High Court dismisses certiorari against Galway County Council for inadequate planning summary and missing minutes.

[2024] IEHC 604

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2022.0000689]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS

AMENDED)

BETWEEN

BAILE BHRUACHLAIN TEORANTA, COILL BHRUACHLAIN TEORANTA, BAILE EAMOINN

TEORANTA AND GLANN MOR CUAN TEORANTA AND GLANN MOR CEIBH TEORANTA

APPLICANTS

AND

GALWAY COUNTY COUNCIL

RESPONDENT

JUDGMENT of Humphreys J. delivered on Friday the 1st day of November 2024

1. Landowners in Co. Galway made submissions to the council primarily seeking rezoning of

their lands to residential or tourism uses. In October 2021, the chief executive (CE) summarised

the relevant submission extensively and recommended no change in relation to the areas sought to

be zoned residential, something with which the members agreed. The CE recommended no zoning

for the area that the applicants ultimately wanted specified for tourism purposes, whereas the

members disagreed and zoned that area open space, giving a reason. The landowners now demand

certiorari based on an alleged inadequate summary of their submission and an alleged lack of

reasons for the open space zoning, as well as unavailability of agendas which they never sought and

minutes which didn’t exist as minutes at the material time because the drafts hadn’t been approved

by the members, and which weren’t sought until after the procedure for submissions on the

residential zoning issues had closed. The issue here is whether these are valid grounds for certiorari

in the circumstances.

Geographical context

2. The application concerns three areas owned by the applicants (different applicants owning

different lands) at Maigh Cuilinn, An Spidéal and An Ceathrú Rua in Conamara, Co. Galway. The

latter site is a quayside property at Céibh an tSrutháin which is about 1.5 km from An Ceathrú Rua

proper – although diffuse ribbon development wouldn’t be unknown in the Conamara area so it

seems legitimately described as in An Ceathrú Rua.

Facts

3. On 18th June 2020, the respondent council gave notice to the public of its intention to review

the Galway County development plan 2015-2021, thereby commencing the statutory process of

making the new plan.

4. In September 2020, agents on behalf of the applicant companies (MKO Ireland) made a

submission (the first submission) on the issues paper which would inform the making of the draft

new plan. These submissions addressed the three sites the subject of the grounds of challenge.

5. In May 2021, the respondent published the Galway County draft development plan 2022 –

2028, Volume I (the draft plan). Members of the public were invited to make submissions or

observations regarding the draft plan, in writing or electronically via the website, to the Planning

Authority between 20th May 2021 until Friday 30th July 2021.

6. On 28 July 2021, MKO Ireland, planning and environmental consultants made a submission

(the second submission) on the draft plan. This states on its face that it is made on behalf of the

first and third named applicants. It is a hefty 109-page document including appendices.

7. In October 2021, the CE of the respondent presented a report on the draft plan consultation

process. This summarised the submissions made. The report was 1,348 pages long, and

endeavoured to summarise a grand total of 2,877 submissions received.

8. During the months of December 2021 / January 2022, special meetings of the council were

convened to consider the content of the report of the CE dated October 2021. A critical material

amendment to which objection is taken was passed on 12th January 2022 in relation to Céibh

Sruthán changing the proposed zoning (from unzoned to open space).

9. During February and March 2022, the public consultation period on proposed material

alterations to the draft plan was held.

10. In February 2022, and thereafter, the applicants through their advisers MKO Ireland sought

a copy of the minutes in relation to the material amendments by contacting council officials, but

these were not available at that point. Indeed it is quite clear that the minutes, qua minutes, didn’t

exist at that point. Until approved by members at a subsequent council meeting, there are only

draft minutes. When approved and signed they become the minutes.

11. On 4th March 2022, MKO Ireland prepared a submission (the third submission) on the

proposed material alterations to the draft plan. This related purely to Sruthán Quay, the gist being

that the area should be zoned for tourism rather than open space.

12. In March 2022, the CE published a report on submissions received on the proposed material

alterations to the new plan. Thereafter, in April / May 2022, the elected members held special

meetings of council to consider the proposed material alterations to draft plan.

13. The new plan was adopted on 9th May 2022. Statutory notice of adoption of the new plan

was not published at that time.

14. On 3rd June 2022, the Office of the Planning Regulator made a submission on the plan to

the Minister of State for Housing, Local Government and Heritage (the Minister).

15. On 16th June 2022, the Minister issued a draft ministerial direction to the council, pursuant

to s. 31 of the 2000 Act.

16. On 17th June 2022, the council published notice of the making of the Galway County

development plan 2022-2028 in The Connacht Tribune.

17. On the same date, the applicants’ agent, MKO Ireland, notified Mr Ronan Barrett (a director

of the applicant companies) of the notification of the making of new plan and also the draft ministerial

direction.

18. Volume 2 of the new plan, together with appendices did not become publicly available or

accessible until a date in or around the end of July 2022.

19. On 29th June 2022, a letter was sent to the Minister on behalf of the applicants, containing

submissions on the s. 31 draft direction.

20. On 30th June 2022, Mr Barrett made a request to the council pursuant to the Freedom of

Information Acts, seeking copies of the minutes of all special meetings in 2022.

21. On 8th July 2022, the applicants (through MKO Ireland) made a submission to the Minister

concerning the draft direction issued to the respondent on the new plan.

22. On 13th July 2022, the respondent issued a response to the freedom of information (FOI)

request, refusing access to the documents requested, on the basis that the information sought was

already in the public domain, which wasn’t the case at that time other than by inspection in the

council’s offices.

23. On or about 3rd August 2022, the applicants accessed copies of the minutes of the special

meetings of the council which were obtained by the applicants’ advisers through the respondent’s

extranet, a non-public facing area of the respondent’s website but one that can be accessed without

infringing any security measure. We will return to this somewhat irregular situation.

Procedural history

24. On 5th August 2022, proceedings were issued, out of time. Eight weeks from the adoption

of the plan on 9th May 2022 would have been 4th July 2022. But in fact the council didn’t make an

issue of that, so it would appear that I can extend time without objection. In an adversarial system

I amn’t particularly motivated to interrogate the applicants’ alleged difficulties in instituting the

proceedings in time if the respondent isn’t doing so, so I will take their explanations at face value.

25. On 28th September 2022, the Minister of State at the Department of Housing, Local

Government and Heritage, in exercise of the powers conferred on the Minister by s. 31 of the 2000

Act and delegated to the Minister of State, and consequent to a recommendation made to him by

the Office of the Planning Regulator under s. 31AN(4) of the 2000 Act issued a direction to the

respondent on matters relating to the new plan.

26. On 12th December 2022, the matter was entered into the List and liberty was granted to

file an amended statement of grounds. The Minister was to be added as a notice party, although I

am not sure whether this was actually taken up. I don’t think the failure to do so in fact makes any

difference or causes the Minister prejudice, but the parties might be good enough to notify the

Minister of the outcome just in case.

27. On 30th January 2023, an amended statement of grounds was filed.

28. On 30th January 2023, leave was granted.

29. On 20th February 2023, the court was told that no costs protection had been agreed.

Directions were given for submissions on this.

30. On 6th March 2023, the court was informed that the applicant had decided not to press the

costs protection issue at this stage. Standard directions for papers were given running from that

date.

31. On 28th April 2023, opposition papers were filed on behalf of the respondent.

32. On 9th June 2023, a replying affidavit was filed on behalf of the applicants, who indicated

an intention to seek discovery.

33. On 19th June 2023, a further replying affidavit was filed.

34. On 2nd October 2023, the matter was sent to the List to Fix Dates with two weeks for a

discovery motion.

35. On 19th October 2023, a replying affidavit was filed on behalf of the respondent.

36. On 22nd January 2024, a further order was made giving liberty to issue a discovery motion.

37. On 26th February 2024, the issue of discovery was still outstanding and the council proposed

to file an affidavit stating that there were no further documents to disclose.

38. On 4th March 2024, the matter was sent to the next List to Fix Dates, the parties turning

down the offer of a date in September 2024 in the pilot project for Long Vacation sittings.

39. On 29th April 2024, a hearing date of the 22nd October 2024 was assigned.

40. On 24th September 2024, the applicants’ submissions were filed and served.

41. On 16th October 2024, the respondent's submissions were served.

42. On 21st October 2024, the elected members approved the defence of the proceedings for

the purposes of the Local Government Act 2001. I am informed that the applicants did write to the

members making their case and indeed seeking the opportunity to address the meeting (albeit that

this was declined). This illustrates the benefit, advantage and purpose of the procedure for express

authorisation by the members, because it gives an opportunity for members to consider the case as

to why the defence of proceedings should not be authorised (and consequentially, the opportunity

for an interested party to make such a pitch to the members). After that, one has done what one

can, and it is up to the members to decide whether to defend the plan as adopted or submit to

certiorari of any contested provision. In the event, if I may be permitted to borrow the demotic but

apt terminology of Kenny Rogers ("The Gambler", 1978) they decided to "hold 'em" rather than "fold

'em".

43. The statement of case contains the following comment:

“The matter is scheduled for hearing on 23 October 2024 (having previously been fixed for

three days at hearing, on 16 October 2024 the matter was curtailed to a single day

commencing at 09.30hrs).”

44. But that is a bit of a misunderstanding. First of all, statutory Practice Direction HC126

effected a general reduction of the standard case length for cases in the List from three days to two

to three days as determined by the court. What happened in this case was that the judge initially

planning to take this case over two to three court days had to deal with an injunctive matter listed

on Thursday October 24th. Consideration was then being given to various options as to how to

manage that including but not limited to having another judge hear this case to avoid any possible

overrun. The matter was intended to be called on 14th October 2024 to discuss that, but due to

oversight it was not listed. Counsel who had some knowledge of or involvement in (it doesn’t

particularly matter at this stage) the present matter and who was also briefed in the October 24th

matter contacted the registrar on 15th October 2024 to ask for confirmation that the same judge

would deal with both. In response to that I asked that the message be communicated that matters

should not be handed over as yet and that there would be further communication as to whether the

present matter was going on. Counsel replied giving the view that as there were only two parties

and only three core grounds it should finish within two days. In the end (and to some degree

influenced by the view of counsel that the matter could be relatively net) the preferred solution was

that the parties were invited to agree to a hearing over a single long calendar day with a time

estimate of 5.5 hours. In fact both parties agreed to that. The motivation for this was in part to

facilitate counsel (because I assumed that the counsel who had been in touch was going to be

appearing in the present matter – that would appear not have been an automatically correct

assumption but again that doesn’t particularly matter at this stage). The voluntary reduction was

effectively a relatively modest one from the suggested two court days (8 hours) to 5.5 hours, not

the involuntary 66% slashing of time from three to one days suggested by the statement of case.

