes the Charleville bypass.” (emphasis added)

20. By formal resolution dated 25th July 2011 the Council made the Local Area Plan subject to the modifications agreed at the

meeting on the 19th July 2011.

21. The applicant complains about the final portion of this objective. They say this is new. It will be recalled that the proposed

material alteration proposed by the members and on which submissions were invited was to revert the zoning of the entire site to

‘residential’. If that proposal had been adopted, the zoning would have reverted to residential for the entire site. That was the

proposed alteration on which the applicant made its submission, as invited. If the proposed alteration had been put to the vote as

published and was rejected by the members, then the effect would have been to revert to the T-02 Town Centre/Neighbourhood

Centre Uses as contained in the original Draft Kanturk LAP published in November 2010.

22. The applicant has referred to Section 20(3)(n) of the Planning and Development Act, 2000, as amended (“the Act of 2000”) in

this respect, and notes that it provides that the elected members when making the LAP can make it with all the proposed material

alterations, or some, or even none of the proposed alterations. However, it submits that where the elected members choose to

change the proposed material alteration they may do so, as provided by Section 20(3) (o) and (q) of the Act of 2000, only where the

further modification to it is minor in nature, and therefore not likely to have a significant effect on the environment or adversely affect

the integrity of a European site. Inter alia, the applicant submits that the way in which the proposed alteration was modified into the

form which was eventually passed by the members cannot be described as a minor alteration, and has been passed contrary to these

provisions..

23. The applicant submits that the decision of the Council to adopt this zoning which links it to the commencement of the M20

Motorway is in breach of the principles of fair procedures in that it was denied an opportunity to make submissions in respect of that

part of Specific Objective X-01 which now links the development of the lands as a shopping centre to the commencement of the

phase of the M20 Motorway that includes the Charleville Bypass, and which has never been the subject of public consultation.

24. The applicant submits also that the decision is irrational and/or unreasonable since there was no evidence before the elected

members which was capable of justifying the decision in the teeth of the reports and recommendations of the Manager to the elected

members that the development of the lands was not “directly contingent” on the commencement of the M20. The applicant relies also

on the absence of reasons or any adequate reasons furnished by the elected members necessary to justify the decision by the

Council.

25. Finally the applicant submits that the decision was made contrary to statute, since the modification to the proposal as originally

put forward, and which was adopted, was not minor in nature, and was in fact a very significant departure from the proposed material

alteration, therefore contrary to Section 20(3)(q)(1) of the Act of 2000.

26. I should add for the sake of completeness, that in its Statement of Grounds the applicant sought also a declaration that Section

20(3)(q) of the Act of 2000 is repugnant to the Constitution, and invalid for that reason. That relief is no longer pursued on this

application, and the proceedings have been confined to reliefs sought against the first named respondent.

27. The respondent denies that there was any lack of fair procedures in relation to the zoning of the land which includes a specific

objective which links any development of the lands to the commencement of the M20 Motorway. It believes that at all times the

statutory procedures were correctly followed during the LAP process, and that it was clear to all concerned, including the applicant,

that issues of traffic, access and the construction of the M20 were significant matters for consideration in the process, and points

out that the initial Outline Strategy itself had clearly linked development and the construction of the M20 when it stated therein:

“The completion of the M20 Motorway to the west of Charleville is a priority for future development of the area.”

28. The Council points out also that these issues were raised in submissions in response to the Outline Strategy, and that the Draft

LAP itself raised issues of traffic and the proposed M20 Motorway. It refers to the initial zoning of the applicant’s lands for Town

Centre development to consist of a large stand alone convenience retail development, and to the fact that the objective for this site

included a number of qualifications about the provision of parking, and satisfactory proposals to deal with traffic and access. It points

out also that a shopping centre development by its nature generates substantial amounts of additional traffic, often affecting an area

beyond the immediate confines of the development site itself. The Council submits that it was perfectly entitled to take account of

these matters when deciding on the zoning of the applicant’s lands, so that traffic issues normally associated with such a

development would be addressed before any development of the site would be permitted.

