High Court dismisses planning review as Council's zoning decisions were rational and within its discretion.

Colbeam v DLRCC [2025] IEHC 437

THE HIGH COURT PLANNING & ENVIRONMENT JUDICIAL REVIEW [2025] IEHC 437 Record Number: 2022/350 JR IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED BETWEEN COLBEAM LIMITED Applicant AND DÚN LAOGHAIRE-RATHDOWN COUNTY COUNCIL Respondent AND WENDY JENNINGS AND ADRIAN O’CONNOR Notice Parties

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 5 AUGUST 2025

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 5 AUGUST 2025 ................................................................... 1

INTRODUCTION ............................................................................................................................................................ 2

CORE GROUNDS 3 (IRRELEVANT CONSIDERATIONS) & 2 (RELEVANT CONSIDERATIONS) ...................................................................... 5

CHRONOLOGY & OBSERVATIONS THEREON ................................................................................................................. 7

DLRCC DEVELOPMENT PLAN 2016 ......................................................................................................................................... 8

NOTES: REDMOND #1 & JENNINGS ON INTERPRETATION OF 2016 DEVELOPMENT PLAN ................................................................... 9

JUDGMENT IN REDMOND #1 - 10 MARCH 2020 ...................................................................................................................... 13

CE’S PROPOSED DRAFT DEVELOPMENT PLAN - OCTOBER 2020 ................................................................................................... 15

ADOPTION OF DRAFT DEVELOPMENT PLAN - DECEMBER 2020 & NOTES THEREON ......................................................................... 16

Transcript - 15 December 2020 as to Motions 122, 123 & 124 .................................................................................. 19

Minutes - 18 December 2020. .................................................................................................................................... 21

ADOPTED DRAFT DEVELOPMENT PLAN - PUBLISHED 11 JANUARY 2021 ........................................................................................ 25

Figure 1 – Adopted Draft Plan Zoning Map Extract ................................................................................................... 25

Thornton O'Connor Report for Colbeam - Student Accommodation SHD - February 2021 ........................................ 26

COLBEAM (THORNTON O'CONNOR) SUBMISSION TO COUNCIL AS TO ADOPTED DRAFT PLAN - 16 APRIL 2021 ..................................... 27

CE REPORT TO ELECTED MEMBERS ON DRAFT PLAN CONSULTATION - JULY 2021 ........................................................................... 29

COUNCIL DECISION TO NOT AMEND DRAFT PLAN (MATERIAL ALTERATIONS) – SEPTEMBER/OCTOBER 2021 ....................................... 31

Figure 2 – CE’s Digital Web Map - 2 September 2021 - extract ................................................................................. 32

Council Decision to Not Amend Draft Plan – October 2021 ....................................................................................... 33

Transcript - 21 October 2021 ..................................................................................................................................... 35

MAKING OF 2022 DEVELOPMENT PLAN - 10 MARCH 2022 ....................................................................................................... 38

Figure 3 – 2022 Development Plan Zoning Map Extract ............................................................................................ 39

JENNINGS V ABP & COLBEAM - JUDGMENT 17 FEBRUARY 2023 ................................................................................................. 41

THE LAW ......................................................................................................................................................................46

POWER TO ZONE LAND FOR OPEN SPACE ................................................................................................................................. 46

COURTS SLOW TO INTERFERE WITH DEMOCRATIC DECISIONS ....................................................................................................... 47

Colbeam v DLRCC [2025] IEHC 437

NO EXPECTATION OF CONTINUATION OF ZONING ...................................................................................................................... 48

LANDOWNERS’ RIGHTS IN DEZONING DECISIONS ....................................................................................................................... 50

RELATIONSHIP BETWEEN LAW OF REASONS & RELEVANCY PRINCIPLE & PRACTICALITIES OF POLITICAL DEBATE ...................................... 50

ZONING DECISIONS - REASONS AND CONSIDERATIONS................................................................................................................ 55

s.12(11) PDA 2000 ...................................................................................................................................................... 55

Alleged Irrelevant Considerations & Issues Arising .................................................................................................... 56

Are Reasons for Rezoning Required and, if so, to What Extent? ................................................................................ 57

Where Are Reasons To Be Found?.............................................................................................................................. 59

Transcripts or like records as they Disclose Reasons & Considerations – How are they to be Read? ........................ 64

COLBEAM’S 8 PROPOSITIONS OF LAW .........................................................................................................................73

WERE THE IMPUGNED CONSIDERATIONS IRRELEVANT? ..............................................................................................78

MORAL OBLIGATION ............................................................................................................................................................ 78

OUTMANOEUVRING THE BOARD............................................................................................................................................. 79

Outmanoeuvring the Board – Conclusions as to Relevance and Fettering ................................................................ 85

OWE IT TO THE COMMUNITY ................................................................................................................................................. 86

WAS REGARD TO ALLEGED MORAL OBLIGATION MATERIAL? ......................................................................................87

CONCLUSION - GROUND 3 – IRRELEVANT CONSIDERATIONS ......................................................................................88

GROUND 2 – FAILURE TO CONSIDER PROPER PLANNING AND SUSTAINABLE DEVELOPMENT & RELEVANT

CONSIDERATIONS ........................................................................................................................................................88

G2 – STATEMENT OF GROUNDS & COLBEAM’S POSITION ........................................................................................................... 88

G2 - COUNCIL’S POSITION .................................................................................................................................................... 89

G2 – DISCUSSION & DECISION .............................................................................................................................................. 90

CE Report of July 2021 ................................................................................................................................................ 90

Thornton O’Connor Submissions for Colbeam - April 2021 ........................................................................................ 91

KPMG Report – October 2021 .................................................................................................................................... 92

Colbeam Lands Don’t Function as Public Open Space and Won’t Without Development.......................................... 94

Prior Planning Permission Decisions .......................................................................................................................... 94

Proper Planning & Sustainable Development ............................................................................................................ 95

IRRATIONALITY .................................................................................................................................................................... 96

CONCLUSION - GROUND 2 – RELEVANT CONSIDERATIONS ........................................................................................................... 97

CONCLUSION – OVERALL .............................................................................................................................................97

INTRODUCTION1

1. In these proceedings, the Applicant (“Colbeam”) seeks, primarily, certiorari quashing:

• The decision of the Respondent, Dún Laoghaire-Rathdown County Council (the “Council”), made on

10 March 2022, to make the Dún Laoghaire-Rathdown County Development Plan 2022 to 2028 (the “2022 Development Plan”).

alternatively,

• The Council’s decision to make and adopt, within the 2022 Development Plan, the amendments made by way of three motions, 122, 123 and 124, passed2 at a meeting of the elected members of the Council on

15 and 18 December 2020 in adopting the draft development plan.

1 Headings are for general assistance only and are not determinative of content.

The Grounds say “tabled” but in fact they were passed on 15/12/21.

Colbeam v DLRCC [2025] IEHC 437

2. Whatever about the form of the proceedings, in reality Colbeam does not seek to quash the entire 2022 Development Plan. Colbeam’s lands, comprising a 2.12-hectare site at Our Lady’s Grove, Goatstown Road, Dublin 14 (“the Colbeam Lands”), had been zoned for residential use in the 2016 Development Plan. The 2022 Development Plan, in effect by the three motions:

• Rezoned3 the Colbeam Lands from residential to open space use – to Colbeam’s obvious commercial disadvantage.

• Continued the application in the 2016 Development Plan to the Colbeam Lands of an INST Objective4 as to development of institutional lands and open space requirements imposed on such developments. Also, the terms of the INST Objective were amended in the 2022 Development Plan to require that the open space be specifically public open space.

3. Colbeam seeks specifically to quash those elements of the Development Plan. In substance they impugn the decisions of:

o December 2020, adopting the Draft Development Plan zoning the Colbeam Lands for open space and applying the INST Objective thereto.

o October 2021, rejecting recommendation by the Chief Executive of the Council (the CE”) to materially alter the Draft Development Plan to zone the Colbeam Lands for residential use and disapply the INST Objective.

It is in this more limited sense that I will usually refer in this judgment to “the Impugned Decision”. This view

seems to me to accord with the Supreme Court’s approach in Killegland.5

4. The Colbeam Lands comprise about 35% of the larger former campus of Our Lady’s Grove School and Convent of about 6 hectares (“the OLG Campus”). The OLG Campus has been substantially redeveloped over time6 and now comprises, broadly, the following:

• In its northern half,7 a secondary school, a primary school, a childcare facility, a hockey pitch, three tennis courts, a basketball court and other school-associated open spaces.

• In its south-eastern quadrant8 a convent9 and a residential development, “The Grove”, built in or about 2016/2017 by a developer to which I will refer as “Durkan Estates”.

3 On occasion such rezoning is, understandably, described as “dezoning”. However, it seems to me that this description is peculiarly informed by the

private interest of the landowner, whereas rezoning is usually informed by a positive view of the public interest. It seems to me that the word

“rezoning” is neutral and generally more appropriate. That is so as long as it is kept in mind, inter alia, that negative effects of such rezoning on the

interests of the landowner will usually inform the landowners’ rights – for example, to reasons for the rezoning.

4 This objective is also described, usually as to its specific application to the OLG Campus as an “INST Designation”. Usage is not entirely consistent and

in effect both phases are interchangeable.

5 Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, [2023] 12 JIC 2109. Hogan J, Part IV.

In all, aerial photos were exhibited from the years 1995, 2000, 2005, 2009, 2016, 2017, 2018 and 2020 - see exhibit LMCG1 Tab 4 and also Councillor

Saul’s slides of 18 December 2020.

7 Roughly considered.

8 Roughly considered.

Errew House. I am unclear when it was built but it predates May 2009 – see Councillor Saul’s slides of 18 December 2020.

Colbeam v DLRCC [2025] IEHC 437

• In its south-western quadrant or corner,10 the Colbeam Lands. They formerly included a primary school – since demolished and replaced in the north-east of the OLG Campus – and associated grounds. I am happy from the various aerial photos to hand11 that south of the since-demolished primary school lay a hardsurfaced playing court of some kind and also that the proper inference is that the open space west and south-west of the since-demolished primary school was ancillary to that school. Counsel for Colbeam fairly declined to dissent from that inference.12 The Council’s senior planner draws the same inference.13 She also discerns in an aerial photo of 200914 “what appear to be goal posts on the lands” west of that primary school. More recently, the Colbeam Lands have at times been used as a car park and works compound for development works elsewhere on the OLG Campus. They at present consist of open space.

They are not, and have never functioned as, public open space.

One vehicular access point, off Goatstown Road to the east, serves the OLG Campus other than the convent in the south-east of the Campus.15

5. At trial, Colbeam confined its case to Grounds 3 and 2, in order of Colbeam’s emphasis at trial, of its statement of grounds. Inter alia, the challenge to the Impugned Decision for want of reasons was not pursued. The relevant Core Grounds are as follows.

10 Roughly considered.

11 Including photo entitled “OSI Orthophotography 2005” and, in Councillor Saul’s slides of 18 December 2020, “March 2017 Our Lady’s Grove OLG

Campus Site Sale” and “May 2009 Our Lady’s Grove OLG Campus”.

Transcript Day 1 pp69 & 70.

13 Affidavit of Louise McGauran, sworn 28/11/22, §17.

14 In Councillor Saul’s slides of 18 December 2020.

15 There is a separate gated vehicular access off Goatstown Road serving the convent. There is also a pedestrian/cyclist access from Friarsland Avenue

to the south.

Colbeam v DLRCC [2025] IEHC 437

CORE GROUNDS 3 (IRRELEVANT CONSIDERATIONS) & 2 (RELEVANT CONSIDERATIONS)

6. Core Ground 3 alleges that:

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed to restrict its considerations to the proper planning and sustainable development of the area to which the development plan relates, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or any Minister of the Government, in breach of section 12(11) of the Planning Acts and/or contrary to the judgment … in Christian16 … and/or had regard to irrelevant considerations including:

a. prejudgment on the part of the elected members in respect of any pending or future application or appeal made that includes “residential use” and as, perhaps, a warning that no such applications will be entertained;

b. the motive or desire to fetter the discretion of the Council and/or the Board, when making a

decision on any pending application or appeal considering any planning or future application or appeal made that includes about suitability of the Colbeam Lands for “residential use”

and/or, in particular, to interfere with the extant permission; and/or, c. the “dysfunctional planning legislation”, the perception of An Bord Pleanála and/or its role, function and performance under the Planning Acts, the “controversies” over former religious sites, and the perception of the quantum of religious land “being sold to developers”.”

7. The use of quotation marks in Ground 3(c) – is not borne out by the evidence as relating to the members’ consideration of the Colbeam Lands though, as will be seen, the plea can be fairly understood as encompassing analogous complaints. In this regard, I will address, in the chronology below, Colbeam’s particulars of the plea.17

8. Core Ground 2 alleges that

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed to consider, whether properly or at all, the proper planning and sustainable development of the area to which the development plan relates, in breach of section 12(11) of the Planning Acts and/or failed to have regard, properly or at all, to relevant considerations including:

(a) the Board’s determinations of 2 July 2020 (ABP-304420-19) and 3 June 2021 (ABP- 309430-21) that residential use at the Colbeam Lands18 is consistent with proper planning and sustainable development;19

16 Christian v Dublin City Council [2012] IEHC 163.

17 See entry 9 March 2022.

18 The pleading refers to the “Grove Lands”. I have amended the reference to conform to the nomenclature adopted at trial and in this judgment

I have reworded this plea without changing meaning.

Colbeam v DLRCC [2025] IEHC 437

(b) the evidence of the Chief Executive that the Colbeam Lands do not function as an area of public open space, the evidence produced by Thornton O’Connor Town Planning that the Colbeam Lands have never comprised public open space, and that the desired public open space, as provided for in the New Plan, cannot be achieved without a residential development; and,

(c) the evidence produced by KPMG that open space zoning is not necessary at the Colbeam Lands”.

9. Colbeam asserts that it has invested about €23 million in the Colbeam Lands for site acquisition and preparation for development and did so having regard to the 2016 Plan and the preceding plan.20 Its general assertion is not disputed, though no breakdown of the figure is provided.

10. As the case was run by Colbeam at trial,

• Ground 3 was primarily relied upon21 – though Ground 2 was not abandoned.

• The irrationality pleas were not independently pursued. Nor was the allegation of prejudgment. In both cases, in my view, wisely. Ground 3 was run on an allegation of unlawful regard to irrelevant considerations. Ground 2 was run on an allegation of unlawful failure of regard to relevant considerations.

This is a case about relevant and irrelevant considerations.22

• As to Ground 3:

o The alleged unlawful regard to irrelevant considerations was alleged to have occurred at the Council meeting of December 2020 at which the draft development plan was adopted.

o The plea of desire to “interfere with the extant permission” was not pursued – wisely in my view as, in law, a zoning decision cannot interfere with an extant permission and there is no evidence that the elected members were under a misapprehension that it could. However as the prospect remains that a quashed permission as to the site will be remitted to the Commission for redecision, the issue is not entirely irrelevant.

11. It bears noting at this point that there is, and the Council objected that there is, no plea of material error of fact as to the quantum and percentage of the entire OLG Campus, excluding the Colbeam Lands, already assigned to open space.23

Affidavit of Joseph Cox sworn 3/5/22, §6.

21 Transcript Day 1 p60 – “The focus of my case is going to be Core Ground 3, which is to say that the members took irrelevant considerations into

account.”

22 I expressed that view at the hearing. Transcript Day 2 p16.

Transcript Day 2 pp7 & 15.

Colbeam v DLRCC [2025] IEHC 437

12. The Notice Parties did not participate in the trial.

13. By way of general observation I should say that I have not found it necessary to canvass specifically in what here follows, much of the content of affidavits which, while typically observing that the matter which follows is “more appropriately a matter for legal submissions”, nonetheless embark on precisely such submissions and on argument.

CHRONOLOGY & OBSERVATIONS THEREON

14. The planning and development history of the OLG Campus generally, and the Colbeam lands in particular, is lengthy, complex and a subject of appreciable controversy and repeated litigation. A contextual understanding of that history is of appreciable significance to these proceedings. Significance attaches not merely to what was said or submitted and by whom, but also to whom and when it was said in what is not merely a statutorily, but also a substantively, complex and iterative process of making a development plan. It will be convenient in the chronology below to make factual and legal observations on the significance of particular events – these are signified as my “Notes”.

Date Event 1964/1964 Our Lady’s Grove school24 opened on lands owed by a religious order25 (“the Order”). 1983, 1993, Development Plans zoned the OLG Campus for residential use.26 1998, 2004 & • I have seen the relevant maps.27 2010 • The OLG Campus from 1983 bore an “IN” label and, from 1998, an ‘INST’ label.

• The “IN” label signified, inter alia, an objective “To protect and/or provide for Institutional Use of an Educational, Institutional, or Other Character in open lands”

• The legends to the 1998, 2004 and 2010 maps describe28 the INST label as relating to “To protect and/or provide for Institutional use in open lands”.

The 1983 Plan stated of institutional lands:

“Aside from the valuable functions performed by the institutions as such, these buildings, their land and open character of the sites are valuable assets to their surrounding environments. It is the policy of the Council to retain these institutions and the open character of their sites.”

“… in exceptional cases, where an existing institution wishes to terminate or relocate its activities and where no demand, existing or foreseen, for alternative institutional uses is evident, other uses which comply with the zoning objectives of a particular area may be allowed. In all such cases however, it is the policy of the

24 Exhibited historic development plan maps suggest that the secondary school preceded the primary school built on what has become the Colbeam

Lands but nothing turns on that.

25 The Congregation of the Religious of Jesus and Mary.

26 See Affidavit of Louise McGauran, sworn 28/11/22, §21 et seq. and exhibits thereto.

27 Exhibit LMcG1 Tab 5.

Just legibly – with magnification.

Colbeam v DLRCC [2025] IEHC 437

Date Event Council that some of the open character of the lands in question be retained. A provision of open space in excess of the normal standards (see para. 3.9.1) will be required in these exceptional cases, sufficient to maintain the open character of such parts of the site as are considered necessary by the Council for the purpose”.

• Similar content as to the protection of the open space and open character of institutional lands is a constant of the later plans.

• So, since 1983 the OLG Campus has been identified as “open lands” and it has been a development plan aim to preserve their “open character”.

The 1998 Plan introduced a quantified minimum open space requirement, in the exceptional cases of redeveloping institutional lands, subject to “Some of the open character of the lands in question being retained. A minimum open space provision of 20% of the total site area will be required.”

• The requirement was increased to 25% in the 2010 Plan.

2008 Permission was granted to relocate Our Lady’s Grove primary school from the Colbeam Lands29 to the north-eastern corner of the OLG Campus.

February/ DLRCC DEVELOPMENT PLAN 2016 March 2016 • Policy RES5: Institutional Lands,30 corresponding to the ‘INST’ label on the plan maps, reads: “[w]here distinct parcels of land are in institutional use (such as education, residential or other such uses) and are proposed for redevelopment, it is Council policy to retain the open character and/or recreational amenity of these lands wherever possible, subject to the context of the quantity of provision of existing open space in the general environs.”

• The accompanying text, in part, reads as to institutional lands no longer required for their historic uses: “[w]here no demand for an alternative institutional use is evident or foreseen, the Council may permit alternative uses subject to … the open character of the lands being retained. A minimum open space provision of 25% of the total site area … will be required on Institutional Lands. This provision must be sufficient to maintain the open character of the site with development proposals structured around existing features and layout …”.

• “In addition to the provision of adequate open space, on Institutional Lands where existing school uses will be retained, any proposed residential development shall have regard to the future needs of the school and allow sufficient space to be retained adjacent to the school for possible future school expansion/ redevelopment.” 31

The relevant map,32 as to the OLG Campus:

• Zoned it for residential use.

• By the ‘INST’ label in the northeast corner, applied the objective “To protect and/or provide for Institutional Use in open lands”. It was later disputed but held in

29 I appreciate that this is an anachronistic description of lands - which Colbeam did not acquire until many years later.