Thus the language of “curtail[ment]” was overheated. Having discussed the matter with the parties

on the hearing date I did suggest possible flexibility additionally and to facilitate the parties I agreed

to sit for even longer hours (certainly not to be taken as a precedent). Ultimately no major objection

was articulated to the solution arrived at. But more generally (not specific to this case) one needs

to repeat the point that lengthy submissions are not to be equated with effective submissions – the

most effective thing is to major on one’s best points as efficiently and briefly as possible. The overall

time envelope is a subsidiary consideration and extra time normally doesn’t add a whole lot, if that

isn’t an unacceptably pragmatic view.

45. The matter was in the event heard within one calendar day on 23rd October 2024, when

judgment was reserved.

Relief sought

46. The reliefs sought in the amended statement of grounds are as follows:

“(i) An Order of certiorari, by way of judicial review, quashing the decision of Galway

County Council (the Respondent herein), made on 9 May 2022, to adopt the draft Galway

County Development Plan 2022 – 2028 (as amended by Material Alterations) (“the

decision”). An Order of certiorari, by way of judicial review, quashing the Galway County

Development Plan 2022 – 2028 as adopted by decision of Galway County Council (the

Respondent herein) on 9 May 2022, and which came into effect on 17 July, 2022 in so far

as it affects the lands which are owned and/or being developed by the Applicants and/or

each of them at Moycullen, Spiddal and/or Carraroe, County Galway, as more particularly

identified in the Affidavits already filed on behalf of the Applicants herein and, in particular,

in the submission by MKO to Galway County Council dated 28 July 2021.

(ii) Further, or in the alternative, an order pursuant to section 50A(9) of the Planning

and Development Act 2000 (as amended), declaring to be invalid or quashing the part or

parts of the decision which the court finds to be invalid, together with any consequential

amendments to the remainder of the decision or part thereof that the court may consider

appropriate.

A Declaration, by way of judicial review, that in making the aforesaid decision the

Respondent acted in breach of fair procedures and erred in law such that the decision was

ultra vires the powers of the Respondent and the decision is null and void and of no legal

effect;

(iii) A Declaration, by way of judicial review, that in making the aforesaid decision the

Respondent failed to adequately provide for effective public participation in the decision

making process contrary to its obligations pursuant to section 12 of the Planning and

Development Act 2000 (as amended), by reason of a failure to fully and fairly summarise

the detailed submissions of the Applicant in the Chief Executive’s Report dated October 2021,

and/or in the Chief Executive’s Report on Submissions received on the Material Alterations

to the New Plan (March 2022), in consequence whereof the aforesaid decision of the

Respondent is unlawful, ultra vires the powers of the Respondent, and is null and void;

(iv) A Declaration, by way of judicial review, that in failing to make available the minutes

of the Plenary and Special Meetings of the Council on various dates in 2021 and 2022, the

Council acted in breach of fair procedures and natural and constitutional justice and, in

consequence whereof, the decision of the Respondent is invalid, unlawful, ultra vires the

powers of the Respondent, and is null and void;

Further, or in the alternative, a Declaration that the Respondent acted in breach of its

obligations and/or the Applicants implied rights under article 28A of the Constitution of

Ireland, which provides that the State recognises the role of local government in providing

a forum for the democratic representation of local communities, in exercising and performing

at local level powers and functions conferred by law, which in the present context involve

the exercise and performance of the respondents statutory functions in relation to the

review, preparation and adoption of the statutory development plan, and the notification of

the development plan, pursuant to sections 9-12 of the 2000 Act.

Such declaration(s) of the legal rights and/or legal position of the Applicants and (if and

insofar as legally permissible and appropriate) persons similarly situated and/or of the legal

duties and/or legal position of the respondent as the court considers appropriate.

(v) Such declaration(s) of the legal rights and/or legal position of the Applicants and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the respondent as the court considers appropriate.

(vi) If necessary, an Order pursuant to section 50A(8) of the Planning and Development

Act 2000 (as amended), extending time for the purposes of making the within application

for judicial review.

(vii) If necessary, an Order providing for the discovery of documentation which is or has

been in the power, possession or procurement of the Respondent and which is relevant to

any issue in these proceedings;

(viii) Further and/or other Order or relief;

(ix) Liberty to apply;

(x) Liberty to file further Affidavits;

(xi) A Declaration that the special costs rules apply to the proceedings under Section

50B of the Planning and Development Act, 2000, as amended, and/or Sections 3 and 4 of

the Environment (Miscellaneous Provisions) Act, 2011, and/or pursuant to Order 99 in

accordance with the interpretative obligation arising under Article 9 of the Aarhus

Convention.”

Grounds of challenge

47. The core grounds of challenge are as follows:

“Core Ground No. 1 - The Chief Executive’s report (October 2021) on the Draft Plan

consultation process does not provide an adequate summary of the submissions made on

the applicants’ behalf as a consequence of which the Respondent has acted in breach of

Section 12 of Planning and Development Act 2000 (as amended) (‘the 2000 Act’), as

interpreted in accordance with fair procedures and constitutional justice. Further, or in the

alternative, the applicant has been deprived of fair procedures in the consideration and or

assessment by the Respondent of its proposed amendments to the Draft Plan.

Core Ground No. 2 - The Decision is invalid by reason of the failure of the elected members

to give reasons for their decision to oppose the recommendation of the Chief Executive in

his report dated March 2022 in relation to Material Amendment No. RSA LUZ Sruthán Quay

19.1, i.e. that the lands should not be zoned as per the said Material Amendment, and

instead to adopt the said Amendment. In consequence, the decision is contrary to the

requirements of fair procedure and natural justice, and is unreasonable and invalid.

Core ground No. 3 –The Decision is invalid by reason of the failure of the Respondent to

make available to the Applicants, over a prolonged period of time, the minutes and agendas

of special meetings of the Council. In consequence, the decision was made in breach of fair

procedures and/or in breach of natural and constitutional justice, in so far as the Applicants

were unlawfully denied access to an effective public consultation process during the course

of the statutory process leading up to the decision of 9 May 2022 to adopt the New Plan, as

a result of the matters referred to under the Particulars of Core Ground no.3, below. Further,

or in the alternative, the Respondent acted in breach of its obligations under article 28A of

the Constitution of Ireland which provides that the State recognises the role of local

government in providing a forum for the democratic representation of local communities, in

exercising and performing at local level powers and functions conferred by law, which in the

present context involve the exercise and performance of the respondents statutory functions

in relation to the review, preparation and adoption of the statutory development plan

pursuant to sections 9-12 of the 2000 Act.”

48. Certain grounds were withdrawn as follows:

“1. The Applicants do not propose to rely on the particulars at §9 and § 10 of the

Statement of Grounds.

2. In so far as Core Ground No. 1 (relating to Moycullen and Spiddal), this Ground will

only be pursued by the First and Third Named Applicants, being the Applicants on whose

behalf the relevant submission by MKO dated 28 July 2021 on the Draft Plan is stated to be

made in the said submission, and by the Second Named Applicant who is the owner of lands

at Moycullen.

3. In so far as Core Ground 2 is concerned (relating to Sruthán, Carraroe), this Ground

is not being pursued by the Second Named Defendant, who is not named in the MKO

submission dated 4 March 2022 and who has no interest in lands at Sruthán. Core Ground

2 is being pursued by all the other Applicants. (The said MKO submission was dated 4 March

2022 expressly states that the said submission is made on behalf of the First, Third and

Fourth Named Applicant. The Fifth named Applicant owns lands at Sruthán, Carraroe.)

4. For clarity, the relevant Applicants have not pleaded any reasons ground under Core

Ground 1 (relating to Moycullen and Spiddal) and are, therefore, not pursuing the argument

made at § 37 of their Legal Submissions.”

49. Insofar as points were made in submissions that fall outside the pleaded grounds it is not

appropriate to deal with these.

Summary table

50. Given that there are three sets of lands, five owners and three grounds it may be useful to

set out in tabular form which grounds apply to which sites:

Maigh Cuilinn An Spidéal An Ceathrú Rua

First & Second Third Applicant (Céibh an

Applicants tSrutháin)

Fourth & Fifth

Applicants

Core ground 1 – Lack of summary of Lack of summary of Not applicable

inadequate second submission, second submission,

summary in CE sub-grounds 2 to 10 sub-grounds 11 to

report 17

Core ground 2 – Not applicable Not applicable Lack of reasons –

lack of reasons sub-grounds 18 to

for material 24

amendments

Core ground 3 – Pleaded in general Pleaded in general Pleaded in general

lack of access to terms – but the time terms – but the terms

minutes for making time for making

submissions on submissions on

these lands had these lands had

passed prior to passed prior to

minutes being first minutes being first

sought in February sought in February

2022 2022

Domestic law issues

Core ground 1 – lack of adequate summary of submissions

51. Core ground 1 is:

“Core Ground No. 1 - The Chief Executive’s report (October 2021) on the Draft Plan

consultation process does not provide an adequate summary of the submissions made on

the applicants’ behalf as a consequence of which the Respondent has acted in breach of

Section 12 of Planning and Development Act 2000 (as amended) (‘the 2000 Act’), as

interpreted in accordance with fair procedures and constitutional justice. Further, or in the

alternative, the applicant has been deprived of fair procedures in the consideration and or

assessment by the Respondent of its proposed amendments to the Draft Plan.”

52. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 1 – Moycullen

Applicants’ position:

6. The Chief Executive failed to summarise adequately or at all the expert submission

dated 28 July 2021 made by MKO, Planning and Environmental Consultants, on the draft

Development Plan in support of the First and Third named Applicants’ proposal that the lands

owned by BBT and CBT at Maigh Cuilinn be rezoned for residential purposes (R1).

7. The MKO submission included a justification test which addressed, inter alia, the lack

of any development on a number of other sites which were zoned for residential development

in the previous development plan and the planning constraints on the development of such

sites. The obligation under s. 12(4)(b) of the 2000 Act is to summarise the submissions,

consider them and provide a response. There is no obligation on the elected members to

consider the individual submissions made by members of the public or even public

authorities generally.