29. On the other hand, the applicant in response says that while the M20 and its importance generally to the town was indeed

mentioned in the Outline Strategy, there is nothing therein or in the draft LAP for Kanturk or the material amendments which indicated

that the Council considered that any development of the site was premature pending the construction of the M20 Motorway, and the

Charleville Bypass.

30. The applicant submits that this was a very significant restriction imposed upon the applicant’s lands, and says that it could not

reasonably have been anticipated by the applicant from anything which had preceded it. The applicant submits that it is clear from all

the prior stages of the process, including the Manager’s reports to the elected members, that while the M20 was referred to, as were

traffic issues, and while no doubt the M20 construction was going to have a significant bearing on population growth in the town and

its hinterland, there was never any indication given at any stage of the process that not only would future development of the

applicant’s site be linked to population growth, but also linked to the commencement of the M20 Motorway construction, which

included the Charleville Bypass. Accordingly, the applicant submits that it never got an opportunity to make submissions in order to

try and persuade the elected members not to impose such a restriction, the effect of which is in its opinion to postpone any

development of the applicant’s lands to beyond the life of the LAP itself. The applicant also refers to the fact that no other land being

zoned under this LAP was subjected to a restriction that linked its development to the commencement of the M20 Motorway and the

Charleville Bypass. The applicant alone was subjected to this restriction.

31. Following the commencement of these proceedings in September 2011, a decision has been subsequently taken by Government in

November 2011 that the construction of the M20 will not now take place for the foreseeable future, as there is no funding available

for the development. That fact was not known by the time these proceedings were commenced, even if there may have been some

fears that this would occur. It does not speak to the fairness or otherwise of the procedures which led to the decision of the Council

reached on the 19th July 2011 and the 25th July 2011, but it does put into sharp focus the effect which the restriction must now

have for the applicant. The applicant has submitted that in effect the applicant’s lands are sterilised. Mr Hind in his affidavit refers to

this submission as being disingenuous given that even the applicant proposed in his May 2011 submission proposed a special policy

area designation with a description “Long Term Opportunity Site”, and submits that linking development to population growth and the

construction of the M20 is not to be seen as a sterilisation, but rather as a statement of fact. In his second affidavit Mr Hinds has

stated that the applicant is not correct when it states that the delivery of the M20 is not related to the issue of population growth.

He says that he was personally involved in the calculations of future population growth for Charleville in County Development Plan,

and he says that he “knows” that the population target allocated to Charleville for 2020 was enhanced because of the proposed

N20/M20 improvements.

31. The applicant refers also to the fact that its lands are the only lands within this Plan which has been subjected to this restriction

in the Draft Plan. No other party’s lands has been so restricted.

32. Mr Hind in his first affidavit has stated that the draft LAP itself highlighted that traffic and the construction of the M20 was

relevant, and that it did so is apparent from the fact that other interested parties other than the applicant had made submissions

specifically addressing these issues with respect to the applicant’s lands, and refers to a comment in a submission by the Charleville

Chamber of Commerce which he quotes in his affidavit and which referred to existing traffic congestion problems, and that this

situation would only be exacerbated by a large development on this site “due to constraints on accessing the site from the N20”. He

refers also to the Council’s response to this submission states:

“The long term needs will arise when there is a significant increase in population of the town and its hinterland, reflected

in the development of additional housing, the provision of new employment opportunities and the construction of the

M20 Motorway.”

33. Mr Hind has referred to submissions in similar vein received from the Charleville Traders and also from the National Roads Authority,

and considers that “it was therefore patently clear that traffic and the construction of the M20 was highly relevant to all

development in Charleville including the applicant’s lands”. He refers also to the reference in the Manager’s Report in February 2011 to

the applicant’s site being a “long term opportunity site” and to reference to the need for development of same being linked to a

significant growth in population, and further the statement that “the construction of the M20 Motorway will also contribute to the

growth of the town”. He submits that it was clear that the development was being linked to a population growth which in turn was

being linked to the construction of the M20 Motorway.

34. Mr Hind blames the applicant for failing to address in any of its submissions the question of the M20 Motorway, and maintains that

it is clear from the applicant’s own submission in May 2011 that it was aware of the Manager’s recommendations because in its May

2011 submission it stated that the proposed zoning was broadly in line with the Manager’s recommendations in his February 2011

Report.