30 §2.1.3.5 Policy RES5: Institutional Lands; §8.2.3.4 Additional Accommodation in Existing Built-up Areas.

31 Emphases added.

Exhibit LMcG1 Tab 5.

Colbeam v DLRCC [2025] IEHC 437

Date Event Redmond #1,33 that the ‘INST’ label applied to all of the OLG Campus, including the Colbeam Lands.

• By tree symbols in south-east and south-west corners, applied an objective “[t]o protect and preserve Trees and Woodlands”.34 June 2016 & In or about this time, the Congregation sold part of the OLG Campus to residential March 201735 developers (“Durkan Estates”). I am unsure of the details of the transaction but it involved sale of, roughly, the southern “half” of the OLG Campus.

On the OLG Campus and by this time:

• The primary school on the Colbeam Lands had been demolished and relocated to the north-eastern corner – leaving the Colbeam Lands as open space but not any longer, insofar as aerial photographs suggest, in active use.

• A convent had been built in the south-eastern corner.

• Durkan Estates was building “The Grove” residential development in the southeastern quadrant of the OLG Campus.

NOTES: REDMOND #1 & JENNINGS ON INTERPRETATION OF 2016 DEVELOPMENT PLAN

As was observed in Jennings:36

i. The INST Objective of the 2016 Plan attributes considerable value to open space and open character.

ii. In the relevant text of the 2016 Plan o “the concepts of ‘open character’ and ‘open space’ are closely linked but not the same. Open character is lent to land by the presence of open space. But the mere presence of open space may not lend open character. For lands to have open character they must be characterised to appreciable degree by that open space.”

o “25% is a minimum. More open space may be required to maintain open character. … if the ‘minimum’ 25% open space is insufficient to maintain the open character of the site, a greater quantum of open space will be required. … the words ‘wherever possible’ denote a significant degree of ambition.”

iii. The Plan, in requiring “open space”, does not require public open space nor is specifically public open space necessary to “open character”.

iv. The INST designation seeks to maintain the open character of the OLG Campus generally.

33 Redmond v An Bord Pleanála [2020] IEHC 151.

These had been applied in earlier plans also. While I will contextually refer to this issue on occasion below, it is not of significance in the case – see

Transcript Day 1 p36.

35 This is apparent from the “Saul Slide Show” to which I will later refer.

36 Jennings & O’Connor v An Bord Pleanála & Colbeam [2023] IEHC 14. It was generally agreed at the trial of these proceedings that I could have regard

to the judgment in Jennings on such matters.

Colbeam v DLRCC [2025] IEHC 437

Date Event v. The maps and photos of the OLG Campus display “open space and/or open character” - in very considerable degree due to the Colbeam Lands and to the area on which The Grove was built after the 2016 Development Plan took effect.37 vi. Of their condition in May 2021, the Board’s Inspector38 had been entitled to the view that the playgrounds, hockey pitch and tennis courts in the northern part of the OLG Campus must be included in the open space calculation (by reference to the 25% minimum) but did not contribute to the open character of the OLG Campus.

vii. In Redmond #139 Simons J had said of the Colbeam Lands: “The “open lands” to the south-west remained in the ownership of the religious congregation as of March 2016.40 The … development plan expressly refers to the ‘open character’ of the lands. It would be illogical to exclude open lands, which are the very thing to which the objectives and policies are directed, from the designation.”

viii. Simons J, by this observation ▪ Considered that open character and open lands coincided in the Colbeam Lands and that the former was created by the latter.

▪ Authoritatively interpreted the 2016 Development Plan as identifying the Colbeam Lands as, at least in large part, “open lands”, as having “open character” and as significantly contributing “open character” to the entire OLG Campus.

▪ Had taken a view with which, on the evidence, it was very easy to agree.

ix. The development of The Grove since the 2016 Development Plan was made, by developing open space, cannot but have amplified the significance of the Colbeam Lands as open space and as contributing open character to the OLG Campus. At least part of both the open space and the development opportunity represented by the OLG Campus at the time of its designation in the 2016 Development Plan had been ’used up’ by The Grove – whether in greater or lesser degree.

x. Residential development of the Colbeam Lands could desirably contribute considerable public and recreational open space to which the public does not at present have access. But that is not the same thing as answering the question whether the Proposed Development will preserve the open character of the OLG Campus – which depends neither on public access nor on recreational use.

xi. Residential development of the Colbeam Lands, as yet consisting of open space, would at least a significantly diminish that open space, which diminution will no longer contribute to the open character of the OLG Campus. (This view related to the specific SHD41 permission at issue in

37 This is in any event apparent from the “Saul Slide Show” to which I will later refer.

In considering Colbeam’s SHD Planning application of February 2021, which informed the Board’s grant of SHD permission in June 2021, which

permissions was quashed in Jennings, inter alia as to consideration of the Open Character of the Site.

39 Redmond v An Bord Pleanála [2020] IEHC 151 §46.

40 When the Development Plan was adopted.

Strategic Housing Development within the meaning of the Planning and Development (Housing) and Residential Tenancies Act 2016 (the “2016 Act”).

Colbeam v DLRCC [2025] IEHC 437

Date Event Jennings but seems to me to arise on any appreciable residential development of the Colbeam Lands).

12 June 1742 The Council passed motions expressing:

• “major concern” at the proposed sale of OLG Campus lands.

• The view that their loss from amenity would lead to:

o No green space for the schoolchildren - to play, to do sports, to be outside.

o No room for the future school expansion.

o Divestment of the educational OLG Campus of facilities for future generations.

• Concern as to the strength of the Development Plan in protecting open space.

• A request that the Council Executive report on the feasibility and implications of rezoning the lands from residential to open space zoning.

3 July 201743 The Council agreed motions to ask its executive:

• To have regard to the wish of the Our Lady's Grove community to have the required 25% open space in one area, close to the schools and available for public use.44

• To write to the Department of Education expressing members’ concerns about the loss of green space around Our Lady's Grove school and to achieve a meaningful green space for the future use of the school.45

A motion to request that, in a planning application on a school site which has an INST symbol, the minimum 25% open space/playing fields should form part of a deed of dedication/taking in charge, to the Local Authority was deferred.46 Notes:

• Likely due to ignorance on my part as to the format of the minutes, the precise status and disposal of these 2017 motions is unclear to me. However, that is irrelevant as the Council draws attention to them merely to show that the issue of open space on the OLG Campus had been a political concern of Council members long before the Impugned Decisions were made.

• More generally, in light of these motions and of the history of development plans, it can be said in general terms that from planning policy and political points of view, the Council had o had a long-standing planning policy, going back to 1983, to ▪ protect the open space and open character of institutional lands generally and of the OLG Campus in particular ▪ require that if they were developed, both a minimum of 25% of the OLG Campus should remain in open space and that the open character of the OLG Campus be preserved, if needs be (it is clearly implied) by requiring open space in excess of the 25% minimum.

o Articulated concerns that the policy had proved ineffective.

o Sought to have the 25% requirement of open space in one area.

42 See Affidavit of Louise McGauran, sworn 28/11/22, §35 et seq. and exhibits thereto.

See Affidavit of Louise McGauran, sworn 28/11/22, §35 et seq. and exhibits thereto. Ms McGauran lists other motions but those described above

suffice for present purposes.

44 Motion 1b.

45 Motion 2.

Motion 7.

Colbeam v DLRCC [2025] IEHC 437

Date Event o already in view, the prospect of rezoning the Colbeam lands from residential to open space use.

• In my view, the subsequent actions and expressions of view by members in the development planmaking process must be viewed in, inter alia, this context.

10 May 2019 Durkan Estates sought SHD permission from the Board for houses and apartments on the Colbeam Lands.

Note: While SHD applications were made, under the 2016 Act,47 directly to and decided by the Board, that Act provided for input to the process before the Board by the Council Executive and its elected members, by way of report.

15 August 2019 The Board granted SHD permission to Durkan Estates.48

8 October 2019 Judicial review proceedings issued impugning that SHD permission - (“Redmond #1”).49

3 January 2020 The Council gave notice50 of its intention to review and replace its 2016 Plan and invited to 28 February submissions from the public before preparing a draft plan. Public consultation ensued.

2020 Submissions were made by, inter alia, Michael Redmond, the Roebuck Residents’ Association and XY.51

• XY submitted that:

“1. Lands Around Schools Need a Separate and Distinct Zoning Type a. Proper protection should be given to green spaces around schools. Currently, most schools in DLR are zoned “A”, for residential development. Some also have an "institutional” designation attached to this zoning, which is limiting in the protection it affords the land. Sometimes, this zoning is often ignored entirely, e.g.: OLG,52 Goatstown.

b. There should be no ambiguity around the extent of the council's responsibility to give protection to sold educational properties. It is the council's job to protect these lands for use by schools and local communities. Therefore, a distinct zoning type should be created that clarifies the position regarding development on land zoned institutional, particularly in light of the decision of an Bord Pleanála to grant permission for development on institutional zoned land at Our Lady's Grove.

c. The onus on planning should be on the council … Dublin City Council has a distinct zoning type for institutional land (Z15, Community & Institutional Lands)., DLR should follow suit.

• Mr Redmond’s submission was similar – that the INST Objective be made a specifically zoning objective to protect the schools and other community institutional

47 Planning and Development (Housing) and Residential Tenancies Act 2016 ABP-304420-19.

49 Redmond v An Bord Pleanála (Record no. 2019/709 JR).

50 In accordance with section 11(1) PDA 2000

51 XY, a member of the public, is anonymised as their identification is unnecessary to the judgment.

i.e. Our Lady’s Grove.

Colbeam v DLRCC [2025] IEHC 437

Date Event infrastructure and secure what he termed the INST requirement of “… Public Open Space 25%, School Expansion etc”.

• Roebuck Residents’ Association similarly sought strengthened and unambiguous protection of institutional and school lands. It said that religious orders are selling off land throughout the city and county. Many of these lands are effectively community assets that have been used by local communities for many decades. As to the OLG Campus, recent judicial review53 highlighted that the INST Objective lacked the weight of a zoning objective. Preserving green open spaces should be prioritised.

10 March 2020 JUDGMENT IN REDMOND #1 - 10 MARCH 202054 Simons J:

• Quashed the SHD permission55 which had issued to Durkan Estates to build on the Colbeam Lands as in material contravention of development plan policies and objectives applicable to institutional lands in respect of (i) housing density, and (ii)

public open space, as to which material contraventions the Board had not invoked its statutory power to grant planning permission despite such contravention.

• Held that the INST designation:

o Applied to the entire OLG Campus – not just to its northeast quadrant.

o Remained applicable to the Colbeam Lands despite their sale to Durkan Estates.

o Required as a “precise purpose … to ensure that the open character of the institutional lands is maintained.”

o Required a minimum open space provision of 25% of either (i) the total OLG Campus, or (ii) a population-based provision, whichever is the greater.

o Required that this open space provision must be sufficient to maintain the open character of the OLG Campus. (I observe that this implies that if greater than 25% provision of open space is required to maintain the open character of the lands, it is required).

• In determining that the INST designation applied to the Colbeam Lands, identified them as the ‘“open lands to the south-west” and observed that as the 2016 development plan expressly refers to the “open character” of the lands affected by the INST designation, “[i]t would be illogical to exclude open lands, which are the very thing to which the objectives and policies are directed, from the designation.”56

• Identified the Council’s position as correctly stated to the effect, inter alia, that:

53 Not cited by name but the reference seems to have been in Redmond #1 – albeit judgment was awaited when the RRA made its submission.

54 Redmond v An Bord Pleanála [2020] IEHC 151 (I have given some account of this judgment above).

55 ABP-304420-19.

Redmond §46.

Colbeam v DLRCC [2025] IEHC 437

Date Event “Heretofore, the planning permissions on site have developed the campus to a relatively high intensity, while the western and south-western portions of the campus have remained effectively greenfield, preserving the open nature of the campus, and maintaining the aggregate open space at above 25%.

It is only the subject application that has the potential to drop the open space across the campus to below the 25% mark. As such, it is at this point that the matter must be given serious consideration.

There has been no assessment of the public open space provision across the campus provided by the applicant, but it is evident from a cursory consideration of the proposed layout that a level of 25% would not be achieved. As such, the planning authority considers that the proposed development is contrary to the policies of the CDP, and should be refused on this basis.”57

• Durkan’s proposed SHD was in material contravention of the 25% open space requirement.58 Note: The judgment in Redmond #1 is consistent only with a view, on the evidence tendered in that case, that

• the minimum 25% open space requirement in respect of the OLG Campus had not already been satisfied on the OLG Campus lands other than the Colbeam Lands.

• SHD development of the Colbeam Lands had the potential to breach the requirements of a minimum of 25% open space on, and the preservation of the open character of, the OLG Campus.

24 April 2020 The CE reported to the members on the pre-draft consultation process.59 The report, inter alia:

• Noted that consideration of submissions as to rezoning particular lands was prohibited at this stage of the process.60 (I observe that the submissions had referred to the adoption of a new zoning objective for INST lands generally – though citing the OLG Campus as an example.)

• Recommended review of the INST Objective.

25 June 2020 The members, having considered the CE's Report on Pre-Draft Consultation, issued 15 strategic directions regarding the preparation of the draft development plan.61

• None referred specifically to the OLG Campus or the Colbeam Lands.

• One strategic direction requested that the CE enhance the Plan policies as to the protection of recreational and community spaces and infrastructure, including areas with an INST Objective.

57 §88

58 Redmond §90.

59 In accordance with section 11(4) PDA 2000.

§13.1.3 Institutional Lands (INST) Objective - citing s.10 PDA 2000. However it seems likely that the reference should have been to s.11(2)(b) PDA

2000 which limits the invitation to make submissions to submissions regarding objectives and policies to deliver an overall strategy for the proper

planning and sustainable development of the area and to s.11(4)(b)(ii) PDA 2000 which prohibits reference in the CE Report to any submission relating

to a request or proposal for zoning of particular land for any purpose.

In accordance with section 11(4)(d) PDA 2000.

Colbeam v DLRCC [2025] IEHC 437

Date Event

29 June 2020 Colbeam began pre-application consultation62 with the Board in contemplation of a proposed SHD planning permission application for student accommodation on the Colbeam Lands.

1 July 2020 Simons J, in Redmond #1, refused remittal of the quashed decision to reconsideration by the Board.63

2 July 2020 Order in Redmond #1. It quashed the SHD decision64 impugned in those proceedings.

23 October CE’S PROPOSED DRAFT DEVELOPMENT PLAN - OCTOBER 2020 2020 The CE submitted to the members a Proposed Draft Development Plan.65 It proposed, as to the Colbeam Lands, to:

• Remove the INST Objective from the OLG Campus.

• Apply to the northern “half” of the OLG Campus – essentially the schools, sports areas and yards - a new Zoning Objective "SNI". This was to protect, improve and encourage the provision of sustainable neighbourhood infrastructure.66

• Retain, as to the southern “half” of the OLG Campus, including the Colbeam Lands, the application of Objective "A" – to provide residential development and/or protect and improve residential amenity - which had applied under the 2016 Plan.

12 November At a Special Council Meeting, the members noted that they had considered the CE’s 2020 Proposed Draft Development Plan.

4 December Following pre-application consultation in respect of student accommodation on the 2020 Colbeam Lands, the Board determined67 that the SHD proposal required further consideration and amendment in order to constitute a reasonable basis for an application for strategic housing development. 15, 16, 17 & 18 The members met over 4 days – the meeting was adjourned from day to day -and December further considered, inter alia: 2020 • The CE’s Proposed Draft Development Plan.

• 135 motions submitted to amend it,68 including as to the Draft Development Plan’s treatment of the Colbeam Lands. Notes:

• Colbeam describes these Council meetings, and in particular the three motions concerning the OLG Campus, as “of critical importance in this case.”69

• The Council urges that appraisal of its members’ attention to those motions must be put realistically in the context of the great size of the task before this group of part-time public representatives.

62 ABP-307440-20.

63 Redmond v An Bord Pleanála ([2020] IEHC 322). He considered that Durkan’s failure in their planning application to recognise the material

contraventions was irreparable.

64 ABP-304420-19.

65 In accordance with section 11(5) PDA 2000. See Affidavit of Louise McGauran, sworn 28/11/22, §68 et seq. and exhibit LMCG1 Tab 26 & 27.

66 Table 13.1.1 Development Plan Zoning Objectives. Affidavit of Louise McGauran, sworn 28/11/22, §§73 & 74. Residential use is open for

consideration on lands zoned SNI. The SNI zoning objective included, in the event of redevelopment of such lands, an open space requirement of 20%

or, if the redevelopment was residential, 25%. However, there is, correctly, no suggestion that this requirement affects present legal concerns.

67 ABP-307440-20.

68 Affidavit of Louise McGauran, sworn 28/11/22, §76.

Transcript Day 1 p24.

Colbeam v DLRCC [2025] IEHC 437

Date Event

• It is important in understanding what follows to note that Development Plan Objective F – “To preserve and provide for open space with ancillary active recreational amenities” does not identify residential development on lands so zoned to be either permitted in principle or open consideration.70 Further, even where such land is developed and as relates to many types of development, not more than 40% of the land may be built upon.71 The Plan says that “Uses which are not indicated as ‘Permitted in Principle’ or ‘Open for Consideration’ will not be permitted.”72

• It is easy to see why residential developers such as Colbeam would consider Objective F zoning to be highly inimical to their legitimate commercial interests.

ADOPTION OF DRAFT DEVELOPMENT PLAN - DECEMBER 2020 & NOTES THEREON

15. Colbeam identifies the Council meeting of 15 - 18 December 2020 as crucial to its case – “the crucial event”. It specifically relies on a transcript of part of that meeting. Accordingly, a detailed account of the meeting is necessary.

Adoption of Draft Development Plan – 15 & 18 December 2020 At the meeting of 15 - 18 December 2020, the members adopted, against the CE’s advice, three motions by Councillors J. O’Leary and B. Saul, (##122,74 12375 & 12476) amending the Proposed Draft Plan as to the Colbeam Lands77 and adopting the Draft Plan accordingly. Their combined effect was to:

• Reinstate, on the relevant draft development plan map, the INST Objective label (the removal of which the CE’s Proposed Draft Plan had proposed) and relocate it from the north-east corner of the OLG Campus to "the centre of the site" and so to within the Colbeam Lands. This had been proposed by the members, inter alia, on the basis that relocating the label reflected the finding in Redmond #1 that the INST Objective applies to the entire OLG Campus.

• Rezone the Colbeam Lands from Objective "A" (residential) to Objective "F" (to preserve and provide for open space with ancillary active recreational amenities).

70 Development Plan 2022 – Table 13.1.9 - Permitted In Principle: Community Facility, Cultural Use, Open Space, Sports Facility, Travellers

Accommodation - Open For Consideration Allotments, Carpark, Cemetery, Craft Centre/Craft Shop, Childcare Service, Crematorium, Education,

Garden Centre/Plant Nursery, Golf Facility, Guest House, Place of Public Worship, Public Services, Tea Room/Café.

71 surface car parking counting as building.

72 §13.1.5.

73 Transcript Day 1 p58.

74 Motion: Councillor J. O'Leary. That this Planning Authority pursuant to Section 11 (5)(c) of the Planning and Development Act 2000 (as amended)

resolves to amend the Chief Executive's Draft Development Plan as follows: Retain the INST designation on the Our Lady's Grove site on Map 1 and

place it in the centre of the site per the attached map.

75 Motion: Councillor B. Saul. That this Planning Authority pursuant to Section 11 (5)(c) of the Planning and Development Act 2000 (as amended)

resolves to amend the Chief Executive's Draft Development Plan as follows: Map 1 Insert INST symbol in the centre of this site which is delineated by

the green border. (Map attached).