8. The Applicants further plead under Core Ground 1 that the Council (a) failed in its

obligation to consider the zoning of the lands in Moycullen for residential purposes on a de

novo basis; (b) that the Council failed to ‘have regard to’ or apply the sequential approach;

and (c) that the Council failed to apply a tiered approach to zoning, in accordance with the

policy objectives of the National Planning Framework (NPF) in that regard.

9. In demonstrating that the Chief Executive did not engage with or provide any

reasonable or fair summary of the MKO submissions of 28 July 2021 (and in particular,

Appendix 3 thereof) in accordance with the requirements of s. 12(4)(b) the Applicants have

established that the Council did not take a de novo approach, and by extension, did not

apply either the sequential or tiered approaches to zoning. At the very least, this should

have the effect of shifting the onus initially resting on the Applicants on to the Council itself

to prove that the Applicants are in breach of their statutory obligations to have regard to the

Development Plan Guidelines and/or the NPF in this context.

Respondent’s position:

10. The impugned decision is valid and was lawfully made, and complies with the

statutory requirements of the 2000 Act. The Applicant’s Statement of Grounds amounts to

an attempt to engage in a merit- based review to adopt the Galway County Development

Plan and/or a collateral attack on the Strategic Flood Risk Assessment undertaken.

11. A Submission was only made on behalf of the First and Third Named Applicants in

July of 2021 (‘the MKO Submission’), being the only submission of which the Applicants seek

to complain about the summary of same and of those Applicants only the First Named

Applicant is asserted by the Applicant to own any (and undefined) land in Moycullen. No

submission whatsoever was made by or on behalf of the Second Named Applicant who it is

contended can make no complaint whatsoever of how the MKO submission was summarised.

The Chief Executive’s Report provided a proper and adequate summary of the submissions

made on behalf of the First Named Applicant (the MKO submission also being made on behalf

of the Third Named Applicant but it not owning any land in Moycullen).

12. The Respondent denies that there was any breach of fair procedures and/or

constitutional justice and denies that elected members did not have adequate regard to the

submissions made on the Applicant’s behalf and the summary of same by the Chief

Executive. The Respondent points to the length of the submissions being summarised in the

Chief Executive’s Report , categorises the issues raised as ‘micro-issues’ and maintains that

they must be viewed in the context of the volume of such issues raised in the 2,877

submissions received on the Draft CDP.

Core Ground 1 – An Spidéal/Spiddal

Applicants’ Position:

13. The Chief Executive’s report (October 2021) on the Draft Plan consultation process

does not provide an adequate summary of the submissions made on the Applicants’ behalf

by MKO, planning and environmental consultants, dated 28 July 2021, in breach of Section

12 of the 2000 Act resulting in an inadequate assessment of same by the Chief Executive

and the elected members. The Applicant’s position is that the Chief Executive’s summary of

the Applicant’s submissions is incomplete and fails to take into consideration the substance

of the site-specific analysis in the Applicants’ submission.

14. Further, it does not fully, fairly or accurately summarise the nature of the

submission; it failed to record, less still consider, the nature of the technical solution to the

risk of flooding on the lands; ignored that both the Council’s own Senior Engineer had

approved flood risk mitigation works at the same site, under the same conditions, and

supported the grant of permission for development on the site and also that An Bord Pleanála

has similarly considered the flood risk and was satisfied to grant planning permission.

Respondent’s position:

15. The impugned decision is valid and was lawfully made, and complies with the

statutory requirements of the 2000 Act. The Applicant’s Statement of Grounds amounts to

an attempt to engage in a merit- based review to adopt the Galway County Development

Plan and/or a collateral attack on the Strategic Flood Risk Assessment undertaken. The

arguments advanced by the Third Named Applicant, that flood protection measures

previously proposed as part of a planning application (which had not been granted as of the

relevant time) should have been considered or taken as given in the zoning of the lands in

question, are entirely misplaced and the Council was in fact obliged to disregard same, even

if constructed, in considering the zoning of the lands in accordance with the Planning System

and Flood Risk Management Guidelines for planning authorities.

16. The Chief Executive’s Report provided a proper and adequate summary of the

submissions made on behalf of the Third Named Applicant.

17. There was no breach of fair procedures and/or constitutional justice and denies that

elected members did not have adequate regard to the submissions made on the Third Named

Applicant’s behalf. The summary dealt with the issues raised on behalf of the Third Named

Applicant and the Respondent points to the length of the submissions being summarised in

the Chief Executive’s Report , categorises the issues raised as “micro-issues” and maintains

that they must be viewed in the context of the volume of such issues raised in the 2,877

submissions received on the Draft CDP.”

53. Section 12(4) of the 2000 Act provides:

“(4) (a) Not later than 22 weeks after giving notice under subsection (1) and, if appropriate,

subsection (3), the chief executive of a planning authority shall prepare a report on any

submissions or observations received under subsection (2) or (3) and submit the report to

the members of the authority for their consideration.

(aa) A chief executive’s report prepared for the purposes of paragraph (a) shall be published

on the website of the planning authority concerned as soon as practicable following

submission to the members of the authority under paragraph (a).

(b) A report under paragraph (a) shall—

(i) list the persons or bodies who made submissions or observations under this

section,

(ii) provide a summary of—

(I) the recommendations, submissions and observations made by the

Minister, where the notice under paragraph (a) of subsection (2) was sent

before the establishment of the Office of the Planning Regulator,

(II) the recommendations, submissions and observations made by the Office

of the Planning Regulator, and

(III) the submissions and observations made by any other persons,

in relation to the draft development plan in accordance with this section,

(iii) give the response of the chief executive to the issues raised, taking account of

any directions of the members of the authority or the committee under section

11(4), 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

of the Government or of any Minister of the Government and, if appropriate, any

observations made by the Minister for Arts, Heritage, Gaeltacht and the Islands

under subsection (3)(b)(iv).”

54. What can be noted here is that s. 12(4) does not compel the CE to summarise submissions

individually. It requires a summarisation of the submissions generally, which can be done by group,

by theme, by geographical area, or any other appropriate way. It doesn’t require point-by-point

refutation or hand-to-hand combat with each correspondent. It is not up to a judicial review

applicant to dictate the form of a decision.

55. The first and third applicants’ submissions are in fact summarised in several places and given

relatively generous treatment by the CE. There are six elements of the submission that are

summarised in the CE report, in relation to four of which the applicants make no complaint.

56. At p. 350 the CE summarises part of the submission as follows (there is no pleaded complaint

about this):

GLW-C10-608 Baile Bhruachláin A detailed submission Chief Executive’s

Teoranta & has been made. Response:

Baile Éamoinn Regarding Chapter 5 The Council is

Teoranta Economic supportive of a

Development, multitude of uses in

Enterprise and Retail the town and village

Development it is centres across the

proposed that the County.

Draft County Alternative and newer

Development Plan uses such as working

should recognise the hubs are generally

need to adapt to the supported in

move to online appropriate locations.

retailing, the change Chapter 10 Natural

in shopping practices Heritage, Biodiversity

and the need to and Green/Blue

convert disused retail Infrastructure of the

premises to Draft Plan contains a

alternative uses. series of supporting

‘Service hubs’ should cultural heritage

provide essential related Policy

retail facilities to their Objectives. There are

immediate hinterland. also retail related

Galway County supporting Policy

Council should Objectives in the

promote the delivery Draft Plan.

of ‘Essential Retail’ Chief Executive’s

and ‘Essential Recommendation:

Healthcare’ facilities No Change.

within key gateway

villages within the

South Connemara

region.

Specific

considerations are

outlined for a number

of towns and villages.

The submission notes

that the emerging

plan offers the

Planning Authority an

opportunity to ensure

that the appropriate

measures are in place

to protect and

promote the

important cultural

heritage of Galway.

57. The second summary (p. 419) is as follows – there is no complaint about this:

GLW-C10-608 Baile Bhruachláin This comprehensive Chief Executive’s

Teoranta & Baile submission Response:

Éamoinn Teoranta recommends that The Planning

tourism needs to be Authority welcomes

more at the forefront the support for the

of this Draft policy objectives for

Development Plan. It Tourism within the

is noted that tourism Draft Plan. The

is vital throughout the Planning Authority are

Connemara Region for satisfied that the

the local community Policy Objectives as

and economy. This proposed create

submission welcomes conditions to ensure

the policies on the tourism economy

Tourism in the Draft can continue to

Plan however it develop and grow

requests that they are over the life of the

further developed. Plan.

It is requested that The Planning

DM Standard 44, Authority would like

Tourism to reference Policy

Infrastructure and Objective GCTS 1

Holiday Orientated Galway County

Developments, is Tourism Strategy

amended to state: within Chapter 8

- ‘The Council Tourism and

recognises that there Landscape. The plan

is an untapped will support the

tourism potential in preparation and

County Galway, implementation of

particularly in the this strategy which

Connemara Region, will support the

which can be realised existing tourism

in different ways sector whilst also

through the ensuring the county is

development of new maximising its

tourism infrastructure tourism potential.

facilities to enhance The Planning

the tourism offerings Authority note the

of the region. Where amended text as

the provision of such suggested to DM

facilities complies with Standard 44. The

the other amended text as

requirements of the suggested is not

County Development considered to be

Plan as set out and significantly different

the requirements of from the text as

proper planning and proposed in the Draft

sustainable Plan. The text which

development, the makes specific

Council will consider reference to the

the provision of same Connemara region is

subject to the noted however, the

submission of the Planning Authority

following: consider that the

- Comprehensive County as a whole

justification of need should be treated

for the facility equally with regard to

- Overall master plan this DM Standard, and

of the facility as such the wording

- Documentary as proposed in the

evidence of Draft Plan is

compliance with the considered

other requirements of appropriate in this

the Development instance.

Plan.’ The requested

It is requested under addition of the word

15.7.1 Tourism ‘also’ in the first line

Related Documents under DM Standard

under a) Tourism 44 is not considered

Infrastructure necessary.