35. Not surprisingly the applicant rejects what Mr Hind has stated in this regard. In his second affidavit Finbarr Barry states that he

accepts that traffic issues related to the applicant’s site were referred to in the draft Kanturk Plan, and that issues such as parking

and access and congestion would have to be dealt with. However, he goes on to say that these are issues which are independent of

the M20 construction as such, in that they relate to capacity and linkages from the existing road network.

36. Mr Barry argues also that the extract from the submission of the Chamber of Commerce to which Mr Hind has referred and as set

forth above, relates to the existing traffic flows in Charleville, and not to the M20, which again he says is a separate issue. That and

other submissions referred to are, in Mr Barry’s view, all talking about existing access, congestion and traffic issues, and that these

are all reflected within the draft plan, and of course would have to be addressed in the context of any application by the applicant to

develop the site in due course. But he denies that these remarks and comments justify the restriction imposed under the material

alteration made to the draft Plan, or support the contention that the applicant had a fair opportunity to make submissions in relation

to linking development to the commencement of the M20 Motorway question.

37. On this application five affidavits have been filed by Finbarr Barry, to which Andrew Hind has sworn four by way of reply. I do not

consider it necessary to set forth everything which is asserted by Mr Barry and every response made thereto by Mr Hind. It is clear

that the sides are far from agreement on most issues. They see things, naturally enough, from their respective positions.

38. Before addressing some of the legal submissions made by Eamonn Galligan SC for the applicant, and by Stephen Dodd BL for the

respondent, I will set forth the relevant provisions of Section 20(3) of the Act of 2000, as amended, as these are crucial to this case,

as they set forth the procedures which must be adopted by the Council when adopting a draft local area plan, making a material

alteration thereto by resolution of the elected members, and for making a further modification to the material alteration. It is the

latter which is of central importance to the present application.

39. The relevant provisions of Section 20(3) of the Act of 2000 as amended are these:

“ (3) (a) The planning authority shall, as soon as may be after consideration of any matters arising out of consultations

under subsections (1) or (2) but before making, amending or revoking a local area plan—

(i) send notice of the proposal to make, amend or revoke a local area plan to the Minister, the Board and to the

prescribed authorities (and, where applicable, it shall enclose a copy of the proposed plan or amended plan),

(ii) publish a notice of the proposal in one or more newspapers circulating in its area.

(b) A notice under paragraph (a) shall state—

(i) that the planning authority proposes to make, amend or revoke a local area plan,

(ii) that a copy of the proposal to make, amend or revoke the local area plan and (where appropriate) the

proposed local area plan, or proposed amended plan, may be inspected at such place or places as are specified in

the notice during such period as may be so stated (being a period of not less than 6 weeks),

(iii) that submissions or observations in respect of the proposal made to the planning authority during such period

will be taken into consideration in deciding upon the proposal.

(iv) that children, or groups or associations representing the interests of children, are entitled to make

submissions or observations under subparagraph (iii).]

(c) (i) Not later than 12 weeks after giving notice under paragraph (b), the manager of a planning authority shall

prepare a report on any submissions or observations received pursuant to a notice under that paragraph and shall

submit the report to the members of the planning authority for their consideration.

(ii) A report under subparagraph (i) shall—

(I) list the persons who made submissions or observations,

(II) summarise the issues raised by the persons in the submissions or observations,

(III) contain the opinion of the manager in relation to the issues raised, and his or her recommendations in relation

to the proposed local area plan, amendment to a local area plan or revocation of a local area plan, as the case

may be, taking account of the proper planning and sustainable development of the area, the statutory obligations

of any local authority in the area and any relevant policies or objectives for the time being of the Government or

of any Minister of the Government.

(cc) In the case of each planning authority within the GDA, a report under subparagraph (c)(i) shall summarise the

issues raised and the recommendations made by the DTA in a report prepared in accordance with section 31E and

outline the recommendations of the manager in relation to the manner in which those issues and recommendations

should be addressed in the proposed local area plan.