76 Motion: Councillor B. Saul. That this Planning Authority pursuant to Section 11 (5)(c) of the Planning and Development Act 2000 (as amended)

resolves to amend the Chief Executive's Draft Development Plan as follows: Map 1 Rezone the area highlighted in green to Open Space F. (Map

attached).

In exercise of the power conferred by s.11(5)(c) PDA 2000. A map accompanied each motion and is exhibited.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020 Table 13.1.9 of the Adopted Draft Plan described Zoning Objective F, ‘To preserve and provide for open space with ancillary active recreational amenities’, as follows:

• Permitted In Principle - Community Facilitya, Cultural Usea, Open Spacea, Sports Facilitya, Travellers Accommodationc.

• Open For Consideration Allotments, Carparka, Cemetery, Craft Centre/Craft Shopb, Childcare Serviceb, Crematoriuma, Educationa, Garden Centre/Plant Nurserya, Golf Facilitya, Guest Houseb, Place of Public Worshipa, Public Services, TeaRoom/Caféa.

• a: Where lands zoned F are to be developed then:

o Not more than 40% of the land in terms of the built form and surface car parking combined shall be developed upon.

o ….

o The owner shall enter into agreement with the Planning Authority pursuant to Section 47 of the Planning and Development Act 2000, as amended, or some alternative legally binding agreement restricting the further development of the remaining area (i.e. 60% of the site) which shall be set aside for publicly accessible passive open space or playing fields.

o Said space shall be provided and laid out in a manner designed to optimise public patronage of the residual open space and/or to protect existing sporting and recreational facilities which may be available for community use.

• b: In existing premises.

• c: In accordance with the approved Traveller Accommodation Programme 2019-2024 (or as amended). The members adopted a new text, changed from that in the 2016 Development Plan, describing the INST Objective as follows.78

• The requirement that open space provision in development must preserve the “open character” of the lands is maintained - as are the “principal aims” of redevelopment being “to achieve a sustainable amount of development while ensuring the essential setting of the lands and the integrity of the main buildings are retained.”

• Also maintained is the proviso that the quantified requirement of open space is a minimum – more may be required to preserve the “open character” of the lands.

• The main change relevant for present purposes is illustrated below. Essentially, whereas in the 2016 Plan, the 25% minimum could be satisfied by public or private open space, in the draft 2022 Plan the 25% minimum can be satisfied only by public open space.

Development Plan 2016 Plan Draft 2022 Plan – adopted December 2020 ‘A minimum open space provision of 25% of the total “A minimum of 25% of the entire INST land site area (or a population based provision in parcel, as determined by the Planning

78 Comparison is made somewhat more difficult in that, in both documents, the INST Objective is described twice and, internally to each document, the

descriptions differ slightly. See 2016 Plan §2.1.3.5 Policy RES5: Institutional Lands & §8.2.3.4(xi) & Draft 2022 Plan – adopted December 2020 - §4.3.1.4

Policy Objective PHP21: Development on Institutional Lands. Also §12.3.8.11 Institutional Lands.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020 accordance with Section 8.2.8.2 whichever is the Authority, will be required to be retained as greater) will be required on Institutional Lands.” accessible public open space.”79

‘A minimum public open space provision of 25%80 of the total site area will be required on Institutional Lands.81 Notes – General

• The statutory scheme for making a development plan is complex and iterative.

• It is convenient to refer to the draft plan proposed by the CE as the “Proposed Draft Plan” and the amended version on which the Council decided as the “Adopted Draft Plan”.

• The Adopted Draft Plan, is not, of course, the Development Plan - it is still a draft.

• The Adopted Draft Plan is put out to public consultation. Thereafter it can be amended in two broad ways. The first, minor amendments, we can ignore. However, if proposed amendments adopted by the members would amount to “Material Alterations” of the Adopted Draft Plan they must be put out to further public consultation and reconsideration by the members in making the development plan. Notes - Specific

• The events of this meeting and these motions were, it is fair to say, the primary focus of Colbeam’s criticisms of the Impugned Decision. This not least as the Council pleaded that its reasons for its decisions on this occasion subsisted to inform the Impugned Decision made in March 2022.

• I do not have the motion papers themselves and the papers before me do not suggest that the motion papers set out reasons or arguments in support of the motions.

• The minutes of this meeting do not record anything even allegedly objectionable. Colbeam’s fire is directed only at the transcript.

• The implications for the Colbeam Lands of the Approved Draft Development Plan and specifically of the combination of changes to the Zoning and to the INST Objective were that:

o As to the Colbeam Lands formerly zoned residential, by the Open Space zoning, ▪ residential development save traveller accommodation is neither permitted in principle nor open for consideration, and ▪ as to many types of development permitted in principle or open for consideration, 60% of the lands must be public open space.

o Whereas formerly the INST Objective required a minimum of 25% of the OLG Campus to be open space (private or public) now it will require a minimum of 25% of the OLG Campus to be public open space.

79 §4.3.1.4m, §8.2.3.4 (xi). Emphasis added.

80 §12.3.8.11 - This read “20%” in the draft plan. Thornton O’Connor observed (16/4/21 §5.2) that they thought this might be a typo and the Plan

ultimately made, at § 12.3.7.10, reinstated the figure of 25%. It reduces confusion to make the correction at this point.

Emphasis added.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020

• Colbeam’s subsequent comment that “It appears that there is now an attempt to completely modify the approach to Institutional landholdings so that they become publicly accessible spaces.”82 appears appreciably justified.

Transcript83 - 15 December 2020 as to Motions 122, 123 & 124

Motions 122 and 123

• Cllr O’Leary proposed Motion 122 and Cllr Saul proposed Motion 123. Both were to restore84 the INST Designation, supported by the amended text described above, to the entire OLG Campus. They were debated together. The Council Executive opposed both.

• Cllr O’Leary said that:

o The SNI designation has only been applied to half of the OLG Campus.

o The purpose of Motion 122 was to restore the INST designation protection of the whole of the OLG Campus first adopted in 2010 and “that exists in the current County Development Plan”.

o That purpose accorded with Redmond #1 - which had held that the INST Objective applied to the whole OLG Campus.

o The INST designation remained legitimate as, at the original time of designation, the OLG Campus was in institutional use and under policy PH P20 the Council's objective was to retain the open character, and/or recreational amenity85 of parcels in institutional use, “so that second part of the land is open in character so it meets the definition of INST.”

o There had been a “lot of development on” the OLG Campus and that “under the INST designation we were meant to receive 25% open space, and by virtue of the way this site has developed in parcels, the 25% was never delivered.”

o The intention of the motion is to put back the protections that exist under our current County Development Plan which was acknowledged in a High Court action,

• Cllr Saul:

o Presented a “Slide Show”86 of 4 aerial photos of the OLG Campus showing its development between May 2019 and December 2020 from what was, in his view “a fair amount of green grass retained”

before piecemeal development “starts to creep in on the south east of the site” and “spreading through the whole site” such that by 2020 there is a “very different picture from 2009”.

o Asserted that “what in effect we have is creep, bad planning and we haven't had protections of the 25%.”

o Once the land in the south-west corner – “the land subject to a planning application which was overturned” (clearly a reference to Redmond #1.) – “is built on, if it is, we have no 25%, we have very little grass left on a large scale urban site that we all understood … in our 25% designation and protection.”

Thornton O’Connor, 16/4/21 §5.2.

83 Exhibit SOC1.

84 As compared to the CE’s Proposed Draft Plan.

85 The transcript reads “immunity” but the correction is obvious.

Exhibit LMCG1 Tab 36.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020 o “The 25% shouldn't be 25% of the south west part of the site, it should be 25% of the full site which would equate to roughly the south west quadrant which is the next motion that I'm bringing. The reasons why is to restore institutional protection to the whole of the site, and to protect the lands for future use as open space.”

• The Executive disagreed with the motion – essentially for the reasons prefigured in the CE Report, including that the INST Objective is no longer warranted and the SNI zoning of the existing school areas suffices.

Motions 122 and 123 were passed without a vote.

Motion 124 Cllr Saul proposed Motion 124 to apply an open space zoning to the Colbeam Lands. it. The Council Executive opposed it.

Cllr Saul:

• Criticised the CE’s proposal of an SNI zoning of only the northern half of the OLG Campus as “regrettable … Because they are in effect not putting up a fight to protect the rest of it”.

• Suggested open space zoning of the Colbeam Lands because “there is a moral obligation on the Order, but also on the planning system because” “25% of the OLG Campus should be available to the local community”.

• Stated that:

o Unfortunately, daily, weekly and monthly, An Bord Pleanála are overturning our motions, Development Plans, SLOs,87 local area plans, all the written statements and “they are overturning a huge amount of it”.

o Fine Gael “are not surrendering the ability to protect that southwest quarter, which is 25% of the site”.

o The Board do not and cannot overturn zonings.

o So the only way for us to secure this (is to zone the Colbeam lands as open space).88 o You have seen the diagrams and the slides. The planning has not worked.

o We owe it to the schools, the kids in the schools and the kids and families in wider areas to try and secure and do our very best to fight for at least the 25% on the total site.

Cllr O’Leary supported Motion 124, saying:

• The purpose of the INST designation originally was to secure 25% of the site for open space.

• The developer in its planning applications didn't respect that, and it required a High Court judgment to ensure that 25% would be delivered.

• Unfortunately, when it goes back to the Board, we have no guarantee that they will respect the INST designation. The only thing they will respect is the zoning. As a result of dysfunctional planning legislation, we are left with a situation of having to rezone land because the Board will not uphold our Development Plan.

87 Specific local objectives of a development plan.

This was not explicitly said but is the very clear sense of what was said.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020

The Executive, in terms prefigured in the CE Report:

• disagreed with the motion “as the lands question do not function as an area of public open space and are not publicly accessible”; and

• confirmed that the members are “fully entitled to rezone” at this stage of the plan-making process.

The chair then called on Cllr Saul to “read into the record the reason” for Motion 124. Cllr Saul replied:

“Once again it is pretty similar89 - To restore an open space provision through a zoning change in order to safeguard open space for the school use but also for the wider community.”

Cllr Saul spoke again:

• Essentially he repeated his complaint at the Board’s approach, such that “to try and protect our open space”, “the only way we can safeguard this is through zoning” and “it is our right to rezone.”

• He said the Council “should at least try to fight for the protection of open space land, and I know the Manager said it’s not currently in use. The reason why it is not currently is use is because it was sold, and the Order and owners of the land did not protect, and did uphold the designation and they sold it …”.

Motion 124 as to rezoning was overwhelmingly passed - by 27 votes to 4 with 1 abstention.

The Council’s Senior Planner deposes90 that “Although the Chief Executive disagreed with Motion 124 on the grounds that the lands do not currently function as an area of public open space, the reason given in Motion 124 is considered to be a plausible reason in accordance with proper planning and sustainable development. As set out above the ‘F’ land use zoning does, in other cases in the County, apply to privately owned lands.”

Minutes - 18 December 2020.

As later adopted, these record

• The passing of Motions 122, 123 & 124.

• As reasons for Motions 122 and 123, that:

o “The purpose of the motion is to restore the protections provided on the whole of this site by the INST designation first adopted under the 2010 - 2016 CDP;

o The motion accords with the High Court Finding in Redmond v ABP, that the INST designation applies to the whole of the site; and o The INST designation continues to be a legitimate designation in that at the original time of designation the site was in institutional use and under Policy PHP20 the Council's objective is to retain the open character and/or recreational amenity of land parcels in institutional use.”

o “To restore institutional protection to the whole of the site and to protect the lands for future use as open space.”

89 I take the word “similar” to refer to the reasons for motions 122 and 123.

Affidavit of Louise McGauran, sworn 28/11/2022, §96.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020

• As the reason for Motion 124 (the rezoning motion) - “To restore an open space provision through a zoning change in order to safeguard open space for the school use but also for the wider community.”

• That Motions 122 and 123 were “agreed” – which I take to mean agreed without the need for a vote and that Motion 124 was carried by 27 votes to 4 with 1 abstention.

Notes #1

i. Colbeam had not made a submission in the plan-making process by this time – I infer (though the reason does not matter for present purposes) as they agreed with the CE’s proposed Draft Plan.

ii. No-one argues, as a general proposition, that private lands, even private lands not publicly accessible, may not be zoned Objective ‘F’ for open space. Private open space can be zoned for open space even if there's never any prospect of it becoming public open space. See Christian.91 The Council observes that private lands such as clubs and golf courses are so zoned and gives an example of other lands so zoned.92

iii. It does not seem to be disputed that, while the CE’s opposition to Motion 124 on the basis that the Colbeam lands “do not function as an area of public open space and are not publicly accessible” represented a legitimate (in the view of some, compelling) planning judgement that they should not be zoned for open space, and the members were bound to have regard to that view, thereafter they were free to disagree. It did not represent a legal impediment to such zoning.

iv. It has not been suggested that the images in Cllr Saul’s slide show were particularly complex, inaccurate, misleading or inadequate to give the members a reasonable overall appreciation of the condition of, and development on, the OLG Campus over time.

v. I accept Colbeam’s submission93 that Cllr Saul’s logic was that the entire of the Colbeam Lands should be open space – “should be 25% of the full site which would equate to roughly the south west quadrant”. Counsel for the Council essentially agreed that the members desired a single large open space rather than open space dissipated around the OLG Campus.94 Indeed, the members had resolved explicitly to that effect about 3½ years earlier in July 2017, so it cannot be thought a surprise that they would take that view in making the next development plan.

vi. While others, including Colbeam and the Executive, might vehemently and reasonably disagree with that that logic and desire, it does not appear to me to be, of itself, a legally objectionable view of the proper planning and sustainable development of the area. As I observed at the hearing – one can get too fixated on the 25%, which is an artifact of the INST designation in the 2016 plan.95 It is also a minimum - subservient to the overall objective of preservation of open

Christian v Dublin City Council [2012] 2 IR 506 §91.

92 Affidavit of Louise McGauran, sworn 28/11/22, §95 & exhibit LMCG1 Tab 39.

93 Transcript Day 1 p74.

94 Transcript Day 2 p14 & 15.

Transcript Day 2 p15.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020 character. And in any event, as to merit and short of irrationality and as long as they ignored irrelevancies, the members, in adopting a new Development Plan, were at large as to the view they formed of the proper planning and development of the Colbeam Lands.

vii. While no doubt they vehemently disagreed as a matter of planning judgement, Colbeam did not argue that the reasons offered specifically for Motions 122 and 123, in either the transcript or the minutes, invoked irrelevant considerations or were otherwise unlawful. I accept the Council’s submission96 that Cllr O’Leary’s explicit purpose in proposing Motion 122 was clearly a proper planning purpose – as were the reasons he gave. Similarly, Cllr Saul’s “reasons why” as to Motion

123 is a proper planning purpose “to restore institutional protection to the whole of the site, and to protect the lands for future use as open space.”97 So too the reasons he gave, when asked to record them, for Motion 124 as to zoning: “to restore an open space provision through a zoning change in order to safeguard open space for the school use but also for the wider community."

viii. The outcome of Motions 122, 123 and 124, carried through to the Development Plan once made.

The INST Objective applies and most of the Colbeam Lands are zoned Objective ‘F’ - “To preserve and provide for open space with ancillary active recreational amenities”.

ix. Both sides agree that the reasons for the decisions on the three motions continued to inform the Impugned Decision when the Development Plan was made in March 2022.

Notes #2

x. Colbeam are highly critical, as the invocation of irrelevant considerations, of the references in the transcript to:

o “moral obligation”;

o The assertion that “the reason why it is not currently is use is because it was sold, and the Order and owners of the land did not protect, and did uphold the designation and they sold it”; and o The Board’s approach to planning applications;

xi. In my view:

o The members’ contributions as to all 3 motions fall to be considered as a whole. To put it another way, each contribution must be interpreted in the context of the others.

o The issue of “moral obligation” is an irrelevant consideration as it is not a planning matter.

o The reference to the Order’s and owners’ failure to protect the land and its sale is to be understood in the context of the fact that ▪ On the land’s sale to developers the obvious inference was that they wanted to develop it.

▪ Durkan had argued in Redmond, of which argument the members may be presumed to have been generally aware, that as Durkan owned the Colbeam Lands by the time it made its SHD planning

96 Transcript Day 1 p133.

Transcript Day 1 p137.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020 application and as the lands were no longer available for institutional use, the INST designation no longer applied.98 By Durkan’s position, Simons J had been put to its rejection, saying:

“On the developer's argument, the elaborate provision made under the development plan for regulating a change from an established institutional use to residential use would be set at naught. The development plan objectives could be by-passed by the simple expedient of a transfer of ownership. Lands which were subject to institutional use at the time the development plan was made, and for which planning permission could only be obtained by reference to the relevant development plan objectives, would be released from these requirements by the stroke of a pen on a contract for sale. On this interpretation, the only effect of the development plan would be to regulate the development of the lands for so long as they remained in the ownership of the religious congregation. … such an interpretation would make an absurdity of the development plan. … as of the date of the adoption of the development plan, the lands had an established institutional use. This established use and designation is not lost by dint of a transfer of ownership.”

xii. I am of the view, in particular, that the assertion that the INST Objective had not, as to the OLG Campus, delivered on its 25% Open Space Minimum target, though, it seems, incorrect, must be viewed:

o As, if an error, an error of fact. Material error of fact is not pleaded.

o In the context that, strikingly, neither Colbeam, the Council Executive nor anyone else had asserted that the INST Objective had, as to the OLG Campus, already delivered on its 25% open space minimum target.99 Nor is it apparent that, either on the information they had before them or in the context of the much wider and demanding task of development plan review on which the members were engaged, there is any reality to a view that they could, much less should, have engaged themselves in the forensic analysis of space allocation on the OLG Campus (which, as far as is known, no-one else had done, including those interested in the OLG Campus) and discerned that the OLG Campus had already delivered on its 25% open space minimum target.

o As based on an impressionistic visual appreciation of the “Saul Slide Show” which depicted the changing state of development of and open space provision on the OLG Campus between 2009 and 2020. Again, any misconstruction based on those slides was an error of fact within the scope of legitimate judgement.

o As informed by the analysis in Redmond #1 – which had proceeded on the basis that SHD development of the Colbeam Lands imperilled the 25% Open space target for the OLG Campus.

o As informed by the more general concept of “open character” – which Simons J had elucidated in Redmond #1, to which Cllr O’Leary had referred and to which the minutes refer. In that context, it seems reasonable to infer that the members, against the backdrop of a layout in 2009 which was characterised by large blocks of open space,100 envisaged a single identifiable block of open space or perhaps a small number of such blocks rather than what one might, without disparagement, call “penny packets” of open space distributed around the OLG Campus.

Redmond v An Bord Pleanála [2020] IEHC 151 §51 et seq.

99 I return to this issue below as it relates to documents Colbeam sent to the Council in July 2024.

See Councillor Saul’s slides of 18 December 2020 – photo of May 2009.

Colbeam v DLRCC [2025] IEHC 437

Adoption of Draft Development Plan – 15 & 18 December 2020 o As based on a broad view that:

▪ roughly three quarters of the OLG Campus was occupied by the schools (including the hockey pitch), the convent and the Grove residential development, and ▪ the remaining “quarter” (25%) of the OLG Campus and the remaining obvious block of open space consisted of the Colbeam lands.

o As at least understandable in the foregoing light – and in the general light of the judgment in Redmond #1.

xiii. For the avoidance of doubt, I do not purport to share the members’ views as I have characterised them above. That is not a matter for me. My purpose is, rather, to demonstrate that, even if in error as to the fact of achievement of the 25% minimum, on the evidence before the members their view was not unreasonable and Colbeam had not clarified the point.