Development that the The Planning

first line reads as Authority are satisfied

follows: that the Policy

- ‘The Council also Objectives including

recognises…’ CTB 1 – 5 as

It is proposed that proposed are

Policies CTB 1-5 and appropriate with

Policies SGV9 in respect to the County

Volume 1 are Tourism Brands. The

elaborated upon. wording within SGV 9

It is proposed that the Tourism, which

Development Plan relates to tourism in

should align more the small growth

with the Fáilte Ireland villages, is also

Connemara Coast and considered

Aran Islands appropriate in this

Development Plan for instance.

the provision of new The Draft Galway

projects and facilities. County Development

It is recommended Plan 2022-2028

that the Development supports the

Plan should Connemara Coast and

acknowledge potential Aran Islands Visitor

opportunities that can Experience

bring tourism life in Development Plan

Connemara, such as (2017) within Section

the Celtic 8.7.

Camino/Camino The Council have

Connemara, new consulted with Failte

greenways, blueways Ireland and there

and cycle links have been no

between key towns concerns raised in

and villages, South terms of the

Connemara as an alignment of the Draft

Adventure Tourism Plan with this tourism

destination, new document.

Heritage Piers, The development plan

Geoparks and the has not listed every

designation of potential tourism

Designated Bathing development in the

Waters. county but has

It is submitted that included a suite of

more needs to be policy objectives that

done to develop would support such

parking and waste projects as those

management facilities listed in this

at beaches in South submission for

Connemara to Connemara, and

increase their indeed elsewhere

potential as local throughout County

tourism assets. Galway.

The Planning

Authority

acknowledge the

development of

parking and waste

management facilities

at beaches. The

enhancement of such

facilities would be

supported within the

provision of the Draft

Plan as proposed.

Chief Executive’s

Recommendation:

No Change.

58. The third summary (p. 570) is as follows – there is no complaint about this:

GLW-C10-608 Baile Bhruachláin Density and Building Chief Executive’s

Teoranta & Baile Heights - DM Response:

Éamoinn Teoranta Standard 2: An undertaking has

The submission been given to comply

requests that the with the Section 28

Planning Authority guidelines as Part of

prepare density the MASP chapter in

standards in Volume 2 of the Draft

accordance with County Development

Chapters 5 and 6 of Plan.

the Section 28 DM Standard 30

Ministerial Guidelines relates to setback

for Sustainable with respect to

Residential Building lines. Within

Development in Urban urban areas there

Areas (2009). It is may be some

stated that the flexibility with respect

appropriate densities to setback and this is

which are likely to covered as part of the

apply to new DM standards with

residential respect to Chapter 3

development in Placemaking,

villages is not clearly Regeneration and

indicated. Urban Living.

Building Lines – DM As per OPR

Standard 30: Recommendation No.

It is recommended 8.

that, where It is not considered

justification is appropriate to have a

provided, flexibility standard buffer zone

should be applied to of 100m to all

DM Standard 30. The wastewater treatment

submission requests a plants, as one size fits

statement regarding all standards cannot

flexibility be included apply as different

in this section to treatment plants will

ensure development require different

is not hindered where setbacks depending

it may not be able to on a number of

conform with the factors. Such a policy

requirements of the would be overly

standard. prescriptive and may

Parking – DM lead to an

Standard 32: impediment to

The submission permitting

requests clarity on appropriate

whether the car development. Irish

parking standards water, as the

outlined are a governing body on

minimum or municipal WWTP,

maximum standard. have indicated that

In relation to Table there is no

15.5, the submission justification for such a

considers the setback in the

standard of 1 car majority of situations

parking space per and that all

3m2 to be excessive applications will be

and should be dealt with on a case

adjusted. by case basis whilst

The submission would always ensuring that

welcome the inclusion public health is

of DM Standard 32 (i) paramount.

relating to the visual Chief Executive’s

impact of car parking, Recommendation:

requiring parking to As per

be placed behind Recommendation No.

buildings where 8.

possible and the use

of screening and

planting to soften car

parking.

Buffer Zone Standard

– Wastewater

Treatment Plants

It is requested that a

buffer zone standard

of 100m setback

buffer zone for

development in

proximity to Waste

Water Treatment

Plants is set as the

standard for the

entire County. The

submission requests

that uniform

standards and policies

are applied

throughout the

County to avoid

ambiguity and to

provide clear and

concise guidance on

buffer zone standards

and on the

appropriate

maintenance regime

and standards that

should apply to

private and communal

WWTP’s.

59. The fourth summary (p. 774) is as follows:

GLW-C10-608 Baile Bhruachláin A comprehensive Chief Executive’s

Teoranta & Baile submission has been Response:

Éamoinn Teoranta received which relates The subject lands are

to the whole zoned Agriculture. It

Conamara Region. In is not considered

relation to the town of appropriate to zone

Maigh Cuilinn, the the lands Residential

submission seeks to Phase 1. In relation

rezone a parcel of to Residential Phase 1

land located to the there is a quantum of

west of the N59 from lands that are

Agricultural to required as outlined in

Residential Phase 1. Chapter 2 Core

A justification for this Strategy, Settlement

rezoning is provided. Hierarchy and

The locational Housing Strategy. In

advantages including accordance with table

scenic beauty and 2.9 there is a

access to future green requirement of

and blue 8.75ha of Residential

infrastructure/tourism Phase 1 lands.

are also referenced as As per the Draft Plan

part of the this quantum of lands

submission. The has been identified

wider needs of the and therefore it is

Conamara Region considered that the

such as improved request to zone

infrastructure are also additional Residential

set out within the Phase 1 is not

submission. The appropriate in this

submission calls for instance.

improved public realm In addition, Chapter

and facilities in Maigh 11 Community

Cuilinn including the Development and

addition of a new Social Infrastructure

Secondary School and supports the provision

an enlarged Primary of educational and

School, bypass, community facilities

sports facilities and and there are also

other infrastructural policy objectives

improvements within the Maigh

Promote Maigh Cuilinn Cuilinn plan that

as a market town that supports the delivery

acts as a service hub. of educational and

community facilities.

Chief Executive’s

Recommendation

No Change.

60. The fifth summary (p. 805) is as follows:

GLW-C10-608 Baile Bhruachláin This submission Chief Executive’s

TEO relates to lands that Response:

are outside the Draft The subject lands are

Plan boundary. removed from the

It is requested that plan boundary and it

these lands would be is considered that

zoned a use similar to there is no

Tourism due to the justification to include

significant potential these lands. There is

within this area for no connectivity from

heritage and tourism the plan boundary to

assets. Reference these lands.

has been made to There is an extant

applications for planning application

heritage signage 21/225 to erect and

relating to An Sruthán install signage for

Pier and the Marine tourist information

and Cultural Heritage and orientation at An

Centre on the subject Sruthán pier as a site

lands. The subject of maritime cultural

lands are currently heritage significance.

being used for boat The principle of a

storage. It is tourism asset at this

considered that the location has been

Draft Plan in relation acceptable based on

to the promotion of the planning

tourism and realising application under

the untapped 21/225 for signage

potential of tourism etc. It is considered

across the region that the zoning of

does not go far these lands would not

enough to align be in accordance with

accordingly with the the proper

RSES and the Failte planning and

Ireland Masterplan. development of the

area.

Chief Executive’s

Recommendation:

No Change.

61. The sixth summary (p. 806) is as follows (there is no objection to this summary):

GLW-C10-608 Baile Bhruachláin Teo The subject lands are Chief Executive’s

located on the eastern Response:

edge of An Spidéal The SFRA undertaken

village. at Plan level provides

The lands measures an appropriately

2.6ha. It is stated strategic assessment

that these lands have of flood risk within the

been subject to village of An Spidéal

previous planning in compliance with

applications and are the ‘Planning System

currently subject to a and Flood Risk

mix of zonings in the Management –

development plan Guidelines for

subject to Variation Planning Authorities

No.2 b. It is 2009’. It considers,

confirmed that these among other things,

zonings (Open available, published

Space/Recreation and information on flood

Amenity, Village risk. In order to

Centre, Community inform the Stage 2

Facilities and assessment, the

Residential Phase 2) village was inspected

have been carried on foot by

through into the Draft experienced

Development Plan professionals (lands

2022-2028. Three were visited in

specific points have November

been raised in relation 2020/December

to these lands: 2020) to examine,

-Flood Risk Mitigation inter alia, the

-Rezoning of the potential source and

subject lands to aid direction of flood

the creation of a paths from fluvial and

tourism hub coastal sources,

-Community gain locations of

benefit of the topographic and built

redevelopment of the features.

site. The undertaking of

It is acknowledged the SFRA and the

that the lands zoned application of the

to the south of the Constrained Land Use

site is zoned open Zoning is an

space are covered by appropriate approach

a flood risk zone, in meeting the

however it is stated requirements of the

that there is an Guidelines and

engineering solution protecting human life,

to deal with flood risk. property, and other

Flood Risk receptors from the

effects of flood

Assessment has been events. It is

submitted. therefore considered

It is requested that inappropriate to zone

the following rezoning these lands Village

would occur: Centre.

• Open The request to zone

Space/Recreation and the lands as a Tourist

Amenity lands would Hub , the use

be re-zoned Village associated with

Centre tourism can be

• Residential Phase 2 accommodated

lands to be rezoned subject to compliance

Residential Phase 1 with the Land Use

Matrix on Village

Lands.

In relation to the

request for additional

Residential Phase 1

lands there is a

requirement of 2 ha

of Residential Phase 1

lands. The quantum

of Phase 1 lands in An

Spidéal is in full

compliance with the

Core Strategy as

outlined in Chapter 2

Core Strategy,

Settlement Hierarchy

and Housing Strategy.

It is considered that

the subject lands

zoned Residential

Phase 2 is appropriate

in this instance.

Chief Executive’s

Recommendation:

No Change.

62. This is not some sort of casual or back-of-an-envelope pro forma sentence or two. The

applicants’ points are considered in some detail and taken seriously – indeed in many instances the

word count for the applicants’ position exceeds that for the CE response.

63. By definition a summary leaves a lot out – where a 100+ page document is being

summarised in a few hundred words that involves omitting a massive amount. The process has to

be workable. The CE has to have a lot of latitude in summarising under such circumstances, if the

report isn’t to be impossibly long. Anyway a dissatisfied party will always be able to complain about

something been left out. The CE here didn’t exceed the wide margin of discretion that must be

inherently involved.

64. As the council correctly submits (para. 27 of submissions, relating to Maigh Cuilinn):

“the summary identifies the fundamental thrust of the submission – that the portion of the

land identified in Moycullen which was owned by the First Named Applicant should be zoned

residential instead of agricultural and that a justification supporting that submission had

been supplied”.