(d) (i) The members of a planning authority shall consider the proposal to make, amend or revoke a local area plan

and the report of the manager under paragraph (c).

(ii) Following consideration of the manager’s report under subparagraph (i), the local area plan shall be deemed to

be made, amended or revoked, as appropriate, in accordance with the recommendations of the manager as set

out in his or her report, 6 weeks after the furnishing of the report to all the members of the authority, unless the

planning authority, by resolution—

(I) subject to paragraphs (e) to (r), decides to make or amend the plan otherwise than as recommended in the

manager’s report, or]

(II) decides not to make, amend or revoke, as the case may be, the plan.

(e) Where, following consideration of the manager’s report, it appears to the members of the authority that the draft

local area plan should be altered, and the proposed alteration would, if made, be a material alteration of the draft local

area plan concerned, subject to paragraphs (f) and (j), the planning authority shall, not later than 3 weeks after the

passing of a resolution under paragraph (d)(ii) (inserted by section 9 of the Act of 2002), publish notice of the proposed

material alteration in one or more newspapers circulating in its area, and send notice of the proposed material alteration

to the Minister, the Board and the prescribed authorities (enclosing where the authority considers it appropriate a copy

of the proposed material alteration).

(f) The planning authority shall determine if a strategic environmental assessment or an appropriate assessment or both

such assessments, as the case may be, is or are required to be carried out as respects one or more than one proposed

material alteration of the draft local area plan.

(g) The manager shall, not later than 2 weeks after a determination under paragraph (f) specify such period as he or

she considers necessary following the passing of a resolution under paragraph (d)(ii) as being required to facilitate an

assessment referred to in paragraph (f).

(h) The planning authority shall publish notice of the proposed material alteration, and where appropriate in the

circumstances, the making of a determination that an assessment referred to in paragraph (f) is required, in at least

one newspaper circulating in its area.

(i) The planning authority shall cause an assessment referred to in paragraph (f) to be carried out of the proposed

alteration of the local area plan within the period specified by the manager.

(j) A notice under paragraph (e) or (h) as the case may be shall state that—

(i) a copy of the proposed material alteration of the draft local area plan may be inspected at a stated place and

at stated times during a stated period of not less than 4 weeks (and the copy shall be kept available for inspection

accordingly), and

(ii) written submissions or observations with respect to the proposed material alteration of the draft local area

plan may be made to the planning authority within the stated period and shall be taken into consideration before

the making of any material alteration.

(k) Not later than 8 weeks after publishing a notice under paragraph (e) or (h) as the case may be, or such period as

may be specified by the manager under paragraph (g), the manager shall prepare a report on any submissions or

observations received pursuant to a notice under that paragraph and submit the report to the members of the authority

for their consideration.

(l) A report under paragraph (k) shall—

(i) list the persons who made submissions or observations under paragraph (j)(ii),

(ii) summarise the issues raised by the persons in the submissions or observations,

(iii) contain the opinion of the manager in relation to the issues raised, and his or her recommendations in relation

to the proposed material alteration to the draft local area plan, including any change to the proposed material

alteration as he or she considers appropriate, taking account of the proper planning and sustainable development

of the area, the statutory obligations of any local authority in the area and any relevant policies or objectives for

the time being of the Government or of any Minister of the Government.

(m) The members of the authority shall consider the proposed material alteration of the draft local area plan and the

report of the manager under paragraph (k).

(n) Following consideration of the manager’s report under paragraph (m), the local area plan shall be made or amended

as appropriate by the planning authority by resolution no later than a period of 6 weeks after the report has been

furnished to all the members of the authority with all, some or none of the material alterations as published in

accordance with paragraph (e) or (h) as the case may be.

(o) Where the planning authority decides to make or amend the local area plan or change the material alteration of the

plan by resolution as provided in paragraph (n)—

(i) paragraph (p) shall apply in relation to the making of the resolution, and

(ii) paragraph (q) shall apply in relation to any change to the material alteration proposed.

(p) It shall be necessary for the passing of the resolution referred to in paragraph (n) that it shall be passed by not less

than half of the members of the planning authority and the requirements of this paragraph are in addition to, and not in

substitution for, any other requirements applying in relation to such a resolution.