11 January ADOPTED DRAFT DEVELOPMENT PLAN - PUBLISHED 11 JANUARY 2021101 2021 Zoning Map 1 proposed to apply the INST Objective to the entire OLG Campus and to zone:

• The northern half (the schools) “SNI” (Sustainable Neighbourhood Infrastructure).102

• The south-eastern quadrant (“The Grove” and the convent) “A” (Residential). 103

• The south-western quadrant (the Colbeam Lands) “F” (Open Space). 104

• The northern part of the Colbeam Lands, SNI.105

Figure 1 – Adopted Draft Plan Zoning Map Extract106

Date Event to 16 April The Adopted Draft Plan was put on public display for public consultation.

2021

101 Affidavit of Louise McGauran, sworn 28/11/22, §97 & exhibit LMCG1 Tab 26.

Grey on figure below.

103 Yellow on figure below.

104 Green on figure below.

105 But I propose to ignore that for present purposes as the real issue is the open space zoning.

Extract from KPMG report October 2021 - Figure 4-2: - Draft Development Plan 2022-2028 zoning map with Colbeam Lands bound in red.

Colbeam v DLRCC [2025] IEHC 437

Date Event February Thornton O'Connor107 Report for Colbeam - Student Accommodation SHD - February 2021 2021 It

• Noted the content of the Adopted Draft Plan, the effect of Motions 122, 123 and 124,108 and the Executive’s opposition thereto, appended a transcript of their adoption109 and stated Colbeam’s intention to make submissions thereon to the effect that the Colbeam Lands are unsuited to open space zoning (inter alia as backlands with poor passive surveillance) and are suited to high-density residential development.110

• Noted the content of the judgment of Simons J of 10 March 2020 in Redmond #1.111

• Argued (as it was entitled to do) that the sale of the Colbeam Lands by the Order implied that the lands were no longer required for 'institutional' use. It enclosed letters from the schools to that effect.112

• Asserted that the open space proposed in the student accommodation SHD (52% of the Colbeam Lands) would result in a quantum of 48% open space across the overall OLG Campus and by Figure 6.6 illustrated and quantified that provision.113

12 Colbeam applied to the Commission for permission for an SHD comprising 698 bed-space February student accommodation on the Colbeam Lands.114 The application included the Thornton 2021 O'Connor Report of February 2021.

14 April Roebuck Residents’ Association submission to the Council115 as to the Adopted Draft Plan. 2021 It

• Agreed with the retention of the INST Objective on the entire OLG Campus, the SNI Zoning of the school areas and the open space zoning of the Colbeam Lands.

• Opposed the removal of tree protection from the Colbeam Lands.

• Asserted that the schools are substantially substandard as to site size, and the local community welcome the potential future addition of extra recreational space.

16 April Our Lady’s Grove Primary School Parents Association submission to the Council116 as to the 2021 Adopted Draft Plan.

• As relevant, it repeats the Roebuck Residents’ submission – including supporting the retention of the INST Objective on the entire OLG Campus and the open space zoning of the Colbeam Lands.

Note: The position of the parents’ association is contrary to that of the primary school board of management which supported the residential zoning of the Colbeam Lands.117

107 Planning Consultants.

108 Figure 7.4.

109 Appendix A.

110 §7.3.1.

111 §3.1.1.

112 §7.3.2., Figure 7.5, Figure 7.6. Figure 7.7.

113 See Thornton O’Connor SHD Planning report February 2021 §6.6. Figure 6.6: Open Space Provision within the Site and within the wider Institutional

Landholding. Table 6.7 Key Site Statistics. §6.6. reads in part “In the wider context of the entire lands designated 'institutional', which measure

approximately 60,264 sq. m/ if the subject scheme is granted permission there will be a total of 29,135 sq. m open space across the institutional

landholding, which equates to 48% of the overall lands at The Grove subject to the INST designation (60,264 sq. m).

ABP-309430-21.

115 B0529 - Affidavit of Louise McGauran, sworn 28/11/22, §102 & exhibit LMCG1 Tab 43.

116 B1134 - Affidavit of Louise McGauran, sworn 28/11/22, §102 & exhibit LMCG1 Tab 47.

117 The Department of Education made a submission to the Council - B1066 - Affidavit of Louise McGauran, sworn 28/11/22, §102 & exhibit LMCG1 Tab

46 – but said nothing here relevant.

Colbeam v DLRCC [2025] IEHC 437

Date Event COLBEAM (THORNTON O'CONNOR) SUBMISSION TO COUNCIL AS TO ADOPTED DRAFT PLAN - 16 APRIL 2021118

• Its “key purpose” was “to oppose the proposed rezoning of the vast tracts of the subject lands from ‘Objective A’ (Residential) to ‘Objective F’ (Open Space) and ‘Objective SNI’ (Sustainable Neighbourhood Infrastructure)”. The submission also addresses changes proposed to the INST Objective and an objective relating to the preservation of trees and woodland on the Colbeam Lands.119

• It enclosed120 letters from both schools confirming that they did not require the Colbeam Lands for expansion/development and supporting Colbeam’s development proposals.

• It asserted that Colbeam had a “legitimate expectation” of a residential permission on the Colbeam Lands – in part as the Council had, “prior to our clients’ acquisition of the site, confirmed” its suitability for residential development. By its 2019 SHD decision, the Board opined likewise. So it is irrational to zone it ‘open space’.121

• It repeated some of the content of Thornton O'Connor’s SHD report of February 2021.122

• It asserted that the Colbeam Lands are inaccessible to the public. Open space zoning will disincentivise development of this privately owned land and, hence, public access.123 Only development can provide public open space. The student accommodation SHD proposal provides public access to 37.5% of the Colbeam Lands - 7,956m2 of public open space.

• It asserted that the rezoning would be “insidious” as it will “fossilize privilege” “for the benefit of the established residents in a privileged area” and hamper social equality “thus, continuing the cycle” “of embedded privilege” whereas affordable student accommodation near UCD and other colleges will afford “opportunity to those who do not live in South County Dublin”.124

• It describes the pending student accommodation SHD application and asserts that the Council, in its statutory CE pre-application report of 10 August 2020 to the Commission in that application, had confirmed that the site “is an acceptable location for purpose built student accommodation’ and ‘The planning authority generally welcomed the proposals to develop the subject site, currently vacant’.

• It critiques the adoption of Motions 122, 123 and 124:125

118 B0906 - Affidavit of Louise McGauran, sworn 28/11/22, §102 & exhibit LMCG1 Tab 45.

119 §1.1.

120 Appendices A & B.

§1.2 Executive Summary / ‘Roadmap’ of This Submission.

122 Including the Schools’ supportive letters and the transcript of the hearing at which the three motions had been adopted.

123 §1.2 Executive Summary / ‘Roadmap’ §§7.1 & 7.6.

124 §1.2 Executive Summary / ‘Roadmap’ §7.3.

§6.

Colbeam v DLRCC [2025] IEHC 437

Date Event o Again emphasising the “different ownerships” of parts of the OLG Campus.

o Opining that the public open space required on the entire ‘INST’ lands should be a cumulation of usable spaces across the lands as opposed to a single block of open space and that the 2016 Plan and the Draft Plan did not require a single block.

o Arguing that quality public open space on the Colbeam Lands would better be integrated in residential development.

o Alleging that a clear and transparent discussion of the merits of residential use of the lands was not provided to allow informed decision making.126 o Citing and agreeing with the executive’s opposition to the motions.127 Durkan Estates, submission128 as to the Adopted Draft Plan.

• I understand it is in terms similar to Colbeam’s.129 Notes on the Thornton O’Connor Reports of 12 February 2021 and 16 April 2021.

• First, and importantly, the Thornton O’Connor Submission of 16 April 2021 to the Council on the Draft Plan did not enclose the Thornton O’Connor SHD Report of 12 February 2021 to the Board.

• While, in light of the schools’ letters, Colbeam was entitled to argue that the sale of the Colbeam Lands implied that they were no longer required for 'institutional' use in the precise sense of that word, that argument did not address the fact that though sold, as Simons J makes clear in Redmond #1 and as is in any event clear, the Colbeam Lands still had to be considered as part of the entire original OLG Campus for purposes of satisfaction of INST Objective requirements as to open space and open character as they related to institutional lands. In other words, they failed to face up to Redmond #1.

• The assertion is technically correct that the planning authority had, by its report of 10 August 2020 to the Commission confirmed that the site “is an acceptable location for purpose built student accommodation” and “The planning authority generally welcomed the proposals to develop the subject site, currently vacant’. But it can only be properly understood in context as the view of the Executive, with which the great majority of the members disagreed.

• Though it might have, and for reasons not clear to me, Colbeam did not:

o In either report argue that the 25% open space and open character requirements of the 2016 INST Objective, as they related to the overall OLG Campus, had already been satisfied in the other three quadrants.

o Repeat in the report of 16 April 2021 to the Council the assertion in their report to the Board of 12 February 2021 that the open space proposed in the student accommodation SHD would result in a quantum of 48% open space across the overall OLG Campus or repeat Figure 6.6 of the Thornton O’Connor report to the Board of 12 February 2021 in the SHD application illustrating that proposition.

126 §8.

127 §6.1.

128 B0785.

I have availed of Colbeam’s absolution of my considering it. Transcript Day 1 p32.

Colbeam v DLRCC [2025] IEHC 437

Date Event

3 June The Commission, in accordance with its Inspector’s report of 13 May 2021, granted Colbeam 2021 permission for a student accommodation SHD on the Colbeam Lands.130 July 2021 CE REPORT TO ELECTED MEMBERS ON DRAFT PLAN CONSULTATION - JULY 2021131

• Volume 1132 of the report exceeded 900 pages, Volume 2 approached 500 pages. It considered:

o 1,263 submissions. As it happens, over 70% more than were received at the same stage in preparing the 2016 Plan;133 and o substantial submissions from the OPR,134 the NTA135 and the EMRA.136

• The report recorded137 that differing views and requests were made in submissions as to the OLG Campus. In Volume 1, the CE summarised, inter alia, Colbeam’s submissions.138 In Volume 2, it set out Colbeam’s submissions in considerable detail.139 The submissions recorded included those favouring zoning the Colbeam Lands for open space and also included,140 as emanating from Colbeam, submissions:

o Favouring zoning the Colbeam Lands for residential use;

o Citing the “detailed planning history of the site, including the recently quashed decision and the current application for student accommodation.” – including acceptance of the acceptability of SHD development;

o Asserting that the lands are not accessible to the public;

o Requesting removal of INST symbol – inter alia as ▪ the Order no longer owns the Colbeam Lands, and ▪ the schools confirm they do not require the lands for their future use;141 o Opposing the modifications to the INST Objective to require the open space to be specifically 'public open space' - "noting that whilst many institutional landholdings have the benefit of significant bodies of open space, these spaces are rarely accessible to the public”;

o Submitting that the INST Objective does not require that public open space provision be in the form of a single tract of land;

o Submitting that if the zoning is for open space, the lands will not be redeveloped (i.e.

even as open space);

o Appending the transcript of the Council meeting of 15 December 2020.

• The CE set out an extensive response.142 It agreed with Colbeam. The response:

130 ABP-309430-21.

131 In accordance with section 12(4) PDA 2000 - Affidavit of Louise McGauran, sworn 28/11/22, §100 & exhibit LMCG1 Tabs 41 & 42.

132 Issues Raised and Chief Executive's Response & Recommendations.

133 §1.1.

134 Office of the Planning Regulator.

135 National Transport Authority.

136 Eastern and Midlands Regional Authority.

137 Vol 1 p821 et seq.

B0906.

139 Vol 2 p290 – 292.

140 This is not a complete list.

141 Appending the schools’ letters supportive of Colbeam.

Vol 1 p821 et seq.

Colbeam v DLRCC [2025] IEHC 437

Date Event o Explained the SNI zoning and the rationale for its application to the northern (school)

part of the OLG Campus and advising that the INST Objective is no longer warranted.

o Observed that:

▪ The lands zoned ‘F’ in the Adopted Draft Plan (most of the Colbeam Lands143) do not currently function as public open space.

▪ Objective ‘F’ generally denotes lands in active use as publicly accessible open / recreation space - though it “does also cover private facilities.”

o Advised that since putting the Adopted Draft Plan on display, the Board had granted SHD permission on the Colbeam Lands144 - including retention of part of the existing afterschool. That SHD permission provides for open/amenity space on the Colbeam Lands. In that respect, the CE states:

“The approved scheme includes the retention of part of the existing afterschool facility.

In addition, as set out on Page 55 of a supporting Planning Report by Thornton O'Connor Town Planning, 'Figure 6.6: Image Showing the Proposed Open Space Provision of the Subject Scheme (within the Redline) and the Open Space within the Wider Institutional Landholding' and an approved amenity space plan, provides for an amenity space area with a stated area of 280sq.m. to serve the existing, retained afterschool facility.”

• The CE recommended amending the Adopted Draft Plan, as to the OLG Campus, as follows:

o a) Omit the INST Objective.

o b) Zone the northern half,145 around the schools, Objective "SNI" – "To protect, improve and encourage the provision of sustainable neighbourhood infrastructure."

o c) Zone the remainder Objective "A" – "To provide residential development and improve residential amenity while protecting the existing residential amenities."

o d) Reinstate the tree symbol in the southwest corner.

Notes:

• Colbeam has not impugned this CE’s Report as inadequate.146

• The Council argues that the CE’s Report, its members’ consideration of it and their consideration of any particular submission or any particular lands must be contextualised in the “real world” – in terms of the great burden on part-time councillors of the overall development plan-making task in hand.

• The Council notes that to this point Colbeam had not argued that the INST requirement of 25% minimum open space had been satisfied already on the Campus lands other than the Colbeam Lands.

• I would add that, as had been seen, in March 2000 Simons J had said, in the context of a comprehensive approach to satisfaction of the INST Objective across the OLG Campus that:

A northern part of the Colbeam Lands was in the SNI area.

144 On 3/6/2021, for student accommodation, ABP3094302.

145 Roughly speaking and adjusted to reflect the then-recent reorientation of the hockey pitch in the northeast corner of the campus. The

recommendation was that the space vacated, as it were, by the hockey pitch in the northern part of the Colbeam lands would be zoned residential.

See e.g. Transcript Day 1 p36.

Colbeam v DLRCC [2025] IEHC 437

Date Event o “… the planning permissions on site have developed the campus to a relatively high intensity, while the western and south-western portions of the campus have remained effectively greenfield, preserving the open nature of the campus, and maintaining the aggregate open space at above 25%.”

o “There has been no assessment of the public open space provision across the campus provided by the applicant, but it is evident from a cursory consideration of the proposed layout that a level of 25% would not be achieved.”

• As relevant to the Colbeam Lands, the net effect of the CE’s proposals would have been to:

o Revert to the CE’s Proposed Draft Plan and undo the effect of the members’ adoption of motions ## 122, 123 & 124.

o Zone them for residential development rather than open space.

o Disapply the INST Objective.

14 & 26 Judicial Review proceedings (“Redmond #2”147 and “Jennings” 148) issued challenging the July 2021 validity of the Board's SHD student accommodation decision.149

COUNCIL DECISION TO NOT AMEND DRAFT PLAN (MATERIAL ALTERATIONS) – SEPTEMBER/OCTOBER 2021

Date Event September/ The elected members, at a series of multiple special meetings, considered:

October 2021 • The Draft Plan.

• The CE's Report of July 2021 on the Draft Plan consultation.

• An additional presentation by the executive on the CE's Report as to zoning.150

• The CE’s digital web map of her recommended zoning changes – including those as to the OLG Campus, including the Colbeam Lands.151 Remembering that lands coloured yellow are to be zoned residential, it makes clear beyond peradventure the CE’s recommendation that the Colbeam Lands be so zoned.

Redmond v An Bord Pleanála (2021/664 JR) - struck out on consent on 18 November 2021.

148 Jennings and O'Connor v An Bord Pleanála (2021/750 JR).

149 ABP-309430-21.

150 Affidavit of Louise McGauran, sworn 28/11/22, §109 & exhibit LMCG1 Tab 48.

Affidavit of Louise McGauran, sworn 28/11/22, §111 & exhibit LMCG1 Tab 49.

Colbeam v DLRCC [2025] IEHC 437

Date Event

Figure 2 – CE’s Digital Web Map - 2 September 2021 - extract Note: The additional presentation does not refer to issues as to zoning particular lands152 but does serve to briefly but strikingly convey the complexity and scope of the task before the elected members - the plethora of interests, opinions, submissions, documents, issues, legal considerations and planning considerations requiring their consideration.

October 2021 ‘KPMG report’ for Colbeam – ‘Public Open Space & Amenity Provision Assessment’.

It stated, specifically with respect to the proposed student accommodation SHD, and noting the open space zoning in the Adopted Draft Development Plan:

• A quantified conclusion that existing public open space & amenity provision in the study area – a 2km radius of the Colbeam Lands153 - was such that its provision on the Colbeam Lands was not required against a national standard of 2 – 2.5 hectares per 1,000 people.154

• That the study area contained 245.1 ha of open space - broken down as to golf course 50.3; pitch 29.5; playground 0.3; sports centre 7.5; remaining open space 157.5.

• That the Colbeam Lands now provide no public open space or community amenity.

• That the proposed student accommodation SHD will supply 7,956m2 of public open space – 37.5% of the Colbeam Lands.

11 & 12 Colbeam informally circulated the KPMG Report to the members.155 October 2021 Notes:

• The KPMG Report of October not submitted in the formal consultation process – which had long-since ended. So it did not feature in the CE Report of July 2021 on consultations as to the Adopted Draft Development Plan. Rather it was added, unofficially as it were, to the members’ pile of over 1,200 submissions a few days before they met to consider whether to amend the Draft Development Plan.

• However, lobbying elected members is a commonplace and the development plan-making process is, inter alia, political. The Council accepted that I should regard the KPMG Report as known to the

152 Save one very brief reference by way of example of the high number of submissions received on individual zoning issues (p120).

153 This is a circle of area 1,257 hectares or 3,106 acres. Figures are also calculated for a 1km radius.

154 §4.1 - Sustainable Residential Developments in Urban Areas- Guidelines for Planning Authorities (2009).

Affidavit of David Cox, sworn 19/4/23, §18.

Colbeam v DLRCC [2025] IEHC 437

Date Event members from October 2021. I think, without deciding, that the Council was correct to take that position. I will leave to a case in which the issue is disputed any determination in that regard.

• A 2km radius is a circular area of 1,257 hectares or 3,106 acres156 – of which 245.1 hectares of open space is 19.5%.157 KPMG asserts that this provision already significantly exceeds Guideline158 requirements.

• I assume it tenable to suggest the open space provision in that area and on the Colbeam Lands adequate on a population-based and overall area-based calculation and that such information is potentially relevant to the decision before the members as to zoning the Colbeam lands.

• The content of the KPMG Report was relevant. However, against an historic determination in the 2016 Development Plan as to specifically institutional lands to which the INST determination applied, including the OLG Campus, that they should be maintained as to 25% open space, or more if required to preserve their open character, it cannot be said that the KPMG Report was, in this respect, inevitably weighty, much less conclusive. As a matter of planning judgement, it is one thing to set a target for what you want: it is quite another to suggest that you must, or even should, accept the loss of open space you already have or forego an opportunity of open space which presents itself at a particular location – even if in excess of wider area-based quantitative guidelines. I make no such judgement. But, ceteris paribus, the members were entitled to.

• I should add that the KPMG Report did assert that the proposed student accommodation SHD will supply 7,956m2 of public open space – 37.5% of the Colbeam Lands – and did so by reference to an excerpt from Figure 6.6 of the Thornton O’Connor SHD Report of February 2021. But it did not state or enable a calculation of the extent to which o open space had already been provided in the OLG Campus other than the Colbeam Lands or that the 25% minimum had already been met thereon.

o the OLG Campus would consist of open space were the Student Accommodation SHD built.

I will return in due course to the legal significance of what might be called the extra-procedural circulation of the KPMG Report.

Council Decision to Not Amend Draft Plan – October 2021

Date Event 12, 13, 14, 18, 19, 20 The members met to consider 338 motions to amend the Draft Plan159 and also a and 21 October 2021 large number of recommendations by the CE in the Report of July 2021.