65. It is not an obligation of s. 12(4) to set out the analysis of the entity making the submission

as to why they are looking for what they are looking for. The core point is included – rezoning to

residential. The rest is detail.

66. Likewise in relation to the An Spidéal village site, the CE specifically said (pp. 806-807) that

“it is stated that there is an engineering solution to deal with flood risk”. This acknowledges a central

point made by the applicants. Micro-detail isn’t necessary.

67. The problem with the applicants’ position is that it is always possible to comb through a

submission, of whatever length, and find micro-sub-points that are not addressed. Therefore every

summary is vulnerable to this sort of analysis, in exactly the same way that every decision is

vulnerable to some sub-point advanced by an applicant not being dealt with by way of reasons. If

certiorari is there for the asking on the basis of omissions of this kind, then the business of central

or local government or the administrative state generally simply can’t be operated to such a

standard.

68. That conclusion is doubly valid where the context is that the CE divided the applicants’

submissions by theme and area, and set them out in six separate sections in the report. The volume

of material speaks for itself, as does the fact that four of the six summaries are not objected to in

the pleadings. Such a context demonstrates that reasonable efforts were made by the CE in

representing the applicants’ concerns.

69. Even if I am wrong on all that, and even if, counter-factually, there was a legal breach, there

are two reasons why certiorari isn’t appropriate.

70. Firstly, the members were not wholly dependent on the summary. They also had access to

the full submissions. The objection was launched in oral submissions on the implausible basis that

the members were “hamstrung”, “hoodwinked” and “blindfolded” by the lack of detail in the CE’s

summary. That is an exaggeration and views the whole thing as an academic exercise rather than

by asking how the problem could have been dealt with in practice at the time. The answer to that

is – quite easily. The members in such a situation have access to the submissions themselves, so

any member motivated to take an interest in any given issue can and presumptively does go to the

detail of the submission itself rather than give up if the summary is insufficiently extensive. The

summary is a help but doesn’t stop anyone looking into anything if they want to or indeed if their

attention is drawn to the issue otherwise than by mere reliance on the summary.

71. In fact the council did a lot more than simply make the submissions available. As pleaded

at para. 18 of the statement of opposition:

“18. The Council had regard to flooding issues in Spiddal and undertook a Strategic Flood

Risk Assessment ( ‘SFRA’) in respect of same and the submissions, including the submissions

on behalf of the Applicants were made available to the Councillors both on the Council’s

website (www.consult.ie). In fact, as can be seen from the Minutes of the 21st April 2022

the Director of Services, Mr. Michael Owens, issued a reminder to all the Councillors that all

the submissions could be viewed on www.consult.ie. The Councillors were informed of and

aware of the submissions and they were further discussed including at ten separate

workshops with the Councillors held between the 9th and 26th November, 2021 prior to the

consideration of the Chief Executive’s Report on Submissions received with respect to the

draft Development Plan and, in particular, at a workshop held with Councillors on Thursday

the 11th day of November, 2021 where Chapter 2 Volume 2, of which an Spidéal/Spiddal

forms part, was considered.”

72. That is verified on affidavit on behalf of the council (Mr Brendan Dunne, senior executive

planner, para. 2), so if the applicants wanted to challenge that they would have had to do something.

They didn’t do anything, other than make submissions, but as the council correctly says at para. 76

of their written legal submissions:

“The Applicants cannot impugn by way of legal submission the contents of a Workshop they

have not troubled themselves to interrogate by way of the procedures available to them.”

73. The second problem for the applicants, even if there is a legal breach, is that a judicial review

applicant can’t slump into complete passivity at the relevant time and then slink along later to claim

relief from the court: T.T. (Zimbabwe) v. The Refugee Appeals Tribunal [2017] IEHC 750, [2017] 10

JIC 3105 (Unreported, High Court, 31st October 2017); McMonagail v. Ireland and Ors. [2023] IEHC

223, [2023] 4 JIC 2809 (Unreported, High Court, Ferriter J., 28th April 2023), in particular paras.

109 to 114 which discuss an applicant’s failure to marshal relevant evidence; Hughes v. Dublin City

Council [2024] IEHC 344, [2024] 6 JIC 1202 (Unreported, High Court, 12th June 2024). If the

applicants had any real and genuine grievance about the summaries in October 2021 they could

have done a lot about it at the time. The sensible, obvious and normal thing to have done would be

to write to the members drawing their specific attention to the issue and setting out their position

in more detail. That would have cost nothing by email or a few postage stamps by hard copy. The

applicants didn’t do that – they did nothing.

74. In such matters, the law helps those who help themselves. Benjamin Franklin made the

same point about the gods, as did Euripides in Ἰφιγένεια ἐν Ταύροις (Iphigenia in Tauris) (414-412

BCE) line 913 (at least in the poetic translation by Prof Gilbert Murray, Regius Professor of Greek,

University of Oxford) (https://www.gutenberg.org/cache/epub/5063/pg5063-images.html):

“σθένειν τὸ θεῖον μᾶλλον εἰκότως ἔχει

(he who strives

Will find his gods strive for him equally).”

75. Whether one regards the foregoing as creating an inference that there was no real grievance

with the summary at the time, or as indicating that any error was harmless, or that the applicants

had other remedies such as drawing attention to the full submissions, or as being a basis for the

exercise of discretion against certiorari at this stage, it all comes to the same thing.

76. The applicants suggest that corresponding on the issue would have been “ad hoc” and non-

statutory and would have involved taking into account an “invalid” CE report. This is a classic

applicants’ fallacy summarised in the concept of the Metaphysics of Invalidity – the idea that

“invalidity” is an all-or-nothing idea and that once there is one false move, everything else after that

must be cancelled and treated as a legal nothing. But that isn’t the way an ordered society or an

ordered legal system can function. Whether something is valid or invalid isn’t an absolute – one has

to look at issues such as whether it is duly challenged, whether there were other remedies, whether

the problem was rectified or was capable of rectification, whether there was any real issue or

objection at the time, and whether ultimately any discretion should be exercised in favour of relief.

Judicial review is, ultimately, a branch of equity, even bearing in mind that in some cases relief is

nearly automatic. This isn’t such a case.

77. The applicants make the valid point that the time to challenge an intermediate decision is at

the stage of the final decision. That is not in doubt. The issue is not the lack of a judicial review

challenge in 2021 but the lack of any attempt at rectification of the problem in 2021, whether by

correspondence or otherwise. One doesn’t have to protest in every case but only where such protest

would have a substantial prospect of achieving a remedy. Here that was absolutely the case – at

the zero cost of an email, the applicants could have informed members of any missing detail of their

submission. They didn’t do that. So this isn’t a serious ground on which certiorari could be granted,

even if there had been a legal breach, which there wasn’t.

Core ground 2 – lack of reasons

78. Core ground 2 is:

“Core Ground No. 2 - The Decision is invalid by reason of the failure of the elected members

to give reasons for their decision to oppose the recommendation of the Chief Executive in

his report dated March 2022 in relation to Material Amendment No. RSA LUZ Sruthán Quay

19.1, i.e. that the lands should not be zoned as per the said Material Amendment, and

instead to adopt the said Amendment. In consequence, the decision is contrary to the

requirements of fair procedure and natural justice, and is unreasonable and invalid.”

79. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 2 – An Sruthán/Carraroe

Applicants’ Position:

18. The impugned decision to is invalid by reason of the failure of the elected members

to give reasons for their decision to oppose the recommendation of the Chief Executive in

his report dated March 2022 in relation to Material Amendment No. RSA LUZ Sruthán Quay

19.1.

19. The Fourth and Fifth Applicants are the owners of lands in the vicinity of An Ceathrú

Rua / Carraroe, and in particular, a landholding immediately west of Sruthàn [sic] Quay. In

the Applicants’ submission made on 28 July 2021 on the draft Development Plan, the

Applicants proposed that the landholding behind Sruthàn Quay should be rezoned to ‘T’ –

Tourism. The rationale for this proposal is set out at pages 15 – 17 of the Applicants’

submission dated 28 July 2021 (PDF pp.545, 546).

20. In the report of the Chief Executive of October 2021, at page 805 (PDF p.1458), the

Applicants’ submission is fairly summarised and the Chief Executive recommended no

change to the zoning.

21. By resolution in December 2021 / January 2022, and without notice to the

Applicants, the elected members proposed the change of land use zoning of the Applicants’

lands to ‘Open Space, Recreation and Amenity’. This was opposed by the Chief Executive

who recommended, following further consideration, no alteration (Amendment No. RSA LUZ

Sruthán Quay 19.1).

22. However, in breach of their Christian/Killegland obligation, the elected members

rejected the Chief Executive’s recommendation without giving any reasons for such

rejection. In such circumstances, the Applicants’ position is that the decision was made

contrary to fair procedures and natural justice, and in breach of the obligation to give reasons

and, as a consequence, is unlawful, invalid and of no legal effect.

23. The Council contends that there is no obligation under PDA 2000, s. 12 to provide

reasons for not agreeing with the Chief Executive’s recommendation (SOO, §35). However,

this ignores the fact that in Christian the obligation to give reasons in these circumstances

was implied notwithstanding the absence of express statutory provision.

Respondent’s position:

24. No submission was made by or on behalf of any Applicant with any interest in the

lands at Sruthán Quay and the MKO submission of July 2021 was not made on behalf of any

such party and thus no complaint can be maintained as to how the MKO submission of July,

2021, in so far as it related to lands at Sruthán Quay/Carraroe was summarised by any party

with a sufficient interest in same. The Applicants do not have sufficient locus standi to make

any point in relation to lack of reasoning of the elected members as they were opposed to

the Chief Executive’s recommendation in any event and were themselves advancing a

different amendment.

25. There is no obligation under Section 12 of the Planning and Development Act, 2000

to provide reasons for not agreeing with the Chief Executive’s recommendation in the

circumstances of the present case and in particular where the members had already resolved

to change the zoning of the lands in question (which decision of December 2021 / January

2022 predated the report of the Chief Executive of March 2022 upon which the Fourth and/or

Fifth Named Respondents seek to rely. The recommendation by the Chief Executive that

the lands should remain unzoned amounted to a proposed reversal of the status quo ante

namely the decision which had already been made by the elected members, i.e. to zone the

lands for open space in the draft Development Plan. Further, the Applicants were on notice

of the relevant amendment, were invited to make a submission and did in fact do so and

sought a different outcome from that suggested by the Chief Executive.”