(q) A further modification to the material alteration—

(i) may be made where it is minor in nature and therefore not likely to have significant effects on the environment

or adversely affect the integrity of a European site,

(ii) shall not be made where it refers to—

(I) an increase in the area of land zoned for any purpose, or

(II) an addition to or deletion from the record of protected structures.”

40. I have set forth what seem to me to the provisions of section 20 (3) which are relevant to the issues in this case. There are a

few other paragraphs but they do not seem to have a bearing on the case. I have set forth the above paragraphs for the purpose of

showing how the legislature has laid out an elaborate and detailed set of procedures for the various stages of the process leading to

the adoption of a new local area plan. There are a number of stages to the process, and at each stage the plans and proposals are

published and submissions are invited, whereupon the submissions are considered by the Manager, who then makes a report and

recommendations for the assistance of the Council members, the latter being not binding. The members can choose to accept the

recommendations of the Manager or not as they decide.

41. It will be seen in paragraph (n) thereof that the members can, having considered the manager’s report decide to make or amend

the local area plan “with all, some or none of the material alterations as published”. Those alterations are those upon which

submissions were invited following publication. Alternatively, the members may, as provided in paragraph (o) decide to “change the

material alteration of the plan by resolution”. Importantly, paragraph (q) provides for when this may be done and when it may not be

done.

42. Such a “further modification”, as it is described in (q) may be made where it is “minor in nature”. It may not be done where, inter

alia, it would result in “an increase in the area of land zoned for any purpose”. It is clear from this scheme that where the “further

modification” is “minor in nature”, it is not intended by the Oireachtas that a further opportunity be given to members of the public to

make submissions of the minor modification to the material alteration. Otherwise, when devising such a detailed set of procedures, it

would have provided for such a further round of publication and submissions. The Oireachtas has decided that in such a case (i.e.

minor modification) there is no need as a matter of fairness for that opportunity to be provided. That makes complete sense, since in

circumstances where the further modification is minor in nature only, then no interested party will be adversely affected other than in

a minor way, or indeed at all.

43. There is no definition or other guidance given in the Act for what is covered by “minor in nature”. Each instance of such a further

modification will have to be considered individually in any particular case, and all the circumstances of each case will have to be

considered in order to decide whether the nature of the further modification was such that an interested party, and who complains, is

or stands to be, affected by the further modification in a way that is significant, such that it is not for that party “minor in nature”,

and therefore one in respect of which it was, under the statutory scheme and its intention, entitled to have been given an

opportunity to make a further submission before the further modification was voted through on a resolution.

44. If the further modification in question is found not to be minor in nature, it seems to me that the section has not been complied

with, where that opportunity was not given to the complaining party. The Council must act in accordance with the powers provided

by the Act. It must be presumed, given the presumption of constitutionality which the Act enjoys, that the constitutional right to

fairness and natural justice is fulfilled by the nature of the elaborate procedure provided for. Where those procedures are faithfully

adhered to, and the section complied with in all respects, it will not be for this court to add a layer of consultation and submission

that is not provided for in respect of a further modification to the material alteration. To that extent the respondent is correct when

Mr Dodd submits, as he did, that the Act does not make provision for an opportunity for further consultation and submissions upon a

further modification. He has relied upon for example the judgment of Charleton J. in Wexele v. An Bord Pleanala, unreported, High

Court, 5th February 2010 at para. 13. He has relied also upon the judgment of Denham J. (as she then was) in Dellway v. NAMA

[2011] IESC 14 where she stated that “the right to be heard, as with other constitutional rights, is not absolute”, and to certain

comments of Murphy J. in Haverty v. An Bord Pleanala [1987] IR 485, and of Kearns J. (as he then was) in Evans v. An Bord Pleanala,

unreported, High Court, 7th November 2003, and of McMahon J.in Klohn v. An Bord Pleanala [2009] 1 IR 59, each in its own way

supporting the view that the consultative process cannot have been intended to be interminable and that the opportunity to make

submissions must at some point come to an end.