156 For a general sense of the size of the Study area see KPMG Figure 2-1: Open space within 2km study area.

157 245/1,257 x 100 = 19.5%.

158 Sustainable Residential Developments in Urban Areas-Guidelines for Planning Authorities (2009).

Affidavit of Louise McGauran, sworn 28/11/22, §112.

Colbeam v DLRCC [2025] IEHC 437

Date Event

• Procedurally, proposals to amend the Draft Plan came before the Members in two ways: members’ motions and the recommendations in the CE Report of July 2021.

• No motions were submitted as to OLG Campus – or the Colbeam Lands.

• The members discussed and rejected the CE Recommendations as to the Colbeam Lands.

Notes:

• The procedure at and from this point was governed by S.12 PDA 2000 and its subsections as follows o (11) restricted the members, in making the development plan, to considering the proper planning and sustainable development of the area to which the development plan relates, the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or any Minister of the Government.

o (6) empowered the members to accept or amend the draft plan and make the development plan accordingly.

o (7) required deferral of making the development plan and a further round of public consultation160 if any amendment amounted to a “material alteration” of the draft.

o (10) empowered the members, after the consultation on the material alterations, to make the plan with or without them. It might amend the material alterations but only in a minor way and not so as to increase the area of land zoned for any purpose.

• This series of meetings in October 2021 was to consider amending the Adopted Draft Plan and, in effect, to start the further process of public consultation required as to such of those amendments as would constitute material alterations of the Adopted Draft Plan. In that sense, the material alterations adopted in this process can at this point be thought of as proposed material alterations to be reconsidered after such public consultation.

• Ceteris paribus (which I accept is unlikely and so it is a very crude metric) it is at least in some degree illustrative of the burden on the elected members that they had an average of 48 motions to decide per meeting.161 In addition the members had to consider the many CE Recommendations – though no doubt, as to subject matter, many overlapped with motions.

• In practical terms, and as the transcript excerpt to hand illustrates, it seems that the meetings in large part proceeded by explicitly using the CE Report of July 2021, its record of submissions made by interested parties and its recommendations as, more or less, agenda items. It is inescapable that the contents of the CE Report formed a focus, likely the primary focus, of the members’ considerations.

That includes its account of the Thornton O’Connor submissions of April 2021.

• The members in this process could have, but did not, propose a material alteration of the Adopted Draft Plan to zone the Colbeam Lands for residential use.

160 And possibly strategic environmental assessment and/or or an appropriate assessment - though that did not arise in this case.

338 motions / 7 meetings.

Colbeam v DLRCC [2025] IEHC 437

Council Decision Not to Amend the Draft Plan – 21 October 2021 The members met in Special Meeting on 21 October 2021 and, as here relevant,

• Inserted in Zoning Map 1, a tree protection symbol on the Colbeam Lands.162

• By a substantial majority163 rejected the CE’s other recommendations as to the Colbeam Lands – thereby affirming the open space zoning of the Colbeam Lands as in the Adopted Draft Plan.

• Adopted the Development Plan subject to:

o Amendments including proposed Material Alterations to the Draft Plan.

o Public consultation as to proposed Material Alterations.

Transcript - 21 October 2021164

• The Council Executive:

o Recommended zoning the Colbeam Lands for residential use and removal of the INST objective.

o Confirmed that the existing planning permission was in judicial review.

o Confirmed that it was for the members to decide how to zone the Colbeam Lands.

• Cllr Saul:

o Opposed the Executive’s recommendation and favoured open space zoning – the effect of which, he considered, would be that 25% of the OLG Campus will be retained as open space.

o Rejected the Executive’s rationale that, as the Colbeam Lands were not in use as public open space, they should not be zoned for open space.

• Cllr O’Leary agreed with Cllr Saul, saying that:

o The members had in 2009 introduced the 25% open space requirement on institutional lands and had defended it ever since from the views of the Executive.

o The OLG Campus had been in part parcelled out and sold and sold on, and developed piecemeal and the community didn't get the benefit of the 25% open space.

o He hoped the Council would stand by its decision of December 2000.

o The zoning decision would not impact the existing planning permission.

• Cllr O’Brien agreed with Cllr Saul and Cllr O’Leary saying that:

o The prospect of SHD on this land had been raised many times in the Dundrum area committee.

o The open space that was on the site over the last 20 years is being eroded at every possible opportunity.

• Cllr Dunne supported the Executive’s recommendation, saying that:

o The ship has long sailed in terms of the use of the Colbeam Lands. It was sold long ago by the order who were using it for mainly educational use. There had been a lot of development on the Campus.

o It's pie in the sky to be holding private land for public open space.

162 As the CE had recommended.

163 28 members were against, 8 were in favour, and 4 abstained.

What follows is paraphrase not verbatim, but is both accurate and fairly representative of what was said.

Colbeam v DLRCC [2025] IEHC 437

Council Decision Not to Amend the Draft Plan – 21 October 2021 o The Colbeam Lands were appropriate for badly needed student accommodation, provision of which is essential to residential supply in the county.

• The members rejected the Executive’s recommendations by 28 votes to 8 with 4 abstentions. They declined to materially alter the Draft Plan to zone the Colbeam Lands for residential use.

Minutes of 21 October 2021165 The meeting, as later adopted, recorded:

• Consideration, in essence, of the CE Report and recommendation of July 2021 as to the Colbeam lands.

• That the executive’s recommendation was rejected by 28 votes to 8 with 4 abstentions.

Notes:

• The net effect of s.12(6), (7), (10) & (11) PDA 2000, as described above, was that after its decision of 21 October 2021, the Council’s scope for materially altering the Draft Plan in making the Development Plan was limited to those material alterations on which it had decided on 21 October 2021.

• As the Council had decided against material alteration of the Draft Plan by way of changing the zoning of the Colbeam Lands from open space to residential, the last opportunity to do so had passed.

• As counsel for the Council put it, the decision of 21 October 2021 was Colbeam’s last chance and thereafter the die was cast. I also agree with counsel for the Council when he says that Colbeam’s case was “very much focused on the December 2020 process, not the October 2021 process.”166

• Counsel for Colbeam did not open the transcript of 21 October 2021 because the Council had pleaded that its reasons – for rejecting the CE’s recommendations as to the Colbeam Lands - remained the same as those on which it had decided in December 2000.167 I accept that that was the Council’s position.

• But it is nonetheless striking that Colbeam did not open the transcript of 21 October 2021 - even as repeating objectionable content or omissions. That emphasises that Colbeam’s case was, indeed, focussed on the three motions of December 2000. Leaving aside the continued effect of the reasons for the December 2000 decisions, I see no record of regard to irrelevant considerations in the October 2021 transcript and record only of regard to relevant considerations. The essential planning problem being referred to is that open space is being sold for development – not the morality of that phenomenon. It is not for me to agree or disagree, but it is a legitimate planning view.

• I reject, as unfair to him, Colbeam’s assertion168 that a comment by a Cllr O’Brien in debate that “if you

look at the open space that was on the site over the last 20 years, or even less, you can see it being eroded at every possible opportunity” is a rehash of Cllr Saul’s “moral obligation” comment. It is a legitimate planning observation. It is not only lawyers who may deploy advocacy.

165 Affidavit of Louise McGauran, sworn 28/11/22, §114 & exhibit LMCG1 Tab 51.

166 Transcript Day 2 p38.

167 Transcript Day 2 p49.

Transcript Day 2 p167.

Colbeam v DLRCC [2025] IEHC 437

Date Event

11 Proposed Material Alterations to the Draft Plan were placed on display for public November consultation.169 2021 to 17 • The written statement and appendices, 483 amendments, and 169 mapping January 2022 amendments went on display.

• The only proposed amendment as to the Colbeam Lands was the insertion of the tree symbol on them. Their zoning remained for open space.

• 106 submissions on the Proposed Material Alterations were made.

18 Nov. 2021 Redmond #2 was struck out on consent.

8 December Colbeam (Thornton O'Connor/McCann FitzGerald170) submission171 on the proposed 2021 Material Alterations to the Draft Plan. It

• Sought clarification of the proposed material alteration imposing a tree preservation objective on the Colbeam Lands.

• Appended the KPMG report of October 2021.

• Invited the Council to “remove the illegality” by reinstating the residential zoning of the Colbeam Lands. The alleged illegality consisted of:

i. Alleged regard to irrelevant considerations on 15 December 2021 in considering Motions 122 – 124. These include the references to “dysfunctional planning legislation” and the Board’s alleged refusal to uphold the development plan.

ii. Alleged prejudgment of any future planning application.

iii. Failure to consider the relevant consideration that the Board had twice granted permissions172 implying that the Colbeam lands were suited to residential user and failure to explain how the Council could take a different view.

iv. Failure to give adequate reasons for rejecting the CE’s recommendation.

v. Zoning the land for open space absent evidence for such zoning and despite the evidence for residential zoning.

vi. Material error of fact in expecting that zoning the land for open space would secure it for that purpose whereas, as it is not now in public use, there is no prospect of its coming into such use unless developed.

Note: This letter is comprehensible as a letter before action but difficult to understand as a submission in the process. Whether or not its assertions of illegality are well-founded, it could not properly in accordance with law have resulted in the Council’s adopting, necessarily by way of material alteration and in breach of s.12(10) PDA 2000, a decision to zone the Colbeam Lands for residential use.

31 January CE Report to the Members on Consultations on Proposed Amendments to the Draft 2022173 Plan.174

169 In accordance with s.12(7) PDA 2000. Affidavit of Louise McGauran, sworn 28/11/22, §118 et seq. & exhibit LMCG1 Tab 52.

Solicitors.

171 CO0026.

172 Permission ABP-304420-19 granted on 1st July 2020, and permission ABP-309340-21 granted on 3rd June 2021 – both quashed in judicial review.

173 Affidavit of Louise McGauran, sworn 23/5/23, §6.

In accordance with section 12(8) PDA 2000 - Affidavit of Louise McGauran, sworn 28/11/22, §119 & exhibit LMCG1 Tabs 53 & 54.

Colbeam v DLRCC [2025] IEHC 437

Date Event

• Volume II listed and summarised the submissions – including those by Colbeam175 and Roebuck Residents Association176 (which had briefly repeated its earlier view).177

• Under the heading “Non Amendment Issues”178 Volume I summarised and noted those submissions and responded that they “do not relate to the proposed amendments”.179

• This report first formally presented the KPMG report of October 2021 to the members.180

8 February & MAKING OF 2022 DEVELOPMENT PLAN - 10 MARCH 2022

9 & 10 At special council meetings, the members:181 March 2022 • Agreed that they had considered the proposed amendments and the CE Report of January 2022.

• Noted the non-amendment related submissions noted in the CE Report of January 2022.182

• Resolved183 to adopt the proposed amendments to the Draft Development Plan, as:

o modified by the Chief Executive's Report; and o amended by the motions passed at the Council meetings on 9 & 10 March 2022.

• Resolved to make the 2022 Development Plan.184 Note - Zoning of the Colbeam Lands

• As no amendments in that regard had been proposed to the Adopted Draft Plan on 21 October 2021, the net effect was that 2022 Development Plan, as made, zoned the Colbeam Lands for open space185 as illustrated below.

175 C0026. See above.

176 C0046.

177 See Volume 1, p201.

178 Volume 1, p201.

179 As to the Colbeam submissions, the CE also responded “Issues raised in the submissions that relate to the amendments are dealt with in under the

headings for Chapter 3, Chapter 5, Chapter 8, Chapter 9, Chapter 10, Chapter 12 and Land Use Mapping above.” However, on my inquiry at trial my

attention was not drawn to any such content as relevant to the issues I must decide. As far as my searches reveal, the only issue at that time related to

the reinstatement of the tree protection symbol (§3.22 Land Use Mapping 3.22.1 Map 1) – as to which no present issue arises.

180 Affidavit of Louise McGauran, sworn 23/5/23, §6.

Affidavit of Louise McGauran, sworn 28/11/22, §123 et seq. & minutes at exhibit LMCG1 Tabs 57.

182 See note below.

183 under S.12(10)(a) PDA 2000.

184 Minutes of Council meeting 10/3/22.

i.e. there was no change from the Map excerpted above at 18/12/20.

Colbeam v DLRCC [2025] IEHC 437

Date Event

Figure 3 – 2022 Development Plan Zoning Map Extract186

• The northern “half” of 3.29 ha – the schools area and the northern part of the Colbeam Lands187 – is zoned Objective SNI.188

• The south-eastern “quadrant” of 1.49 ha – broadly The Grove and the Convent area – is zoned Objective A (residential).

• The south-eastern “quadrant” of 1.18 ha – most of the Colbeam Lands – is zoned Objective F (open space189) and a tree/woodland preservation objective is applied.

• Lands zoned for open space are coloured green.

• The INST Objective applies to the OLG Campus generally, including the Colbeam Lands.

INST Objective & Accompanying Text As here relevant, the 2022 Development Plan content includes the following:

• The INST Objective correlates to Development Plan §4.3.1.4 Policy Objective PHP21:

Development on Institutional Lands: “[i]t is the Policy Objective to retain the open character and/or recreational amenity of land parcels that are in institutional use (such as religious residential or other such uses) and are proposed for redevelopment.”

• Institutional lands are identified by an INST Objective on Development Plan Maps.

• “Where no demand for an alternative institutional use is evident or foreseen, the Council may permit alternative uses subject to the zoning objectives of the area being adhered to and the open character and recreational value of the lands being retained.”

• In proposed development of institutional lands:

o “A minimum of 25% of the entire INST land parcel, as determined by the Planning Authority, will be required to be retained as accessible public open space.”

186 Development Plan Map extract - exhibit LMcG1 Tab 19.

187 See Figure 1 above.

188 “To protect, improve and encourage the provision of sustainable neighbourhood infrastructure” – grey on map.

“To preserve and provide for open space with ancillary active recreational amenities” – green on map.

Colbeam v DLRCC [2025] IEHC 437

Date Event o “This provision must be sufficient to maintain the open character of the site with development proposals structured around existing features and layout”.

• “In cases of rationalisation of an existing institutional use, as opposed to the complete cessation of that use, the future anticipated needs of the existing use, including extensions or additional facilities related to the residual institutional use retained on site should be taken into account and accounted for in the master plan for development on the lands in question.”

• “§12.3.7.10 Institutional Lands” essentially repeats §4.3.1.4 Policy Objective PHP21 but not in precisely the same terms. It states, inter alia:

o “Where no demand for an alternative institutional use is evident or foreseen, the Council may permit alternative uses subject to the area’s zoning objectives and the open character of the lands being retained.”

o “The principal aims of any eventual redevelopment of these lands will be to achieve a sustainable amount of development while ensuring the essential setting of the lands and the integrity of the main buildings are retained.”

o “Public access to all or some of the lands may be required.”

o “A minimum public open space provision of 25% of the total site area will be required on Institutional Lands. This provision must be sufficient to maintain the open character of the site - with development proposals built around existing features and layout, …”.

Notes:

i. I have the minutes of 9 and 10 March 2022.190 I do not have transcripts of those dates.191 ii. I have recorded above that the members noted the non-amendment related submissions noted in the CE Report of January 2022.192 Those included the submissions of 8 December 2021, set out above, as to the Colbeam Lands.

iii. As no amendment/material alteration to the Draft Plan as to the Colbeam Lands was before it at the meeting of 10 March 2022, the Council had no power at that meeting to rezone the Colbeam Lands for residential use and no power to do more than note the submissions in question.

Colbeam accepts that position.193

iv. Colbeam’s particulars194 include the following:

“At the meeting on 9 March 2022, there was brief mention of the Colbeam Lands, but no discussion of any possible change.

190 Transcript Day 2 p40.

191 Transcript Day 2 p43.

Volume 1, p201.

193 Transcript Day 1 p52 et seq. – inter alia, Counsel said, “I'm not asking the Court to quash the decision on the basis that the councillors ought, at that

point, to have made a different decision.” and did not demur from my observation that “I think the die was cast at an earlier point”. See also pp57 &

58.

§57.

Colbeam v DLRCC [2025] IEHC 437

Date Event Specifically, Councillor Saul, when supporting a proposed SLO at the Mount Anville school site to promote those lands for mixed-tenure age friendly housing on lands marked with the ‘INST’ Objective, mentioned the Grove Lands as being among the large number of strategic housing development applications on ‘INST’ lands. He said that a religious institution should be encouraged to come forward with housing proposals, with an approved housing body, to accommodate elderly people from the area, people on the housing lists and members of the institution. He referred also to the “controversies over former religious sites”, and “regularly hearing about religious land being sold to developers”.

v. The Council objected to this plea – though the precise objection was somewhat unclear and resolved to an issue of weight of evidence.195 No transcript was exhibited. Counsel for the Council did concede the possibility that these remarks were made. But these remarks were made, if made, as to different lands and at a point in time when, as has been seen, the members’ decision as to the Colbeam lands had long-since made. The Colbeam lands by March 2022, were not even up for discussion. There is no possibility that these remarks influenced the members’ earlier decisions as to the Colbeam lands. Their only conceivable relevance (and I emphasise the word conceivable) would have been to a plea of bias which, correctly, was not made.

vi. I say, “if made”, for a reason. Colbeam’s Grounds are verified by a generally verifying affidavit.

However, in a case not underburdened by exhibits and in which Colbeam has exhibited transcripts of other Council meetings but not this one, and in which the Council minutes of 9 March 2022 which it does exhibit do not record Councillor’ Saul’s utterances, I do not consider that I am obliged to regard this plea as verified in the required detail. No means of knowledge of these allegations is disclosed by the verifying deponent - an obligation imposed by Order 40 Rule 8 RSC.196 And the remarks, if made, would have to be put in their full context such that weight could be attributed to them for present purposes.

24 Mar. 2022 Colbeam was registered as owner of the Colbeam Lands (having long-since bought them).

6 April 2022 The Council published notice of the making of the 2022 Development Plan.197

21 April 2022 The 2022 Development Plan took effect.198

3 & 25 May The present proceedings issued. Hyland J granted leave to seek judicial review. 2022

17 February JENNINGS V ABP & COLBEAM - JUDGMENT 17 FEBRUARY 2023199 2023 It quashed the Board's SHD student accommodation decision.200 It is not possible here to set out, even nearly, a full account of that judgment. However, of some note, it says that

195 Transcript Day 1 p181 & Day 2 p41 et seq.

196 Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof,

except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted.

197 In accordance with section 12(12) PDA 2000.

In accordance with section 12(17) PDA 2000.

199 Jennings & O’Connor v An Bord Pleanála [2023] IEHC 14. Colbeam relied on certain quantitative conclusions drawn on the evidence in that case as to

open space provision. The Council confirmed that it did not object to my having regard to those conclusions in these proceedings. See Transcript Day 2

p6.

ABP-309430-21.

Colbeam v DLRCC [2025] IEHC 437

Date Event

• Ground 2 alleged that the student accommodation SHD materially contravened the Institutional designation of the overall OLG Campus as to:

(a) the minimum 25% open space requirement;

(b) the requirement to maintain their open character.

• Space may be open and valuable whether public or private - though public open space may be more valuable.201

• Open character is lent to land by the presence of open space. But the mere presence of open space may not lend open character. For lands to have open character they must be characterised to appreciable degree by that open space.202

• The Inspector had been entitled to the view that the playgrounds, hockey pitch and tennis courts should be included in the open space calculation but did not contribute to the open character of the OLG Campus.203

• By the 2016 INST Objective, if the “minimum” 25% open space is insufficient to maintain the open character of the site, a greater quantum of open space will be required. And the words “wherever possible” denote a significant degree of ambition.204

• As to Ground 2(a) – the minimum 25% open space requirement:205 o The open space proposed in the student accommodation SHD (52% of the Colbeam Lands) would result in a quantum of 48% open space across the overall OLG Campus. Even excluding the school playgrounds, hockey pitch and tennis courts would still yield an open space figure of nearly 30%.

o The Thornton O’Connor SHD report of February 2021 had addressed, illustrated and quantified that provision in some detail.206 o Ground 2(a) failed accordingly.