80. In the draft plan the land was unzoned. At the material amendment stage, a motion

(material alteration RSA LUZ Sruthán Quay 19.1) was passed to zone the land as OS – open space.

81. The minutes of the meeting of 12th January 2022 set out a planning justification for the

material amendment. The amendment was effected by motion moved by Councillor Ó Cualáin by

way of motion to the effect that the relevant lands should:

“…be zoned ‘Recreation and Amenity Area’ and to have it designated as a public amenity

for leisure, tourism and for community enjoyment. It is noted that Céibh an tSrutháin is of

high scenic amenity and a historic site”.

82. That motion, which was passed, sets out a sufficient reason in the circumstances, especially

bearing in mind that the CE wasn’t suggesting any alternative specific zoning. The “disagreement”

was whether to leave the land unzoned or to give it an open space zoning. The planning rationale

provides an acceptable reason as to why OS zoning was appropriate.

83. A submission was made by the first, third and fourth applicants in relation to the material

amendment (ref. GLW-C20-213). The submission sought instead a zoning of T – tourism.

84. The CE’s report (inadvertently omitting reference to the fourth applicant) states that the

submission was made by the first and third applicants. It concluded:

“The subject lands were not zoned in the Draft Galway County Development Plan 2022-

2028. These lands are removed from the settlement boundary of An Cheathrú Rua. During

the course of the Council Meeting in December /January 2022, the Elected Members by

resolution zoned these lands Open Space, Recreation & Amenity. The Chief Executive

considers that there is no justification for the zoning of these lands as they are remote and

isolated from the village centre. It is considered that these lands should not be zoned as

per Material Alteration RSA LUZ Sruthán Quay 19.1.”

85. This then came back to the members on 5th May 2022. The members ultimately decided to

adopt the CDP with the relevant material amendment at that council meeting, so they affirmed their

original decision and by necessary implication its reasoning.

86. The minutes of the meeting of the 9th of May 2022 record that item 1 of the agenda was to

“consider the Chief Executive’s Report on the Submissions received on Material Alterations to the

Draft Galway County Development Plan 2022-2028 under Part 11, Section 12(5) and (6) of the

Planning and Development 2000”. A number of other ancillary motions were adopted and then the

development plan was adopted in the following terms:

“Having considered the Plan, the Proposed Material Alterations, the CE Reports on

submissions received (including that on the proposed material alterations) and ...

• The Strategic Environmental Assessment (SEA) Environmental Report for the Draft

Plan

• The Appropriate Assessment (AA) Natura Impact Report for the Draft Plan

• The Strategic Flood Risk Assessment (SFRA) for the Draft Plan

• The SEA Environmental Report for the Proposed Material Alterations

• The Natura Impact Report for the Proposed Material Alterations

• Written submissions relating to SEA, AA and SFRA made during the Plan preparation

process

• Ongoing advice on SEA, AA and SFRA from the Council’s agents

• The final, consolidated Natura Impact Report

• The final AA Determination

In accordance with the provisions of Section 12(10) of the Planning and Development Act

2000 (as amended), the members agree, by resolution, to make the Plan, as recommended

by the Chief Executive and as further modified by way of motions and resolutions at the

Special Council Meeting on 20th and 22nd April 2022 and 4th , 5th and 9th May 2022 and

to proceed in accordance with Section 12(12) of the Planning and Development Act 2000

(as amended) to publish notice of the making of the Plan. …”

87. This was passed 36-0. There was nothing further to displace the valid reasons already given.

The complaint of lack of reasons made in this ground is without substance.

88. In Killegland Estates Ltd v. Meath County Council [2023] IESC 39, [2023] 12 JIC 2109

(Unreported, Supreme Court, 21st December 2023), Hogan J. noted at para. 66 that in the trial

decision in that case I considered that it would be best practice to note the rationale for going against

the CE in the minutes – and that was in fact done precisely in that way in the present case (in the

minutes of 12th January 2022). Hogan J. went on to say at para. 67 that “the reasons for such a

decision should be properly evidenced and justified. Accordingly, the reasons for such a decision

should either be clear from the resolution itself or from the documentation before the councillors

when the making of the resolution was discussed”. If the reason is in the minutes as set out in a

motion that was before the members when making the decision, the test is clearly satisfied (although

there would be other ways to satisfy it). There is nothing in this point.

Core ground 3 – lack of access to agenda and minutes

89. Core ground 3 is:

“Core ground No. 3 –The Decision is invalid by reason of the failure of the Respondent to

make available to the Applicants, over a prolonged period of time, the minutes and agendas

of special meetings of the Council. In consequence, the decision was made in breach of fair

procedures and/or in breach of natural and constitutional justice, in so far as the Applicants

were unlawfully denied access to an effective public consultation process during the course

of the statutory process leading up to the decision of 9 May 2022 to adopt the New Plan, as

a result of the matters referred to under the Particulars of Core Ground no.3, below. Further,

or in the alternative, the Respondent acted in breach of its obligations under article 28A of

the Constitution of Ireland which provides that the State recognises the role of local

government in providing a forum for the democratic representation of local communities, in

exercising and performing at local level powers and functions conferred by law, which in the

present context involve the exercise and performance of the respondents statutory functions

in relation to the review, preparation and adoption of the statutory development plan

pursuant to sections 9-12 of the 2000 Act.”

90. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 3 – No access to Agendas and Minutes of Council Meetings

Applicants position:

26. The Decision is invalid by reason of the failure of the Respondent to make available

to the Applicants, over a prolonged period of time, the minutes and agendas of Special

Meetings of the Council.

27. The Applicants sought relevant information, during all material stages of the process

of the making of the New Plan before it was finally adopted, which was not made available

to the Applicants or the public generally. At the date of the within proceedings issuing, the

minutes of the Special Meetings of the Council were not formally available to the general

public.

28. The Council contends that the Applicants have no legal entitlement to access the

minutes of the meetings relating to the making of decisions concerning their lands during

the development plan process. However, this legal entitlement arises both from the

democratic nature of the process and the entitlement of the public to know the material and

reasons upon which decisions of both the executive and elected members of the Council

were based. The Affidavit of Pamela Harty sworn on 27th January 2023 (§24 et seq.) sets

out why access to the minutes were important and specifically identifies the points that the

Applicants could have made (in particular, in relation to residential zoning at Moycullen) if it

had access to the minutes.

29. In consequence, the decisions made in respect of the Applicants’ lands under the

New Development Plan were made in breach of fair procedures and/or in breach of natural

and constitutional justice, in so far as the Applicants were unlawfully denied access to an

effective public consultation process during the course of the statutory process leading up

to the decision of 9 May 2022 to adopt the New Plan, as a result of the matters referred to

under the Particulars of Core Ground no.3, as set out in the Amended Statement of Grounds.

30. The Applicants further plead that the Respondent acted in breach of its obligations

under article 28A of the Constitution of Ireland which provides that the State recognises the

role of local government in providing a forum for the democratic representation of local

communities.

Respondent’s position:

31. Core Ground 3 does not disclose any legal complaint.

32. The Applicants were not refused access to the Minutes of Special Meetings of the

elected Members of Council and the minutes of such meetings are made available to the

public on the Council’s website when they have been prepared and formally adopted. There

is no statutory obligation to publish the minutes of such meetings within any given time

frame, or at all.

33. The Applicants have no legal entitlement to access the minutes of Council meetings

and that access to same is not part of the public participation envisaged in sections 10 and

12 of the 2000 Act. Without prejudice to this position, any alleged failure to publish the

Minutes did not have and could not have had the effect of limiting the ability of the Applicants

to make submissions during the public consultation phase of the plan. In relation to the

issue of a number of Special Meetings being held online, the Respondent points to the Covid-

19 pandemic and considers that the Applicant would have been aware that plenary meetings

are held on the 4th Monday of every month.”

91. Paragraph 14 of sch. 10 to the Local Government Act 2001 provides:

“14.—(1) Minutes of the proceedings of a meeting of a local authority shall be drawn up by

the meetings administrator.

(2) The minutes shall include—

(a) the date, time and place of the meeting,

(b) the names of the members present at the meeting,

(c) a list of the senior employees of the local authority present at the meeting,

(d) reference to any report submitted to the members at the meeting,

(e) where there is a roll call vote, the number and names of members voting for and

against the motion and of those abstaining,

(f) particulars of all resolutions passed at the meeting, and

(g) such other matters considered appropriate.

(3) A copy of the minutes of a meeting shall be sent or given by the meetings administrator

to each member of the local authority.

(4) Minutes of a meeting shall be submitted for confirmation as an accurate record at the

next following ordinary meeting, where practicable, or where not, at the next following

meeting and recorded in the minutes of that meeting.

(5) When confirmed, with or without amendment, the minutes of a meeting shall be signed

by the person chairing the meeting they were submitted to for confirmation and any minutes

claiming to be so signed shall be received in evidence without proof.

(6) Until the contrary is proved, every meeting in respect of the proceedings of which

minutes have been confirmed shall be deemed to have been duly convened and held and all

the members at the meeting shall be deemed to be duly qualified.

(7) A copy of the minutes of a meeting when confirmed in accordance with subparagraph

(5) shall be open to inspection at the principal offices of the local authority and any person

may inspect and make a copy of, or abstract from, the minutes during the usual office hours

of the authority.

(8) A copy of the minutes shall be provided to any person applying for them on payment of

such reasonable sum, if any, being a sum not exceeding the reasonable cost of supplying

the copy, as may be fixed by the local authority.

(9) Each local authority shall make proper arrangements for the safe keeping of the minutes

of the authority.”

92. Section 45 of the 2001 Act provides for public attendance:

Attendance of public and media at meetings.

“45.—(1) In this section—

‘media’ includes accredited representatives of local and national press, local and national

radio and local and national television;

‘members of the public’ means any person who is not attending the meeting at the request

of the local authority.

(2) Subject to subsections (3) and (5), members of the public and representatives of the

media are entitled to be present at a meeting of a local authority.

(3) Where a local authority is of the opinion that the absence of members of the public and

representatives of the media from the whole or any part of a particular meeting is desirable

because—

(a) of the special nature of the meeting, or of an item of business to be, or about to be,

considered at the meeting, or

(b) for other special reasons,

the authority may by resolution decide to meet in committee for the whole or a part of the

meeting concerned, where the authority considers that such action is not contrary to the

overall public interest.