45. In relation to the reference to the judgment of Denham J. in Dellway, I would in passing note also that in her judgment she stated

that:

“Thus applying that analysis, as the proceedings here derive from statute, there being no fixed procedures, NAMA must

create and carry out the necessary procedures, NAMA must supplement it in such a fashion as to ensure compliance

with constitutional justice.”

46. In the present case “fixed procedures” have been provided for. The question therefore is whether the provisions of section 23 (3)

of the Act of 2000 have been complied with. If they have, then the applicant can have no complaint that not being given an

opportunity to make a further submission before the Council adopted the “further modification to the material alteration” that the

need for development of its land be linked not only to population growth but also to the commencement of the M20 Motorway,

breached its entitlement to fair procedures. The Act of 2000 enjoys the presumption of constitutionality. The applicant as part of his

reliefs originally sought a declaration that the provisions of section 20(3)(q) of the Act are unconstitutional, but it has indicated that

this relief is not being pursued.

47. Mr Dodd for the respondent has submitted that the further modification put forward at the meeting on the 19th July 2011 was not

significant (and was therefore minor) for a number of reasons:

• It is clear from the evolution of the local area plan through its various stages that the need for the development of the

applicant’s lands was linked to the M20 Motorway. He submits that the “further modification at most simply made this

more explicit.

• Inserting a statement that the need for the development is to be linked to the commencement of the M20 is simply

fulfilling the Council’s statutory obligation to ensure that there is consistency between the local area plan and other plans

such as the county development plan, and also government policy.

• Regardless of whether the words were introduced by way of modification to the material alteration in relation to “X-01”,

it is clear that the commencement and construction of the M20 would be vary material in any consideration of “proper

planning and sustainable development” in the context of any application for development of the lands in question, since

the M20 is central to the vision for Charleville, the requirement for integration between land use and transportation policy

as expressed in the County Development Plan and the Planning Acts, and the content of the South Western Regional

Guidelines

• In any event, the X-01 zoning is not itself determinative of any application for planning permission that might be made in

the future, but is merely one component of what would be considered..

• The words linking the need for development to the commencement of the M20 is merely making explicit the Council’s

thinking, which in any event was clearly evident from the documents and reports generated up to that point during the

process.

48. On the question of the significance of the further modification, Mr Dodd refers to the fact that the applicant’s own proposal

referred to the X-01 site as a Long Term Opportunity Site, implying that even the applicant dies not consider that a need for its

development arises at this point in time. He suggests that it is difficult to identify what factors would other than the M20 could give

rise to such opportunity in the future. He submits also that it was clear from the preceding steps in the process that it was always

the case that the existing problems of access, traffic and congestion were going to be addressed by the M20 Motorway construction.

49. Another argument put forward by the respondent is that the modification is a minor one, since in fact it was reducing the extent

of the change sought to be brought about by the proposed material alteration. That is because the material alteration itself and upon

which the applicant had made its submissions was one whereby the site would be zoned back to residential in its entirety – something

which the applicant opposed. Mr Dodd has argued also in relation to paragraph (q) of section 20 (3) that the modification was minor

because it is not likely to have significant effects on the environment or adversely affect the integrity of a European site. Given the

wording of paragraph (q) it would seem that Mr Dodd seeks to confine the meaning of “minor in nature” by reference to what follows

those words in the paragraph. As set forth already, paragraph (q)(i) states:

“ (q) A further modification to the material alteration—

(i) may be made where it is minor in nature and therefore not likely to have significant effects on the environment

or adversely affect the integrity of a European site …(emphasis added)

50. The respondent submits also that it is not a significant modification as it was not in fact a new proposal if one compares it to the

draft plan and the material alteration, but rather a compromise between the two. He characterises the further modification as

involving the continued existence of what was being modified by decreasing the residential and re-affirming the retail purpose in

respect of the 1.4 hectares of the site as originally published.

51. It seems to me that the arguments put forward in this regard by Mr Dodd are directed more to whether it would be reasonable

and permissible for the material alteration to the draft plan to have included the wording which linked the need for development of the

applicant’s lands to the commencement of the M20 Motorway. The answer is that it would, and for at least some of the reasons set

forth in the summary of Mr Dodd’s submission set forth in paragraph 47 above. But of course, in that event the applicant would have

had the opportunity to make submissions on that proposal, just as it made its submission on the material alteration actually published

in relation to the residential zoning for the entire site.