• As to Ground 2(b) - open character:207 o The Board found no material contravention as to open character as its inspector had (counterintuitively) concluded that the lands currently lack an open character

201 §§116 & 143 citing Christian v An Bord Pleanála [2012] 2 IR 506 §91. See above.

202 §113.

203 §147.

204 §151. The words “wherever possible” appear in the 2016 Development Plan at §2.1.3.5 Policy RES5: Institutional Lands. It correlated to the INST

designation and provided, inter alia, that: “Where distinct parcels of land are in institutional use (such as education, residential or other such uses) and

are proposed for redevelopment, it is Council policy to retain the open character and/or recreational amenity of these lands wherever possible, subject

to the context of the quantity of provision of existing open space in the general environs

205 §146 et seq.

See Thornton O’Connor Planning SHD report February 2021 §6.6. Figure 6.6: Open Space Provision within the Site and within the wider Institutional

Landholding. Table 6.7 Key Site Statistics. §6.6. reads in part “In the wider context of the entire lands designated 'institutional', which measure

approximately 60,264 sq. m/ if the subject scheme is granted permission there will be a total of 29,135 sq. m open space across the institutional

landholding, which equates to 48% of the overall lands at The Grove subject to the INST designation (60,264 sq. m).

§149 et seq.

Colbeam v DLRCC [2025] IEHC 437

Date Event so, as the Board submitted in Jennings, “… the question of maintaining an open character did not arise …”.

o Simons J in Redmond#1 had held that the 2016 INST designation had, in effect, identified the Colbeam Lands as over 2 hectares of open lands, itself having open character and contributing open character to the OLG Campus. He observed, that “[i]t would be illogical to exclude” from the INST designation specifically208 “open lands” to the south-west – that is, the Site – “from the Institutional designation as those open lands “are the very thing to which the objectives and policies (of the institutional designation) are directed”.

o Development of The Grove since the 2016 Development Plan was made, by developing open space, cannot but have amplified the significance to the OLG Campus of the Colbeam Lands as open space and as contributing open character to the OLG Campus.

o What mattered as to interpretation of the Development Plan, and as to the question whether the Proposed Development would be a material contravention, is not whether the lands “currently” had an open character but that at the time of the adoption of the Development Plan they were deemed to have such character. That interpretation of the Development Plan did not mean that one could not, as a matter of planning judgement, disagree with the identification in the Development Plan of the OLG Campus generally or the Colbeam Lands in particular as “open lands” and as contributing “open character” to the entire Campus, as the Inspector and the Board did (though I confessed to finding that surprising). But to act on that disagreement required acceptance that in doing so one was likely to be acting in contravention of the Development Plan.

o The Board had failed properly to interpret the Development Plan and to consider whether the Proposed Development would materially contravene it by failing to retain the open character and/or recreational amenity of the Campus “wherever possible”. The Impugned SHD Decision was quashed on this account. July/August Colbeam sent the members, cc the executive,209 observations and documents to inform 2024 the member’s decision whether to authorise the defence of these proceedings and inviting them to refuse such authorisation. The authorisation issue is no longer live as, on

17 September 2024, the members authorised the CE to defend the proceedings.

The correspondence enclosed, inter alia, a copy of the judgment in Jennings and a map and spreadsheet210 illustrating and calculating the areas of open space on the OLG Campus

208 Whether such exclusion was correct was a main issue before him.

209 See letter 27 August 2024, McCann Fitzgerald to The Law Agent Dún Laoghaire-Rathdown County Council enclosing, inter alia, Combined

Correspondence to Elected Members July and August 2024.

Map & spreadsheet.

Colbeam v DLRCC [2025] IEHC 437

Date Event

– including the open space provision which had been envisaged in the student accommodation SHD permission quashed in Jennings in February 2023.

The correspondence asserts repeats earlier submissions but in particular submits that:

• Excluding the Colbeam Lands, the open space on the remaining 3 quadrants amounted to 30.41% of the OLG Campus including the Colbeam Lands. In other words, open space on the Colbeam lands was not necessary to meet the INST minimum of 25%. It recited the judgment in Jennings to this effect.

• The student accommodation SHD would result in a total of 48% open space on the OLG campus – “nearly double the 25% provision”.

• The concerns of Cllrs Saul and O'Leary as to open space preservation and potential school expansion were based on incorrect information, leading to a misinformed

decision to dezone the subject lands.

Notes:

i. As is obvious but bears observing, these documents of July/August 2024 were sent to the members long after they made the Impugned Decision. They could not have informed the Impugned Decision.

ii. For reasons unclear to me, as far as I can see, this correspondence was the first occasion on which, in terms, Colbeam made the simple assertion that over 25% of the entire OLG Campus (30.41%) had already been assigned to open space on the three quadrants other than the Colbeam Lands – that the minimum requirement of 25% open space set by the 2016 INST Objective had already been satisfied. Even then, the point is not made in the spreadsheet which purports to mathematically analyse the position.

iii.It is explicitly asserted on the spreadsheet that:

oAfter development of the proposed student accommodation SHD on the Colbeam Lands:

▪ 48.34% of the OLG Campus, including the Colbeam Lands, would be open space;

▪ 37.5% of the Colbeam Lands would be open to the public.

o Excluding the Colbeam Lands, 47% of the OLG Campus is already open space.211 iv. It is not stated on the face of the spreadsheet, but is discernible by its active interrogation, that the open space already on the three quadrants of the OLG Campus other than the Colbeam Lands amounts to 30.41% of the OLG Campus including the Colbeam Lands.212 In other words, the 2016 INST Objective minimum requirement of 25% open space is satisfied no matter what is done with the Colbeam Lands.

211 4.53/9.65 x 100 = 47%.

4.53/14,89 = 30.42%.

Colbeam v DLRCC [2025] IEHC 437

Date Event v. I am not told why Colbeam never made this point to the members in the development plan adoption process. Indeed, it is not even pleaded in these proceedings. Nor is it pleaded that, in considering that the 25% minimum open space had not already been satisfied, the members had made a material error of fact.

vi. Remembering also that neither Figure 6.6 of the Thornton O’Connor report of February 2021 nor the spreadsheet was before the members when they made the Impugned Decision, this position resulted in the following exchange at the hearing:

Judge: So you say they213 should have figured out for themselves the vital point which you hadn't drawn to their attention despite making repeated submissions.

Counsel for Colbeam: Yes, because of the fact that they were so preoccupied with the failure to achieve 25% open space on the lands.

Judge: I'm talking about your preoccupations. Your client did not write214 and say, what now seems to be an obvious thing, 'There's already 25% supplied on the remaining three-quarters of the land.'

Counsel for Colbeam: I accept that point, Judge.

Judge: And you're blaming the councillors for not adverting to that fact.

Counsel for Colbeam: I'm saying it was a relevant consideration to which they failed to have regard, yes.

Judge: Despite the fact that you didn't bring it to their attention?

Counsel for Colbeam: We would respectfully say that there was enough material before them for them to take cognisance of it. 215

vii. In the context that Colbeam had not, in terms, submitted in the development plan making process that the 25% open space minimum had already been achieved on the other three quadrants of the OLG Campus and in the context of the great task before the members in making the development plan and the 1,200-odd submissions and the many other documents before them, I think I may say that whatever the extent of any obligation to read the Colbeam submissions, they were not obliged to read between the lines of those submissions.

viii. In light of:

▪ The judgment of Simons J in Redmond#1,216 based on the evidence before him, that “it is evident from a cursory consideration of the proposed layout that a level of 25% would not be achieved”

were Durkan’s SHD development to have been built;

▪ The position of the Council taken in those proceedings;

▪ The “Saul Slide Show”; and ▪ The absence of any further evidence or submission from Colbeam to the contrary;

the view taken by the members on the evidence before them and in adopting the Development Plan, that the 25% minimum open space requirement had not been satisfied is, even if erroneous, hardly

213 i.e. the Council members.

214 i.e. before the impugned decision was made.

215 Transcript Day 1 p169.

§89 as cited above.

Colbeam v DLRCC [2025] IEHC 437

Date Event surprising. And, though erroneous, it was clearly an error of fact and evaluative judgement as to the merits of the position.

ix. Remembering that 25% open space was a minimum requirement of the 2016 INST Objective, and that I should interpret impugned decisions, where possible, as valid rather than invalid,217 ▪ The members’ view is also capable of being understood as relating, as a distinct matter, to the “open character” of the OLG Campus.

▪ The members’ view apart, and as is recognised in the judgment in Jennings, the issue of open character is, as to compliance with the INST Objective, a matter distinct from compliance with the 25% minimum. That issue of open character is for planning decision-makers, not for me.

x. I was not addressed on the question whether the 25% minimum public open space set by the 2022 INST Objective has already been satisfied. But as there is not public access to the school grounds, it is clear that it has not been satisfied. As far as I can see from the map and spreadsheet supplied to the members in July/August 2024, the only public open space already in place is 0.41 acres218 in the Grove Residential scheme - which is 2.75% of the entire OLG Campus. If, as an exercise, one adds the public open space proposed in the student accommodation SHD, the resulting total public open space on the OLG Campus would be 16%.219

THE LAW

16. Various propositions of law contribute to the legal backdrop to Grounds 3 and 2.

POWER TO ZONE LAND FOR OPEN SPACE

17. In the planning system and in development plans, the function of zoning, by s.10(2) PDA 2000, is precisely to identify lands “for the use solely or primarily of particular areas for particular purposes”. See

generally O’Donnell,220 as to the question “What is zoning”? And one of the zoning uses statutorily identified

by s.10(2) is “open space”. At least prima facie, it cannot be said to be surprising or unusual or objectionable

that in a development plan, the designation of land as open space would take the form of a zoning objective. Also, and at least prima facie, it cannot be said to be surprising or unusual or objectionable that, as to land in an earlier development plan designated but not zoned for public space, members would decide in making a later development plan to strengthen that designation by embodying it in a zoning objective.

217 The many authorities to this effect include, recently, St. Margaret’s Recycling v An Bord Pleanála [2024] IEHC 94 §70; Duffy v ABP & McDonagh

[2024] IEHC 558; and Eco Advocacy CLG v An Bord Pleanála [2025] IEHC 15 §63 (vi), which lists numerous authorities.

218 0.12 + 0.09 + 0.07 + 0.13 = 0.41 Acres. – 0.41/14.89 = 2.75%.

219 The Map shows 7,956m2 of public open space in the student accommodation SHD. That is 1.97 Acres. That would yield 1.97 + 0.41 = 2.38 acres of

public open space on the entire OLG Campus. 2.38/14.89 x 100 = 16%.

O'Donnell v An Bord Pleanála & Drumakilla [2023] IEHC 381 §61.

Colbeam v DLRCC [2025] IEHC 437

COURTS SLOW TO INTERFERE WITH DEMOCRATIC DECISIONS

18. The power to make a development plan, including the power to zone land, is a reserved function of the members of planning authorities. In other words, it is to be made by elected representatives – politicians. It is, in appreciable part, a political decision. It is a commonplace that, in making zoning decisions in accordance with their legitimate view of proper planning and sustainable development, elected members may have to choose between, not merely national and other applicable policies but also the competing views of constituents and other stakeholders, including landowners and developers, and between competing potential beneficial uses of lands – here between residential use and open space. These are often not black/white decisions which can be characterised as right or wrong.

19. The necessary general observation, as to decisions by elected members in making development plans, has been repeatedly made, first in Malahide Community Council221 and latterly by the Supreme Court in Killegland:222

“… any court must be very slow to interfere with the democratic decision of the local elected representatives entrusted with making such decisions by the legislature.”

And, as Hogan J observed in Killegland:

“These sentiments now apply with even greater force following the subsequent adoption of Article 28A.1 of the Constitution in 1999 with its recognition of “the role of local government in providing a forum for the democratic representation of local authorities in exercising and performing at local level powers and functions conferred by law”.

See also Bartra in this regard.

20. In Bartra,223 Barry O’Donnell J very helpfully attempted an accumulation of relevant law to date. He cited the foregoing from Killegland.224 Notably, and mutatis mutandis the relevant grounds in Barta were pleaded in the same terms as in the present case.225 The Council stresses it accordingly as the template I

should follow - not least in the view226 that what is at issue in this case is in the end, as it was put in Jones,227

“simply a merits-based disagreement dressed up in legal language”. As Barry O’Donnell J said: “[t]he obligation to avoid engagement with the merits seems to me to be heightened when the decision under challenge is one made as part of the policy function of an elected deliberative assembly.” And as Humphreys J said in Jones228 (echoed by Barry O’Donnell J in Bartra229):

221 Malahide Community Council Ltd v Fingal County Council [1997] 3 IR 383 at 397.

222 Killegland Estates v Meath County Council & Giltinane [2023] IESC 39.

223 Bartra Property (Dublin) Ltd v Dun Laoghaire Rathdown County Council [2024] IEHC 535.

224 Bartra §§79 & 80.

Bartra §6 et seq.

226 Bartra §10.

227 Jones v South Dublin County Council [2024] IEHC 301 §230.

228 Jones v South Dublin County Council [2024] IEHC 301 §230.

Bartra Property (Dublin) Ltd v Dun Laoghaire Rathdown County Council [2024] IEHC 535 §10.

Colbeam v DLRCC [2025] IEHC 437

“The determination of land use objectives in a development plan is perhaps the single most significant policy function entrusted to elected local councils, who must account for their policy stewardship directly to the electorate every 5 years. That is not an unlimited power of course, but, especially as a collective, policy-based, merits-based, decision made by an elected, deliberative, political assembly, it is one which necessarily involves a significant margin of appreciation.”

21. An applicant in judicial review faces a particularly uphill task in seeking to quash a development plan or a zoning decision in a development plan. As a general observation, these sentiments appear to me to apply in the present case. However, one frames this principle – as reluctance to interfere, as a heightened presumption of validity230 or as a significant margin of appreciation – the resulting practical position is the same. As is the impression in this case that what is really in dispute is the planning merit of the Impugned

Decision, not its legality.

NO EXPECTATION OF CONTINUATION OF ZONING

22. While it can operate as a harsh rule, not least given the status of development plans as solemn representations that planning authorities will perform their functions strictly in accordance with their terms

– Byrne231 and St. Margaret's Recycling232 - nonetheless it is clear that zoning is a commitment only for the duration of a plan and no longer. A landowner or developer has no legal entitlement to expect that the zoning of its land in a development plan will be continued in the succeeding plan. As observed by Hogan J in Killegland,233 s.10(8) PDA 2000 provides that there is no presumption in law that land zoned for any purpose in a development plan shall remain so zoned in any subsequent plan. Any zoning is liable to be changed via the democratic process when the next development plan is adopted. See also Bartra234 in this regard. As was said of s.10(8) PDA 2000, in Ballindooley:235

“… landowners are entitled to no presumption that the zoning of their land will persist from one development plan to the next. The purchaser of zoned lands takes the commercial risk that their present zoning will not survive the making of a new plan. No doubt the practical reality, predictability, degree and weight of that risk will vary as between sites – but, whatever it may be, the landowner must bear it.”

23. Though the circumstances in McGarrell236 were different,237 the underlying principle was the same and Hogan J notably observed that “One can readily appreciate that McGarrell may feel a sense of disappointment given the express language of Variation No. 2 and the considerable sums of money it said it

230 As the Council argued – Transcript Day 2 p66.

231 McKechnie J, in Byrne v Fingal County Council [2001] 4 IR 565.

232 St. Margaret's Recycling and Transfer Centre Ltd v An Bord Pleanála [2024] IEHC 94.

Killegland Estates Ltd v Meath County Council [2023] IESC 39 §56. Cited in Pat O’Donnell & Co v Dublin City Council & Uniphar [2024] IEHC 671 §33.

234 Bartra Property (Dublin) Ltd v Dun Laoghaire Rathdown County Council [2024] IEHC 535 §79.

235 Ballindooley Developments v the Minister for Housing, the OPR & Galway City Council [2025] IEHC 109.

236 McGarrell Reilly Homes Ltd v Meath County Council [2023] IESC 40.

The Plan had ineffectually zoned land for development after expiry of the plan.

Colbeam v DLRCC [2025] IEHC 437

had spent preparing these sites for development, but there can be no such estoppel or legitimate expectation …”.

24. And, against the possibility that the decision quashed in Jennings may yet be remitted to the Commission for redecision, Protect East Meath238 is authority that a planning applicant bears the risk of any change in the applicable development plan while a planning application is pending. It also implies that such change is possible even while a planning application is pending.

25. So, even given its expenditure on its lands, that is essentially Colbeam’s position. But, though a significant part of the legal context, these observations do not dispose of these proceedings.

26. In light of observations made by Colbeam in these proceedings, as to its liaison with and reliance on intimations by the Council Executive, some further observations are apposite.

• First, given the explicit attitude of the Executive in the development plan-making process to the Colbeam lands, it is easy to infer that the Executive may have informally intimated such an attitude to Colbeam and that Colbeam may have, understandably, found it encouraging. There is, in principle, nothing wrong with such interactions. But they do not generate legal rights.

• Second, it is difficult to infer, and in fairness Colbeam did not assert, that the Executive gave Colbeam any assurances even colourably legally binding.

• Third, in evaluating and deciding whether to take a particular commercial risk, it may very well be prudent of a landowner or developer to discuss the zoning prospects of a particular site with the executive of the planning authority. Nonetheless, a developer must, and in the case of a substantial and professionally advised developer such as Colbeam no doubt does, always bear in mind that the making of a development plan and, therein, decisions as to zoning, is a function reserved by statute to the decision of the members. Though they are invariably influential, council executives do not make development plans – the members do. Nothing the executive may say to landowners or developers as to prospects of zoning or other elements of a future development plan as they may affect particular lands or, indeed, as to prospects of getting planning permission, can bind the members in the exercise of their reserved function of making a development plan.

27. In short, the risk of “dezoning”239 is one of the commercial risks that the investor in development land and its intending developer, as entrepreneurs, take.

238 Protect East Meath Ltd v An Bord Pleanála & Rockmill [2025] IEHC 276 §191.

239 “Dezoning” is not a term of art. But it is generally understood as referring to a change of zoning which tends to devalue the land or make its

development more difficult and/or less lucrative. Here, it can be sensibly applied to the change in the zoning of the Colbeam land from residential in

the 2016 development Plan to open space in the 2022 Development plan and I will use the term in that sense as a convenient shorthand

Colbeam v DLRCC [2025] IEHC 437

LANDOWNERS’ RIGHTS IN DEZONING DECISIONS

28. These observations do not imply that, as to the risk of dezoning of specific lands, landowners and developers have no rights. As relevant here, they are at least entitled to reasons for the dezoning and are entitled to expect that in the making of zoning decisions regard will be had only to relevant considerations.

RELATIONSHIP BETWEEN LAW OF REASONS & RELEVANCY PRINCIPLE & PRACTICALITIES OF POLITICAL DEBATE

29. This is not, in terms, a “reasons” case. Yet an observation is required as to what seems, to me at least, to be a very close but somewhat elusive relationship between, on the one hand, the duty to have and state reasons for decisions and on the other hand, the duty, in making a decision, to have regard to all relevant considerations and to disregard all irrelevant considerations.