(4) (a) It is necessary for the passing of a resolution under subsection (3) that at least one-

half of the total number of members of the local authority concerned vote in favour of the

resolution.

(b) A resolution under subsection (3) shall indicate in a general way the reasons for the

resolution and those reasons shall be recorded in the minutes of the meeting.

(5) A local authority may, by standing orders, regulate the right of members of the public

and representatives of the media to be present at meetings and, in particular and without

prejudice to the generality of the foregoing, may—

(a) taking account of available space, limit the number of persons to be admitted,

(b) make rules governing the conduct of persons present at meetings,

(c) provide for the removal of members of the public who interrupt the proceedings or who

otherwise misconduct themselves, or

(d) make rules in relation to the taking of photographs or the use of any means for recording

or relaying the proceedings as they take place or at a later stage.

(6) Nothing in subsection (5), other than paragraph (a), shall be read so as to enable a local

authority to limit the attendance of representatives of the media, and paragraph (a) shall

not be read as enabling a local authority to prohibit the attendance of such representatives.”

93. The position regarding availability of minutes was set out in a document prepared by the

parties which I have slightly expanded as follows:

Document Reference When became available

Minutes of Special Council meetings Exhibit GMCC1, Tab 8 Applicant states not

to consider Chief Executive Report of Hyperlinked PDF book 1 available until a date in

October 2021: [in December 2021/ August 2022, see:

January 2022] - Verifying Affidavit

of Gus McCarthy,

sworn 5 August

2022,

paras. 10(c),11

and 12.

- Verifying Affidavit

of Ronan Barrett

sworn 5 August

2022, paras. 35, 36

The Council says that they

were available from 25th

April 2022 at the Council

Offices. [i.e., the date on

which they were approved

by members]

They were made available

on 6th July 2022 and again

once an IT issue had been

resolved on 29th July 2022

(Affidavit of Mr Dunne at

§15)

(a) Meeting of 6 December 2021 Book 1, p.1987 Ditto

(b) Meeting of 10 December 2021 p.2009 Ditto

(c) Meeting of 13 December 2021 p.2025 Ditto

(d) Meeting of 17 December 2021 p.2048 Ditto

(e) Meeting of 20 December 2021 p.2078 Ditto

(f) Meeting of 5 January 2022 p.2119 Ditto

(g) Meeting of 6 January 2022 p.2176 Ditto

(h) Meeting of 7 January 2022 p.2313 Ditto

(i) Meeting of 10 January 2022 p.2412 Ditto

(j) Meeting of 11 January 2022 p.2557 Ditto

(k) Meeting of 12 January 2022 p.2687 Ditto

(l) Meeting of 13 January 2022 p.2882 Ditto

Minutes of the Ordinary Exhibit PH3 to the Second Affidavit of Pamela Harty

meetings: Affidavit of Pamela Harty - sworn 27 January 2023,

Hyperlinked Book 2 paras. 9 – 14, and 16-18

p.5731 Hyperlinked PDF Book 2,

p.4563

(a) Meeting of 28 February 2022 5732 Date of approval and

(b) Meeting of 7 of March 2022 5741 availability unclear but in

(c) Meeting of 28 of March 2022 5764 each case not until the

(d) Meeting of 25 of April 2022 5790 following monthly meeting

at the earliest, which in the

case of the earliest of the

meetings would have been

after the close of the period

for submissions on material

amendments.

94. I don’t need to resolve the issue as to exactly when the minutes of the special meetings

were available because on any view it was after the close of the period for submissions on the

material amendments (i.e., it was April 2022 for the special meetings and 7th March 2022 for the

February 2022 monthly meeting at the earliest – submissions on the material amendments closed

on 4th March 2022).

95. One is naturally concerned about alleged delays in making available of documents,

particularly where they constitute environmental information for the purposes of directive 2003/4/EC

of the European Parliament and of the Council on Public Access to Environmental Information. That

said, until approved by members, there are no minutes, only draft minutes. The council can’t be

faulted for not publishing minutes prior to their coming into legal existence on being approved.

96. What might have been more useful would have been to seek access to meeting papers

including motions and reports, but the applicants didn’t go looking for those, so can’t really expect

certiorari on that basis.

97. As signalled earlier, the applicants plead that:

“35. On 3 August 2022, the Applicants legal advisors identified a means of access to a

directory of files on the ‘extranet’ of Galway County Council, which held PDF copies of 113

documents comprising agendas and minutes of the meetings of the Council from 2014 up to

2022. It is not clear whether this comprises all of the agendas issued, and meetings held.

As at the date the issue of proceedings, the Council website contained a link which directed

the public seeking access to agendas and minutes of meetings, to a page with no content.”

98. There are two aspects to this – firstly the fact that the public-facing page had no content.

That appears sub-optimal. Secondly the fact that access to hidden directories was possible – I

emphasise that this did not involve infringing any security measure. That also appears sub-optimal.

99. Returning to the pleaded legal basis for certiorari, the applicants don’t rely on EU law, the

right to good administration under the Charter, the Aarhus Convention, or anything else other than:

(i) “fair procedures and/or in breach of natural and constitutional justice”;

(ii) the council’s “obligations under article 28A of the Constitution”; and

(iii) an unparticularised “right to effective public participation in the development plan

making process” (sub-ground 27).

100. Breach of fair procedures has not been made out. The lack of provision of documents

under FOI on the basis of incorrect information is sub-optimal but that was just human error and it

doesn’t mean that the plan is invalid. The applicants were not deprived of access to the actual

information – the council meetings are held in public and they could simply have attended, as many

interested parties do in such situations. As the council pleads at para. 45 of the statement of

opposition:

“Plenary meetings are always held on the 4th Monday of every month at 11am (or the Third

Monday if the 4th is a bank holiday) as would have been known to the Applicants. In addition

the dates for special meetings would have been agreed in advance at the preceding Plenary

Meeting and members of the public can attend at the meeting place of the council

(Currandulla Community Hall) and could also apply for access to the on-line meetings

through the Council.”

101. The affidavit verifying that hasn’t been effectively contested.

102. In any event the legislative duty on the council is to make minutes available for inspection.

The applicants haven’t established evidentially that there was any breach of that. The provision

relied on doesn’t compel the council to make agendas or draft minutes available, and no legal basis

to the contrary has been properly pleaded.

103. The applicants’ first request for council minutes was made in February 2022 by telephone

(see 2nd affidavit of Ms Harty para. 8). So given the timeline, the only ground that could even

potentially have been affected by any breach of rights arising from the reply to that is ground 3

relating to Céibh an tSrutháin alone.

104. Insofar as the second submission regarding the draft plan is concerned, the papers disclose

a complaint of breach of fair procedures due to lack of minutes – but what prejudice? The draft plan

was as it was at that stage in February 2022 and had not been the subject of material amendment

in relation to the other sites. So at that point no further submission could be made in relation to the

other sites. No request for minutes had been made at the point when the council was dealing with

those other sites and when a submission would have been a legal option.

105. As regards getting the minutes for the purposes of the third submission, there is a huge

esprit d’escalier feeling to the applicants’ complaints.

106. At para. 10 of her affidavit, Ms Harty says: “[i]n particular, despite multiple attempts, I was

unable to locate or otherwise access minutes of the Special meetings of the Council at any stage

following the making of our second submission dated 28 July 2021 on behalf of the Applicants”. But

the second submission had been made at that stage – getting the minutes was neither here nor

there at that point. The fact that she repeats complaints about not getting the minutes after the

making of submissions in many subsequent paragraphs doesn’t add anything to the point. There is

no need for me to rehearse those repetitions.

107. She goes on to say at para. 13:

“On 4th of February 2022, the Proposed Material Amendments to the Draft Development

Plan were published. Although the Material Alterations resulted from the Council meetings

that were apparently held prior to their proposal, we (at MKO) could not consider how the

detail of our second submission dated 28 July 2021 was considered and decided upon in

respect of each client site. Inevitably, that prejudiced our ability to advise our client as to

how to proceed. In particular, it was not apparent as to whether the elected members had

provided any planning policy justification for the material amendments in respect of Maigh

Cuillinn (Moycullen). Accordingly, our third submission of 4 March 2022, on behalf of our

client was hampered by our lack of access to the minutes.”

108. But that is sheer assertion at a generalised level. The point is about what the applicants

claim is missing – there is alleged to have been no planning justification. That alleged lacuna didn’t

hamper the making of a submission – the applicants were fully able to argue as to why a T zoning

was preferable to OS. Nothing crucial has been pointed to that would have been said had the specific

planning rationale been available directly from the council – and in the ordinary course of things it

could have been obtained from members had they been asked.

109. She says at para. 17:

“When we followed the links to the webpage(s) where these minutes and agendas were

supposed to be provided, there was no content or links to such content. I made contact

with the Council to obtain copies of the minutes and agendas but was told they were not

available yet. My colleagues and I were at a loss to resolve this difficulty. Indeed, I

understand that our client, Ronan Barrett, was not only unable to access the same

information, but that having made a request for access to the minutes through a Freedom

of Information request, that request was refused, the reason given being that the minutes

were already publicly available. I say that as far as I was concerned, that was incorrect.

That information was not in fact available online on the date of that refusal and did not

become available until around the time our client issued legal proceedings in early August.”

110. The fact that the web links were blank and that the applicants’ advisers were at a loss is

unfortunate but we are talking here about the situation in July 2022 which is after the adoption of

the plan.

111. Any irregularity at this point is a post hoc failure to publish material, and doesn’t itself

establish any failure of fair procedures in substance during the process either at all or in such a way

as to come remotely close to warranting an order quashing the plan.

112. At para. 22 she says:

“The fact that the public were never made aware of these concerns about the accuracy of

the minutes while the development process was ongoing due to the unavailability of the

minutes for inspection by the public gives rise to additional concerns about the process. The

last paragraph in the extract above also gives particular cause for concern in so far as it

indicates that the rationale and reasons for certain decisions of the Members were not

discussed at the Development Plan Meetings but were the subject of written submissions by

the Elected Members.”