52. I agree with the submission made by Mr Galligan for the applicant that if the further modification proposed by the members on the

19th July 2011 would have constituted a material alteration if it had been included in the original draft plan, it would have had to be

put on display so that interested parties could have the opportunity to make submissions thereon in accordance with the statutory

procedures provided in that regard. If it comes reasonably within any sensible view of what is a material alteration, it cannot be seen

as meeting the description of being “minor in nature”. On the contrary it is a modification which would come within section 20(3)(e) of

the Act of 2000. It must in my view be seen in that light. The further modification was therefore a matter in respect of which the Act

intends that there would be publication and an opportunity for submissions to be made and considered, and reported on by the

Manager, ahead of the passing of any resolution to amend the draft plan in accordance with it.

53. If that is so, and I believe it to be correct, then the further modification proposed on the 19th July 2011 cannot be seen as “minor

in nature” on that occasion, as “minor” must exclude anything which is substantial in the sense of being of substance as opposed to

some insignificant or immaterial ‘tweaking’ to the material alteration under consideration. In the present case there is no question of

the further modification put forward on the 19th July 2011 being mere ‘tweaking’. Rather it was a totally different proposal to that

which sought a return of the entire site to residential zoning. The fact that the M20 and population growth and so forth had been a

live issue during the process is in my view not relevant to the essential question as to whether the further modification put forward

was minor in nature and one therefore that could be dealt with under section 20(3)(q) of the Act. That fact does not speak to the

nature and character of the further modification. Neither is it correct to limit the concept of “minor” to the words which follow it in

the section, namely “and therefore not likely to have significant effects on the environment or adversely affect the integrity of a

European site”. Those words in fact emphasis the real purpose of limiting the further modifications permitted to be those which are

minor, because a modification which is likely to be one which has a significant effect on the environment or adversely affect the

integrity of a European site is one clearly upon which public consultation would be required. It confirms the central importance of

public consultation in relation to any significant or substantial change which the further modification seeks to achieve. If the further

modification is in fact a material alteration in disguise, it cannot have the protection from public consultation which is provided in

section 20(3)(q)(i) of the Act. It is not “minor in nature”. In the present case it was an entirely different material alteration in reality.

54. In my view the decision made on the 19th July 2011 and the subject of the resolution of the Council on the 25th July 2011 is a

nullity. It is a decision made in breach of the requirements of the Act. It does not fall to be condemned because of any breach of

general constitutional principles of fair procedures, as was the case in Dellway, but rather because it is a decision taken in breach of

the statutory procedures provided, and which reflect fair procedures, and fairly protect property rights.

55. It is also argued by the applicant that the decision of the 25th July 2011 is in breach also of section 20(3)(q)(ii). Without going

into that argument in detail and Counsels’ submissions, I should say that in the circumstances of this case I agree with the applicant’s

submissions. The decision of the 25th July 2011 does “result in an increase in the area of land zoned for any purpose”. The 2005 -

2011 LAP zoned this entire site residential. The material alteration proposed by the elected members on the 30th March 2011 was to

retain that zoning for the entire of the applicant’s site. However, the further modification sought to zone 1.4 hectares differently,

namely the retail use as set forth in the X-01 objective – “a Special Policy Area with the following specific objective: Site for the

expansion of convenience retail facilities [etc] …… “. Such a zoning increases the amount of land to be reserved for retailing by re-

zoning some land previously zoned residential. The words of the section are clear and unambiguous in this regard.

56. The applicant has also argued that the decision made on the 25th July 2011 was irrational/unreasonable, and also that the Council

failed to provide reasons or any adequate reasons for it decision. In view of my conclusion that the decision is in breach of the

statutory procedures and is a nullity, it is unnecessary to reach any conclusion on these further grounds upon which relief is sought.

57. For the reasons I have given, the applicant is entitled to an order of certiorari. However, I will hear Counsel for the parties as to

what form the order to be made should take.