30. Separately, and without attempting to be comprehensive, the essence of these respective duties, as they relate to specifically justiciable decisions, can be simply stated as follows:

i. Considerations, relevant or irrelevant in law, are those matters to which, before making its decision, a decisionmaker must, may or may not advert. Sharpe240 is authority that in making a decision, a decisionmaker both must have regard to all legitimately relevant considerations and may have regard only to such considerations. To put the latter in its negative sense, the decisionmaker must disregard all irrelevant considerations. Encompassing both relevant and irrelevant considerations, Moules241 usefully identifies these rules as the “Relevancy Principle”.

ii. Whether a consideration is relevant or irrelevant often will be, but may not always be, a matter for of law on which the court has the final say: “[s]ome considerations are lawfully required, others prohibited. In between lies a zone of evaluation where a decision-maker enjoys a discretion as to what to take into account” - Killegland (HC).242 It may be useful to think of these as considerations to which a decisionmaker may, not must, have regard.

iii. Logically, regard to relevant considerations precedes the formulation of reasons for a decision.

However, that is not to suggest that a rigorously logical sequence is required – rather it illustrates that it is relevant considerations which inform, lead to and in a sense become, by the decisionmaker’s choice, the reasons for a decision.

iv. A decisionmaker must always have reasons for a justiciable decision. Arbitrary justiciable decisions are unlawful – Mallak.243

P & F Sharpe v Dublin City & County Manager [1989] IR 701. Finlay P stated in imperative terms: “the decision-making authority must have regard to

all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced.”

241 Moules, Environmental Judicial Review, Oxford, 2011, p204.

242 Killegland Estates v Meath County Council & Giltinane [2022] IEHC 393 §198.

Mallak v Minister for Justice [2012] 3 IR 297, SC, §45.

Colbeam v DLRCC [2025] IEHC 437

v. As distinguished from having reasons for its decision, a decisionmaker need only record its main reasons on the main issues. Many cases can be cited for this proposition. Connelly is prominent in that list and it was recently repeated in Fahybeg.244

31. While it may not in practice much add to the duty in many cases, as the record of main reasons is interpreted as if by the intelligent, informed reader, that record must adequately disclose the “reasoning” of the decisionmaker on the main reasons on the main issues. Another way of putting this is to say that reasoning is a process and, as to the main reasons on the main issues, the process must be reasonably evident from the decision. In YY, the Supreme Court said that what is necessary is that on a broad and common sense approach, “a party, and in due course a reviewing court, can genuinely understand the

reasoning process.”245 It seems to me that the word “process” is important here. In Lyons,246 Barry O’Donnell

J quashed a decision of the Valuation Tribunal as not adequately “reasoned”. He considered that the findings of fact were reasonably clear, but there was “very little analysis or explanation as how the conclusions flowed from those findings”. It seems to me that the word “how” is important here. In Hickwell,247 in quashing the adoption in a development plan of an indicative road route, Humphreys J invoked the sufficiency of reasoning in circumstances which he considered called for more articulation of why the applicants’ expert report was to be rejected. In Kelly248 (admittedly a leave application) Humphreys J cited MRRA249 and Shadowmill250 to the effect that discerning whether a decision contained the main reasons on the main issues “inherently involves taking the reasoning as a whole”. Owens251 is authority that planning decisions must show their reasoning as it facilitates scrutiny of rationality of a decision. In Damer252 Simons J quashed a refusal of planning permission for failure to meet the required “standard of reasoning” – holding that “[t]he Board’s reasoning should be evident from its decision (when read in conjunction with the inspector’s report).” Perhaps often the reasons themselves will disclose the reasoning. Perhaps, requirements as to reasoning will not be as demanding in non-adversarial processes or processes not affecting fundamental rights. Perhaps also requirements as to reasoning will be less demanding of collective or deliberate decisions. But the requirement will remain and in planning decisions of various kinds, very significant rights and interests are often at stake.

32. Moules253 expresses the close relationship between considerations and reasons. He says, “[t]he relevancy principle, by contrast,254 is concerned with whether an appropriate reasoning process was adopted and whether the decision-maker’s conclusions are supported by proper considerations.”255 For “proper” we

244 Fahybeg Windfarm Opposition Group v An Bord Pleanála [2025] IEHC 310 §33 citing Connelly v An Bord Pleanála [2018] IESC 31, [2018] 2 ILRM 453

(Clarke CJ); Balscadden Road SAA Residents Association Limited v An Bord Pleanála [2020] IEHC 586 (Unreported, High Court, 25th November 2020),

§39; O’Donnell v An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 5th July 2023), §§45-57; Friends of the Irish Environment v Minister for

the Environment & Ors [2025] IEHC 61 (Unreported, High Court, 7th February 2025) at §86(i)).

245 YY v Minister for Justice and Equality, [2018] 1 ILRM 109, §80.

246 Lyons v Commissioner of Valuation [2024] IEHC 223.

247 Hickwell Ltd v Meath County Council [2022] IEHC 418.

248 Kelly v An Bord Pleanála [2024] IEHC 364.

249 Monkstown Road v An Bord Pleanála [2022] IEHC 318, [2022] 5 JIC 3106.

250 Shadowmill v An Bord Pleanála [2023] IEHC 157, [2023] 3 JIC 3106.

251 Owens v An Bord Pleanála [2021] IEHC 532.

252 Damer v An Bord Pleanála [2019] IEHC 505.

Moules, Environmental Judicial Review, Oxford, 2011, p202.

254 With the law as to improper purposes – which he describes as focussed on the decision-makers ends. Others consider the concepts of improper

purpose and irrelevant considerations to at least largely overlap such that it is pointless to consider them separately – Hogan, Morgan & Daly

Administrative Law 5th Ed’n §17-57.

Emphasis added.

Colbeam v DLRCC [2025] IEHC 437

can read “relevant” and, as stated above, by the “relevancy principle” he means the duty to have regard to relevant considerations and ignore those irrelevant. So, Moules links the reasoning process to the relevance of the considerations which “supported” the decision.

33. As to that relationship between reasons and the relevancy principle, it appears from the cases that:

i. In making a particular decision, the weight – absolute and relative - if any, to be given to each relevant consideration is a matter for the discretion of the decisionmaker. The exercise of that discretion is reviewable as to merit only for irrationality.

ii. In making a particular decision it is to be expected that, in the ordinary way, some relevant considerations may weigh in favour of and some against the decision ultimately made.

iii. It may be that in a given case, having had regard to a consideration relevant in law, the decisionmaker will decide that it merits little or no weight, one way or the other, informing the decision.

Though relevant in law, it may prove more or less irrelevant in substance.

iv. If a relevant consideration does appreciably weigh in informing the decision, it will constitute, or at least underlie, a reason for the decision. So, relevant considerations found weighty are closely related to the reasons for a decision.

v. The requirement that a decision be “reasoned” may sometimes require a record of the main reasons tending not merely for, but against, the decision and a resolution of the conflict by way of the

decision. Whether that is so in a given case, and how in substance any such requirement will be satisfied will typically be highly context-dependent.

vi. In practice, discerning whether the relevancy principle has been complied with generally involves looking, in the first instance at least, at the decisionmaker’s record of reasons - as they will typically disclose the considerations to which the decisionmaker had regard in formulating at least its main reasons on the main issues.

vii. Failure to have regard to a relevant consideration implies the possibility that regard to it would have altered the identification of the significant reasons for a decision – not least the main reasons on the main issues - and the further possibility that a different decision would have been made.

viii. The position as to regard to irrelevant considerations is somewhat different. As will be seen, a question will arise whether that regard was material to the decision.

ix. A consideration which appreciably weighs in informing a decision and so constitutes a reason for the

decision may or may not be a main reason on a main issue.

o If it is, it will be necessary to record such a consideration as a reason and thereby the record of reasons will have served to identify considerations to which regard has been had and their relevance in law will often be readily discernible.

Colbeam v DLRCC [2025] IEHC 437

o If it is not, it will not be necessary to record such a consideration as a reason. That raises the possibility of unrecorded regard to an irrelevant consideration and/or unrecorded failure to have regard to a relevant consideration.

x. It seems to me that it is this last possibility that can cause the most difficulty in practice and, for example, resulted in the decision of Humphreys J in DAA v Fingal.256 He found that the reasons stated in the record of the impugned decision had been adequate – that the applicant could not have been in any real or genuine doubt about the reason for the decision.257 Nonetheless he found that irrelevant considerations vitiated the decision: “The issue here is not lack of stated reasons – there is an expressly stated planning rationale which is a valid reason – but the argument that in coming to that otherwise valid and reasoned decision, extraneous and impermissible matters were taken into account.”258

xi. The potential for lack of clarity seems to me to arise where, as is the case, whether certiorari is to issue depends on whether the irrelevant consideration to which regard was had was “material” to the decision – in other words, was a reason for the decision, even if not a main reason.

34. So, while this is not a “reasons case”, questions as to the identification of the reasons given for zoning decisions and the considerations to which regard was had in making them are closely linked. Cases considering the identification of reasons and considerations often also consider the adequacy of such reasons and the relevance of such considerations. These issues often, in practice, are considered together. That is so not least as adequate reasons typically identify at least the main considerations to which regard was had and the test of adequacy of a statement of considerations, where required, is the same as that of the adequacy of a statement of reasons – see Kelly, Eoin259 and Mulholland.260 In Mulholland, though invited to distinguish between reasons and considerations and though noting that the particular statutory duty, under consideration in that case, to state “considerations”, was new,261 Kelly J did not think it necessary to elucidate any difference between reasons and considerations. Rather, as I have noted, he applied to both the same test of adequacy to purpose. It is, in my view, no criticism to observe that Simons262 does not elucidate the distinction and treats of the adequacy of both as one.

35. I can see that, on particular facts, whether there had been failure to consider a relevant consideration could require examination of an impugned decision in its context beyond the statement of reasons in the decision. However, I confess to difficulty in absorbing a view that an irrelevant consideration regard to which justifies certiorari, could fall short of being, as a matter of fact and in law, a reason (even if not a main reason) for the decision in which regard was had to it. Why quash a decision by reference to a consideration which did not influence its outcome? Perhaps the answer lies in the difficulty in discerning

256 DAA v Fingal County Council [2024] IEHC 589, [2024] 10 JIC 1702.

257 §52.

§75.

259 Kelly v ABP & Aldi [2019] IEHC 84, [2019] 4 ICLMD 61, [2019] 2 JIC 0804, §187 et seq.

260 Mulholland v An Bord Pleanála (No. 2) [2005] 1 IR 453.

261 p464.

Simons on Planning Law, 3rd Ed’n (Browne) §13-394 et seq.

Colbeam v DLRCC [2025] IEHC 437

whether it influenced the outcome and the importance of public confidence in the process. More likely, it seems to me, it lies in the idea that a decision might be quashed by reference to an irrelevant consideration which, though a reason for the decision, was not a “main reason on a main issue” such that it need not have been and was not apparent in the impugned decision. That seems to have underlain the decision in DAA v Fingal in which the reasons were upheld but the decision was quashed for regard to irrelevant considerations. Again, the possibility of quashing a decision for a “less than main” reason may reflect the importance of public confidence in the process.

36. At, I confess, my invitation, counsel for Colbeam and I became at trial somewhat enmeshed in a pas de deux on the head of a pin. The question reduced to absurdity was whether an irrelevant consideration to which regard was had, weighty as to 1% in an impugned decision, required certiorari. While counsel resisted the proposition and suggested that in any event the court might have recourse to the discretionary character of remedy in judicial review, I was left with the impression nonetheless of a somewhat doctrinaire view on his part. Counsel confirmed that his position was that if in making a decision 1% weight is attributed to an irrelevancy and 99% weight is attributed to relevant factors, the decision must be quashed.263 He retreated to the beguiling simplicity of the proposition that no regard may be had to an irrelevant consideration and that that is what s.12(11) PDA says. Accordingly, I think I must say a little more as to the general law of irrelevant considerations before moving to the cases on its application in judicial review of zoning decisions.

37. Finlay P in Sharpe264 stated what Moules265 identifies as the Relevancy Principle in imperative terms: “the decision-making authority must have regard to266 all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced.” It is easy to see where counsel for Colbeam is coming from. But given it is well-established that the burden of a duty of regard is usually very light, such that it can be readily found fulfilled, it might be thought that mere regard to an irrelevance, as invalidating a decision, represents something of a hair trigger. So, it seems to me notable that Moules:

• Frames the relevancy principle in terms of “the factors that influenced267 the decision-maker”.

• Invokes the concept of considerations as having “supported” a decision.

• States that breach of the principle “does not necessarily mean that the decision will be unlawful; it may be justified on other grounds, or the irrelevant factor may be immaterial or insubstantial.” 268

• By his examples from the caselaw, links this proposition with the law on severance of invalid reasons for a

decision.

38. In similar vein, Biehler269 states that:

• Generally, regard to an irrelevant consideration must be a material factor before it grounds review.

263 Transcript Day 1 p134.

264 P & F Sharpe v Dublin City & County Manager [1989] IR 701.

Moules, Environmental Judicial Review, Oxford, 2011, p204.

266 While other sources refer to taking a consideration “into account”, I will use the formulation of Finlay J.

267 My emphasis.

268 p206. Emphasis added.

Biehler, Judicial Review of Administrative Action, 3rd Ed’n p99.

Colbeam v DLRCC [2025] IEHC 437

• However, unlike in the case of acting for an improper purpose, it seems it is not necessary that the irrelevant consideration was the dominant influence on the decision maker to act as he did, provided its influence was at least material.270

• The weight of materiality may vary according to the importance of the rights at issue. For example, it would weigh particularly in cases involving personal liberty. Academic texts should not be read as if statutes, nor their individual words overstressed. But it is impossible to read either Moules or Biehler as supporting a doctrinaire view that mere regard to an irrelevant consideration must invalidate a decision. That accepted, it must follow that the degree of materiality of the irrelevant consideration to the impugned decision is relevant to the question whether it should be quashed.

39. In DAA v Fingal, Humphreys J accepted that materiality to the decision matters in judicial review alleging regard to irrelevant considerations. As I have said, once one accepts that, to warrant certiorari, irrelevant considerations must have materially supported an impugned decision and leaving aside the question of the degree of materiality required, I confess to doubting the substantive distinction between reasons and considerations. Nor have I found authority solidly explaining that substantive distinction. That said, I am conscious that judicial review is an area of common law arguably in at least some respects characterised less by a seamless fabric of perfectly coherent principles than by a box of different analytical tools of which, and of choice and in varying degrees, more than one may suit a given purpose. Accordingly, I say with appreciable diffidence that it seems to me likely that Humphreys J may have had in mind that, in a given case and while the reasons stated may have sufficed as the main reasons on the main issues, other

reasons – possibly less than “main” but in any event sufficiently material to vitiate a decision – may also have

been active in supporting the impugned decision. Such a view may reconcile the limits of the duty to give reasons with the vigilance required to police reliance on irrelevancies in decision-making which would unacceptably damage public confidence in such decisions.

40. I confess to wondering if it might not be easier to recognise that questions as to peripherality, marginality or centrality of legally irrelevant considerations are in substance questions about the reasons for which a decision was made and whether the irrelevant reasons can be severed from the relevant on the basis that they made no difference in that the decision would have been the same without them.

ZONING DECISIONS - REASONS AND CONSIDERATIONS s.12(11) PDA 2000

41. As noted above, by s.12(11) PDA 2000, members are restricted, in making a development plan, to considering:

• The proper planning and sustainable development of the area to which the development plan relates.

• The statutory obligations of any local authority in the area.

Emphasis added. She cites State (Cussen) v Brennan [1981] IR 181 as an example.

Colbeam v DLRCC [2025] IEHC 437

• And any relevant policies or objectives for the time being of the Government or any Minister of the Government.

42. For present purposes and in general terms, the issues are whether the members properly considered the proper planning and sustainable development of the area (Ground 2 – relevant considerations) and/or considered irrelevant matters – matters other than those listed in s.12(11) PDA 2000 (Ground 3 – irrelevant considerations).

Alleged Irrelevant Considerations & Issues Arising

43. Essentially, Colbeam alleges that:

• Issues of “moral obligation” of landowners are not relevant considerations. The Council agrees but says, in essence, that I should find that no material regard was had to this consideration in the Impugned

Decision.

• Attempts by members to so craft a development plan as to frustrate the Board’s exercise of its statutory powers and perceived tendency to grant permissions other than in accordance with such a plan represent improper motivation and consideration of matters other than the proper planning and sustainable development of the area as reflected in the statutory scheme of the PDA 2000.

44. Four issues seem to arise:

• Were the members required to give reasons for dezoning the Colbeam lands from residential use to open space use? As will be seen, the answer to that question is yes.

• What was the extent of the reasons required?

• Where can those reasons be found?

• Did the Council adopt reasons reflecting the taking into account of irrelevant considerations such that the zoning decision should be quashed?

Colbeam v DLRCC [2025] IEHC 437

Are Reasons for Rezoning Required and, if so, to What Extent?

45. Christian271 concerned a development plan zoning objective – “Z15”272 – which related to what Clarke J loosely called “institutional lands”. 77% of the landholdings zoned Z15 were owned by religious institutions - amounting 51% of the total area zoned Z15.273 The applicants, a religious order, owned various such lands, amounting to 5.5% of the lands zoned Z15. They took particular objection to the exclusion by Objective Z15 of residential development thereon other than social and affordable housing. Clarke J:

• Recognised that development plans are a mixture of the general and the specific – of policies and provisions for their implementation. And even implementation provisions range from the specific to the general. There are many points between these extremes.

• Held that, in making development plans, planning authorities:

o Generally274 need not give reasons for decisions at the policy/strategy end of the spectrum.

o Must give at least some reasons for decisions, implementing such policies/strategies, which may specifically affect individuals’ rights – of both those who may wish to develop their own lands and those whose own interests may be prejudiced by the development of other lands.

46. Clarke J did not in terms say that zoning decisions must be reasoned. But, as has been seen, the applicants’ lands amounted to 5.5% of the lands zoned Z15. He found that the applicants had standing to challenge the Z10 zoning objective and that the Council had not given the necessary reasons for adopting it – at least as to its exclusion, where development of such lands was permissible, specifically of residential development other than social and affordable housing. However, in the present case, it is even easier than in Christian to discern a requirement for reasons. That is so as the Impugned Decision275 specifically and exclusively relates to Colbeam’s lands.

47. Skipping forward in the line of caselaw, it suffices to note that Humphreys J in Killegland276 is cited in Pat O’Donnell277 to the effect that, generally, reasons must be stated for rezoning an individual piece of land.

48. As to the extent of the reasons required for a zoning decision affecting particular lands, Christian is

authority, repeated in the cases since – e.g. Killegland, Bartra, Pat O’Donnell - that the extent of the reasons

required is the main reasons on the main issues.278 In each case, the extent required will depend on the

271 Christian v Dublin City Council [2012] 2 IR 506. The judgment generally is relevant but specifically relevant here are §§51, 52, 76, 79, 80, 81 & 84.

272 The objective is in lengthy terms and is set out in full in the judgment in Christian at §33.

273 This seems to be the sense of §104.

274 §80 states “save such as might be necessary to demonstrate (if it were not obvious from the development plan itself) that the policies underlying the

plan were within the statute or were compliant with broader policies which the statute requires to be respected.”

In the narrow sense in which I use that term.

276 Killegland v Meath County Council [2022] IEHC 393.

277 Pat O’Donnell & Co v Dublin City Council & Uniphar [2024] IEHC 671 §143 et seq.

278 Killegland v Meath County Council [2022] IEHC 393 §75 – citing Connelly v An Bord Pleanála [2018] IESC 31, [2018] 2 ILRM 453; and Atlantic

Diamond v An Bord Pleanála [2021] IEHC 322, [2021] 5 JIC 1403.

Colbeam v DLRCC [2025] IEHC 437

nature of the specific development plan provisions in question. While a detailed review of the law of reasons is unnecessary at this point, this somewhat oracular statement falls to be understood in light, inter alia, of:

• The views expressed in many cases and recently in Killegland279 and in Coolkill,280 citing Weston,281 Marques282 and Grassridge,283 to the effect that the requirement of adequate reasons “arises as a matter of justice”, the underlying objective is fairness and the degree of reasoning required to be made evident in the decision is context-specific. Reasons must be “adequate to the situation”.