113. But this is highly generalised. Members are not obliged to agree the minutes as presented,

and have the right to seek to defer them to discuss. The fact that individual members might have

“concerns” doesn’t automatically mean that such concerns are valid (“concerns” can be a slippery

thing to deal with in any context as they definitionally shy away from specific factual propositions

that can be disproved), and nor does it make the minutes invalid, or the process invalid, or create

a legal duty on anybody to make the public aware of such alleged concerns. The volume of minutes

ran to over 1000 pages and it was accepted by officials that members might need more time to

discuss them. If a member of a body has an issue with anything circulated, there isn’t any obligation

to raise that issue at a meeting. The point can legitimately be sent in by written communication.

To see some fundamental flaw in fair procedures with what happened here is bordering on conspiracy

theorising. “[A]dditional concerns about the process” is a threadbare foundation on which a court

could grant an order of certiorari.

114. At para. 28, she complains that the CE report “did not provide any evidence of any

consideration by him as to whether the proposed zoning of Site Nos. 3 and 5 aligned with the

sequential approach for zoning land”. That’s a complaint about an omission – any submission was

perfectly capable of dealing with the sequential approach without needing to know that the CE hadn’t

addressed that to the applicants’ satisfaction already. Thus as regards the complaint at para. 32

that “[i]f MKO had access to the minutes of the relevant Special Meetings, we would have been able

to comment on the fact that it was clear from the minutes that the Council had not applied the

sequential test to justify the land use zoning changes proposed for Site Nos. 3 and 5 in Material

Alteration 8.5d”, that was something they were able to comment on based on what was on the face

of the decision even without seeing that the minutes didn’t add anything. But more fundamentally,

once we had got through the material amendment stage, the further discussion was confined to the

subject-matter of the material amendments – that is, for present purposes, exclusively the Céibh

an tSrutháin site. Issues where the plan was not amended were effectively closed off at that point

from further repetitive submissions – the chance to make submissions on such points was on the

draft plan. Fair procedures doesn’t require a second opportunity to run one’s case. The whole notion

of making a submission after February 2022 (when the minutes were sought) in relation to the

contested zonings at An Ceathrú Rua and Maigh Cuilinn is misconceived. No such submission was

possible by that stage

115. A similar point is made in relation to Céibh Sruthán. It is suggested that the motion contains

no planning rationale, and had the minutes been available, this could have been pointed out. Firstly

that is totally incorrect – there is a planning rationale. But the applicants were fully entitled to argue

that there was no valid rationale for the OS zoning if that was their view. Lack of access to minutes

– which they claim add nothing – didn’t hamper the applicants either at all or in some way that was

so fundamental that certiorari must be granted.

116. Overall the applicants’ complaints are largely about what is missing from the minutes rather

than what is in them. By definition they weren’t harmed by not being given a vacuum. But more

significantly if the applicants really wanted to know the content of the motion that was passed

regarding the material amendment setting out a justification, they could have asked any one of 36

councillors for a copy. Sure, that’s ad hoc and sure it’s non-statutory, but isn’t that the point of

Article 28A – so that stakeholders and residents can have a conduit of information and assistance.

The applicants didn’t go looking for the information in such a way or in any way other than by calling

on the council to produce minutes. But there were no minutes at that stage, only draft minutes,

which had no official status until adopted by the members, which didn’t happen until a subsequent

meeting.

117. The whole argument about minutes is based on something of a misconception anyway.

Galway County Council minutes, like those of many and probably most bodies, are not obliged to

set out a discursive narrative and do not in fact do so. Rather they record the decision. That is

perfectly lawful. Had there been minutes and had those minutes been disclosed at the time, they

wouldn’t have told the applicants a great deal more than they already knew, and certainly absolutely

nothing more than they could have found out with reasonable diligence. There’s no obligation to go

further than saying something like “after a discussion the motion was passed”. That is a sufficient

minute.

118. As regards agendas, no request whatsoever was made prior to the proceedings for agendas

– the first complaint was in the judicial review. The applicants now seek an order that the plan be

quashed – not merely subjected to a declaration, but quashed – because the council didn’t provide

something they never asked for. That is beyond implausible.

119. The general concept of democratic local government in Article 28A, on its own, doesn’t,

unfortunately, allow the court to infer new rights such as a right to immediate public access to local

government documents, just as the term “democratic” in Article 5 of the Constitution is not authority

to invalidate legislation by reference to inferred new rights not already recognised in or under more

express constitutional text.

120. The right to public participation referred to in sub-ground 27 is pleaded in opaque terms

without reference to any specific legal basis. All that needs to be said is that the applicants haven’t

demonstrated any actual breach of their right to public participation in the making of the plan and

certainly not a breach arising by reason of the fact that they were not given minutes they sought at

a time when those minutes didn’t exist by reason of not having been approved.

Summary

121. Prior to concluding, there are aspects about the provision of information that are somewhat

sub-optimal, such as the error in the rationale for refusing the FOI request or the alleged blank web

pages. But such complaints don’t warrant certiorari on these pleadings and on these facts.

122. More generally, it might be better if there was a procedure whereby meeting papers would

be available online either in advance of or at least promptly following a council meeting, which would

provide a formal rather than an informal way to access matters such as the text of motions. It

would also be preferable if minutes were more systematically approved at the following meeting and

hence made immediately available qua minutes thereafter, thus eliminating a delay which might

give rise to complaint, or if drafts could be available in the meantime with appropriate disclaimers.

Those are issues not limited to this council. In addition, the legislative scheme in para. 14(7) of sch.

10 the 2001 Act providing for inspection of minutes physically is totally out of date. Publication on

the web is the standard and most democratic way to publish material, and ideally this legislation

and legislation dealing with publication of documents generally would reflect that.

123. For balance, I should also record that I was slightly unnerved that the applicants were able

through a URL they stumbled across to access internal and non-indexed web pages created by the

council (the extranet). On the face of things it might appear those pages might preferably have

been published and so maybe there was some rough justice involved, but given the requirements of

GDPR if nothing else (if and to the extent that that potentially applies), access to such matters

should be dealt with in a deliberate rather than an accidental way. I would encourage the applicants

to advise the council forthwith as to what links are open in this manner so that matters can be

regularised. But for balance if nothing else I would also encourage the council to maximise its

accessible web publication of relevant documentation.

124. In outline summary, without taking from the more specific terms of this judgment:

(i) A CE has a wide margin of appreciation in summarising submissions, which can be

done on a grouped, themed or geographic basis and does not need to be point-by-

point. The council did not exceed that margin in this case, where the applicants’

submissions were given generous treatment.

(ii) In any event, even if the submission was impermissibly exiguous, the applicants

should not be afforded certiorari because the members were not wholly dependent

on the summaries, had access to the full submissions and were briefed at various

workshops where the issues raised were discussed, and secondly because the

applicants made no effort to redress any omissions at the time

(iii) The reason for the Céibh an tSrutháin OS zoning is set out in the motion passed.

This is both sufficient in content and sufficiently clear on the record as it is embodied

in documents before the members at the material time.

(iv) The applicants sought minutes at a time when the minutes did not formally exist qua

minutes as they had not been agreed. The minutes were not approved until after

the close of submissions on material amendments. The applicants have not

demonstrated any breach of fair procedures actually arising as a result, especially

where their case is that the minutes did not disclose any information justifying the

decisions, where they could have sought the meeting papers from members or

officials but did not, and where the process had moved on by the time the minutes

were first sought such that the question of making a submission on the properties

at An Ceathrú Rua and Maigh Cuilinn no longer arose.

125. For completeness I have considered all grounds advanced but none have merit above and

beyond what is set out above, and generally the reasons in this judgment also apply to other sub-

grounds. Finally, as the lands in question are located in the Gaeltacht it seems appropriate to respect

that by attempting to provide an indicative summary in Irish.

126. Mar achoimre:

(i) Tá corrlach leathan breithiúnais ag an príomhfheidhmeannach chun achoimre a

dhéanamh ar aighneachtaí, rud féidir é a dhéanamh ar bhonn grúpáilte, téamach nó

geografach agus ní gá go mbeadh sé pointe ar phointe. Níor sháraigh an chomhairle

an corrlach sin sa chás seo, áit ar caitheadh go fial le haighneachtaí na n-iarratasóirí.

(ii) Ar aon chuma, fiú má bhí an aigneacht ró-ghearr, níor cheart certiorari a thabhairt

do na hiarratasóirí, ar an gcéad dul síos, toisc nach raibh na comhaltaí ag brath go

hiomlán ar na hachoimrí, go raibh rochtain acu ar na haighneachtaí iomlána agus

cuireadh ar an eolas fúthu iad ag ceardlanna éagsúla ina raibh na saincheisteanna a

ardaíodh, agus sa dara háit toisc nach ndearna na hiarratasóirí aon iarracht aon

easnamh ag an am a cheartú.

(iii) Tá an chúis atá leis an gcriosú ag Céibh an tSrutháin leagtha amach sa tairiscint a

ritheadh. Tá sé seo dóthanach ó thaobh ábhair de agus soiléir go leor ar an taifead

mar go bhfuil sé corpraithe i ndoiciméid a bhí os comhair na gcomhaltaí ag an am

ábhartha.

(iv) Lorg na hiarratasóirí miontuairiscí ag am nach raibh na miontuairiscí ann go foirmiúil

agus nach raibh siad aontaithe. Níor faomhadh na miontuairiscí go dtí tar éis

dheireadh na n-aighneachtaí ar leasuithe ábhartha, ach ní raibh sé sin mídhleathach.

Níor léirigh na hiarratasóirí aon sárú ar an bpróiseas cuí a tháinig chun cinn, go

háirithe nuair a deir siad nár nocht na miontuairiscí aon fhaisnéis ábhartha, ar an

dara dul síos toisc go bhféadfaí páipéir na gcruinnithe a lorg ó ionadaithe poiblí, agus

sa tríú háit nuair a iarradh miontuairiscí, níor tháinig ceist maidir le leasú a

dhéanamh ar chriosú na maoine ar An gCeathrú Rua agus i Maigh Cuilinn a

thuilleadh.

Order

127. For the foregoing reasons, it is ordered that:

(i) time be extended for the bringing of the proceedings;

(ii) unless any written legal submission to the contrary is delivered to the court within

14 days, the proceedings be dismissed with no order as to costs;

(iii) the parties be required arrange between them for one of them to notify the Minister

of the outcome as soon as possible and in any event within 7 days, on the basis of

this being for information only with no requirement to appear; and

(iv) the matter be listed on Monday 18th November 2024 to confirm the foregoing.