• The purpose and function of reasons, as expressed in many cases including by Kelly J in Mulholland,284 that they be adequate to:

(1) Give an applicant such information as may be necessary and appropriate for him to consider whether he has a reasonable chance of succeeding in appealing or judicially reviewing the decision;

(2) Arm the applicant for such hearing or review;

(3) Enable the applicant to know if the decision-maker has directed its mind adequately to the issues which it was required to consider; and

(4) Enable the court to review the decision.

49. Accordingly and in short, ascertainable and adequate reasons were required for the Impugned

Decision to rezone the Colbeam Land.

50. That said, and as was said in Pat O’Donnell,285

“while the extent of reasons required is to give the main reasons for the main issues, the substance of that obligation depends on the context and the making of a development plan is a quite particular context. Clarke J described it as such in Christian and in Killegland, Humphreys J said, and I agree with the general point, that

“An important contextual point is that 2,452 submissions were made on the development plan. Any practical and realistic assessment of the level of reasons required has to have some regard to that context.”286

51. McGarrell287 deserves brief mention in this context. The Applicants challenged the zoning of their lands in the Meath County Development Plan 2021-2027, inter alia for want of reasons. Hogan J observed that “While in some instances the reasons might perhaps have been more clearly explained,” 288 or were “not

279 Killegland v Meath County Council [2022] IEHC 393.

280 Residents of Coolkill v An Bord Pleanála & Midsal Homes [2025] IEHC 265 §142.

281 Weston v An Bord Pleanála [2010] IEHC 255.

282 Marques v Minister for Justice and Equality [2019] IESC 16.

283 Grassridge v Dún Laoghaire Rathdown County Council [2024] IEHC 669.

Mulholland v An Bord Pleanála [2006] 1 IR 453.

285 Pat O’Donnell & Co v Dublin City Council & Uniphar [2024] IEHC 671 §151.

286 §100.

287 McGarrell Reilly Homes Ltd v Meath County Council [2023] IESC 40.

§87.

Colbeam v DLRCC [2025] IEHC 437

as fulsome as they might ideally have been”,289 nonetheless the reasons given sufficed to answer the question – which was whether “the reasons given were sufficient for McGarrell to know in at least general terms the reasons why these decisions were taken”.290 Further, that sufficiency had to be taken in the context that

“McGarrell made detailed submissions through its planning consultants concerning the zoning of the four properties … the Office of the Planning Regulator (and) numerous members of the public also made submissions. … the making of this Development Plan was a very onerous undertaking on the part of the Council, involving as it did the consideration of hundreds of submissions and the need to provide a planning framework for a large county. Some allowance must accordingly be afforded to the Council in this regard. 291

Where Are Reasons To Be Found?

52. Clarke J in Christian,292 as to decisions as to development plan content for which reasons are required, observed that the reasons for a decision must be identifiable with some degree of precision. Though they need not be found in the development plan itself, it must be possible to say of any document posited as recording the reasons, without potential for real debate – with reasonable certainty - that it actually does so. A particular issue arises where members reject their executive’s position.293 In such cases:

• The members must “include whatever reasons motivate their decision either directly in the resolution itself or in some documentation or materials referenced in the resolution which can allow an interested party to ascertain the reasons for the amendment.”294

• The proposers of the amendment295 must “either refer to the reasons for the amendment in the resolution by which the amendment is effected or in other documentation or materials specifically referenced in the amendment resolution.” 296

• Where the motion or the resultant adopted resolution297 either itself states its reasons298 or refers to other documents from which the reasons can be ascertained, by passing the resolution the majority of the elected members sign up to the reasons thus expressed and, ordinarily,299 cannot to go behind those reasons.

289 §88.

290 §87.

291 §79

292 Christian v Dublin City Council [2012] 2 IR 506, §§83 & 86.

293 For which reasons will be found in the relevant CE Report. If the CE’s view is accepted those reasons may be taken as the elected members.

294 §83.

295 The issue will in practice arise by way of proposal of an amendment to a form of draft plan initially proposed by the executive and hence reflecting

the executive’s position. If the issue arises later in the process it will arise by way of amendment to the adopted draft plan.

296 §84.

297 The judgment refers only to resolutions but depending on the facts they may differ in their expression of reasons.

Such as the motion in Tristor Ltd v Minister for the Environment [2010] IEHC 397.

299 Clarke J allows for exceptional circumstances, such as allegations of corruption and the like, when it may be appropriate to go behind the reasons

expressed. I would allow the possibility of an exception for members who vote for a resolution having expressly disavowed the reasons proffered in the

motion and expressly done so for other reasons – though what effect, if any, that would have on the discernment of the corporate reasons for the

decision may be a difficult question.

Colbeam v DLRCC [2025] IEHC 437

• Other than the development plan any documents said to represent the reasons must be either expressly referred to in the development plan or, by necessary implication from the terms of the development plan, clearly adopted as part of the reasoning by those voting for the plan.300

53. On the facts in Christian, the executive disagreed with important elements of objective Z15 as adopted, the relevant motions proposed and resolutions adopted on foot thereof301 did not state the reasons underlying them and there were no documents extraneous to the development plan which could reasonably be relied on as provided those reasons. The decision impugned in Christian was quashed for want of discernible reasons.302

Plan-Making – an Iterative and Complex Process

54. It is also notable that Humphreys J in the High Court in Killegland303 said that in discerning reasons for zoning decisions it is significant that the adoption of a development plan involves “a complex choreography of different steps all of which have to be read together ... It would be unrealistic and inappropriate to try to judge the reasons for the ultimate decision in the absence of a holistic overview of all the various critical steps involved.” 304 (Hence the chronology above.) I further agree with his observation as follows:

“Nor is it the case that a decision-maker has to reiterate previously-articulated reasons just because a contrary submission is made subsequently. If the previous reasons deal with the essence of the main issues, then they do not need to be reiterated just because a submission or a further submission is made thereafter, unless a significant new point emerges or there is a significant change of circumstances.

Ultimately the whole argument being made is an attempt to detach the final decision of the elected members from its context …”.305

55. So, Colbeam may invoke the Councils’ regard to considerations regarded and reasons given in the Council meetings, described above, which preceded the final decision of March 2022. In fairness, this was not disputed. Specifically, this includes the meeting of December 2020 which Colbeam criticises.

300 §§86 & 87.

The judgment refers only to resolutions but it is clear from the context that both the motions proposed and resolutions adopted were unreasoned.

302 §§91 & 144.

303 Killegland v Meath County Council [2022] IEHC 393; cited in Pat O’Donnell & Co v Dublin City Council & Uniphar [2024] IEHC 671 §146.

304 §§102 & 103.

§115.

Colbeam v DLRCC [2025] IEHC 437

Minutes of Meetings

56. In the first place, the reasons for a decision may be stated in the resolution adopting the decision. Or they may not. Minutes need not record reasons for decisions - Baile Bhruachlain.306 But they often prudently and usefully do. The official record of the resolutions at issue here is found in the minutes of the relevant Council meetings as later adopted by its members.

57. Schedule 10, §14 of the Local Government Act 2001 prescribes that minutes of council meetings:

• Are “drawn up” by the meeting administrator.307

• Contain, inter alia “particulars of all resolutions passed at the meeting” and “such other matters considered appropriate.”

• Be circulated to each member. Though it is not expressly stated, it is clear in context that they must be circulated in draft in advance of their confirmation.

• Be “submitted for confirmation as an accurate record” to a meeting of the council.

• When confirmed, with or without amendment, are signed by the person chairing the meeting at which they were confirmed.

• Claiming to be so signed shall be received in evidence without proof.

58. Viewing §14 of Schedule 10 in, inter alia, the context of the administrative law obligations of fair procedures and to give reasons for decisions, the caselaw in those regards and general principles of “good administration” (guaranteed by Art 41 CFREU308 as to EU law rights but hardly deniable in domestic law), it is clear that:

i. The word “accurate” encompasses fairness, completeness and impartiality. Minutes must be all of these.

ii. That said, minutes are a summary, not a transcript. They are intended to record decisions briefly and within reason. And, to the extent that reasons are required for those decisions, minutes may record those reasons.

iii. As minutes must be “accurate”, insofar as they do record the reasons for a justiciable decision, they must conform to the requirements of the administrative law duty to give reasons for decisions.

Broadly, that is to give the main reasons on the main issues.

iv. While drawn up by the meetings administrator, the minutes are subject to correction by and adoption by the members. The members who made the decision decide also what reasons for it are recorded.309

306 Baile Bhruachlain Teo v Galway County Council [2024] IEHC 604 §117.

A council employee identified pursuant to s.46 of the Local Government Act 2001.

308 “1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and

agencies of the Union.”

309 This observation treats the members as a body – it is not to be read as requiring that the precisely same group of members approve the minutes as

made the decision.

Colbeam v DLRCC [2025] IEHC 437

v. As council minutes are adopted pursuant to statute and are deemed by statute evidential of their content, it is safe to infer that, to any extent they record such reasons for a resolution passed, they constitute a prima facie record of a council’s reasons as stated therein. So, as to their statements of reasons, minutes are in law the official and evidential record of the reasons for the resolution. They are the first recourse in the quest for reasons.

vi. However, such minutes are not conclusive or exhaustive evidence of those reasons to the exclusion of all other evidence. Minutes can be supplemented.

vii. In theory, minutes can even be rebutted - though one would expect that to be a very uphill struggle requiring extraordinary facts. Courts should not normally look at individual councillor’s opinions if they contradict the official record.

viii. Minutes can be supplemented by such documents and evidence as may be probative of the reasons and considerations which in fact supported a decision. Typically, they may include:

▪ A CE report to a council (where the councillors’ took the CE’s advice as to the decision to be made);

▪ Any reasons stated in the motion which resulted in the decision. While the presumption can be rebutted, it will be presumed that a resolution adopted was adopted for at least the reasons stated in the motion to adopt it;

▪ A transcript or other record of what was said by councillors in debating and adopting the decision (though particular care may be needed in contextually considering such evidence).

ix. What can be said is that reasons stated in minutes have the particular weight reflecting the fact that they represent ▪ In draft, the bona fide record compiled by a statutory officer – the meetings administrator.

▪ The statutory choice by the members of the terms in which they wish to express the reasons for their decision.

▪ The outcome of a statutory process requiring that minutes be kept x. While the foregoing is helpful guidance, it is ultimately important to note the underlying rule – which is that, subject to the important proviso that in attempting to discern the reasons for a decision a person need not trawl vast documentation, reasons can be found anywhere that can be reliably identified as supplying them and are to be discerned on a conspectus of the reliable evidence.

All this appears to me to flow from:

▪ The status of minutes as a summary of the meeting they record.

▪ The absence in §14 of Schedule 10 of any attribution of evidential conclusivity to minutes.

▪ Shackleton,310 Indian Zoedone,311 Christian312 and the decision of the High and Supreme Courts in Killegland313 – which also verify many of the principles set out above.

310 Shackleton on Meetings, 14th Ed. §8.07. That is, the content of the minute is evidence of, and may be accepted as proof of the truth of that content

but need not be so accepted and is subject to rebuttal. As minutes of council meetings are public documents and minutes of a public body, it seems

likely that they are evidence against all – not just against the council.

311 Re Indian Zoedone Co (1884) 26 Ch D 70, 53 LJ Ch 468, 32 WR 481, 50 LT 547.

312 Christian v Dublin City Council [2012] IEHC 309, [2012] 2 IR 506.

Killegland Estates v Meath County Council & Giltinane [2022] IEHC 393; [2023] IESC 39.

Colbeam v DLRCC [2025] IEHC 437

Reasons in Minutes of Council Meeting of 18 December 2020

59. As has been seen, while the relevant motion papers had not stated reasons, the minutes of the meeting of 18 December 2020 recorded that the reasons for:

• Reinstatement of the INST Objective as applying to the entire OLG Campus (including the Colbeam Lands)314 were given as:

“The purpose of the motion is to restore the protections provided on the whole of this site by the INST designation first adopted under the 2010 - 2016 CDP;

The motion accords with the High Court finding in Redmond v ABP, that the INST designation applies to the whole of the site; and The INST designation continues to be a legitimate designation in that at the original time of designation the site was in institutional use and under Policy PHP20 the Council's objective is to retain the open character and/or recreational amenity of land parcels in institutional use.”

“To restore institutional protection to the whole of the site and to protect the lands for future use as open space.”

• Rezoning the Colbeam Lands for open space use were given as:

“To restore an open space provision through a zoning change in order to safeguard open space for the school use but also for the wider community.”

60. Colbeam do not suggest that these minutes do not accurately record reasons for the Impugned

Decision. Nor do they suggest that they record legally invalid reasons or disclose regard to irrelevant considerations. Put another way, Colbeam accepts that as far as they go, the reasons recorded in the minutes represent legally proper, if from Colbeam’s point of view understandably and highly unwelcome, reasons lacking substantive merit. Colbeam’s point, rather is that the reasons recorded in the minutes are incomplete in recording the reasons and considerations which in fact supported the Impugned Decision.

Transcripts or like records of Meetings – Can they Disclose Reasons & Considerations?

61. Colbeam relies on the transcript of the meeting of 18 December 2020 as supplementing the reasons recorded in the minutes of that meeting and as revealing that the Impugned Decision was in fact supported not merely by the minuted reasons but by further and legally irrelevant considerations. I have recorded certain content of that transcript above.

62. Two linked questions arise:

By resolutions adopting motions 122 and 123.

Colbeam v DLRCC [2025] IEHC 437

• Can regard to transcripts or similar records of meetings be had to discern members’ reasons for decisions and the considerations to which they had regard in doing so?

• What approach is to be taken to the interpretation of such transcripts or similar records as they illuminate such reasons and considerations?

63. The first question can be answered easily enough in the affirmative - on the authority of cases such as:

• Killegland,315 in which Hogan J was prepared to look at a transcript to discern members’ reasons.

• Bartra,316 in which Barry O’Donnell J read such a transcript as disclosing considerations to which regard had been had in making a zoning decision.

• DAA v Fingal,317 in which Humphreys J read such a transcript as justifying certiorari of a zoning decision for regard to irrelevant considerations.

• Flanagan318 and Griffin.319 It should be said that in these cases transcripts were not in issue. In each, the minutes recorded not merely the resolution but its debate and regard to their record of debate resulted in certiorari for regard to irrelevant considerations.

64. It is clear that the court will consider a transcript of a council meeting as possibly supplementing, as to reasons and considerations, those minuted by the council. Transcripts and like records of debate can be interrogated to assist in discerning the reasons for the members’ decision and the considerations to which they had regard.

65. The second question – how transcripts and like records of debate are to be interrogated to assist in discerning the reasons for the members’ decision and the considerations to which they had regard, is more difficult.

Transcripts or like records as they Disclose Reasons & Considerations – How are they to be Read?

66. As I have said, transcripts or the like can be interrogated as to the reasons for members’ decisions and the considerations to which they had regard. Indeed, the Council in this case pleads them extensively and relies on them in its written submissions. But considerable contextual caution by a court in considering such material is necessary. English authority is cautious in reading transcripts as recording reasons and considerations materially supporting a collective decision. Fordham320 cites, as to “context/practical reality” as applicable to deliberative decisions (and, I infer as still relevant, realistic, proportionate and sensible), London & Provincial Electric Theatres321 in which Pickford LJ said:

315 Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, [2023] 12 JIC 2109 §84.

316 Bartra Property (Dublin) Ltd v Dun Laoghaire Rathdown County Council [2024] IEHC 535.

DAA v Fingal County Council [2024] IEHC 589, [2024] 10 JIC 1702.

318 Flanagan v Galway City and County Manager [1990] 2 IR 66.

319 Griffin v Galway City and County Manager, High Court, 31 October 1990, [1991] WJSC-HC 626.

320 Judicial Review Handbook, 7th Ed, 2020 p56.

R (London & Provincial Electric Theatres) v London County Council [1915] 2 KB 466.

Colbeam v DLRCC [2025] IEHC 437

“… probably hardly any decision of a body like the London County Council dealing with these matters could stand if every statement which a member made in debate were to be taken as a ground of the

decision. I should think that there are probably few debates in which someone does not suggest as a ground for decision something which is not a proper ground; and to say that, because somebody in debate has put forward an improper ground, the decision ought to be set aside as being founded on that particular ground is wrong.”

67. Lest that 1915 decision be thought outstripped in an age of more sophisticated, better advised and more legally aware councillors, I note that it was cited in 1991 in JL Thomas322 - a planning case - to the effect that, as to a collective decision, one must “consider the general tenor of their discussion rather than the individual views expressed by committee members, let alone the precise terminology used.” It was cited as recently as 2024 in Tesco v Reigate & Banstead.323 While perhaps not a rule, that one should prioritise “general tenor” seems sensible – not least as a reminder that what is ultimately in issue is a collective and political, as well as a legal, decision, for making which members may have had different and nuanced reasons. In making a development plan, such decisions are also an exercise in evaluative planning judgement. DAA v Fingal324 recognises both that making a development plan is both a legal and a political

decision and the practical realities of political debate.

68. It also seems to me that, perhaps paradoxically, the assumption, which no doubt is as justified in fact as it is in law necessary, that the vast majority of elected members take their duties seriously, perform them conscientiously and try to do so in accordance with law and on relevant considerations only, may on particular facts justify a view that the more egregious the irrelevant utterance of an errant councillor, the less likely it was material in the decision. In short, sensible councillors will ignore the obviously irrelevant.

69. Of course, this general observation should not be mischaracterised as a rule of law. Cases will turn on their particular facts and perhaps difficult issues may arise as to close votes. But the votes were far from close in the present case, so that possibility need not detain me. The value of the observation here is that it at least enables me to discount the apparent assumption of counsel for the Colbeam, in pursuit of his somewhat doctrinaire view of the law of irrelevant considerations, that a hypothetical decision would inevitably be quashed if a councillor had argued for a particular decision on the basis that the landowner was white. In short, such an egregiously discriminatory and irrelevant view will generally be ignored by his or her peers and be immaterial in the decision.

70. On the facts in Christian, Clarke J was not prepared to find the council’s reasons in “comments attributed to individual members, either at council meetings or otherwise”.325 I confess that I am not entirely clear why Clarke J took this view. In Killegland326 Humphreys J interpreted Clarke J’s view as particular to the

R (J L Thomas & Co Ltd) v Exeter City Council [1991] 1 QB 471, [1990] 1 All ER 413.

323 R (Tesco Stores Ltd) v Reigate & Banstead Borough Council [2024] EWHC 2327 (Admin).

324 DAA v Fingal County Council [2024] IEHC 589, [2024] 10 JIC 1702.

325 §87.

Killegland Estates v Meath County Council & Giltinane [2022] IEHC 393, [2022] 7 JIC 0106 §§94 & 95.

Colbeam v DLRCC [2025] IEHC 437

facts of Christian. Humphreys J did say however that “Broadly the principle is that courts should not look at

individual councillor’s opinions if they contradict the official record.” But, Humphreys J later pointed out (in

DAA v Fingal)327 that this view related to the issue of discernment of reasons, not to the issue of irrelevant considerations and in that regard he did analyse the transcript of the council meeting in question. However, as I have said, once one accepts that, to justify certiorari, irrelevant considerations must have materially supported an impugned decision and leaving aside the question of the degree of materiality required, I confess to doubting the substantive distinction between reasons and considerations.

Killegland

71. In Killegland, the impugned decision rezoned to community infrastructure use (as a public park) lands previously zoned residential. In so deciding, the councillors rejected their executive’s advice. The

decision was impugned, inter alia, for inadequate reasons and on the basis of regard to irrelevant considerations in making it. In the High Court328 the question of irrelevant considerations was disposed of fairly briefly.329 Humphreys J noted that “the legal advice provided to members was that only planning considerations could be taken into account and that non-planning considerations were, therefore, withdrawn.”

72. In the Supreme Court330 irrelevant considerations loomed larger. Hogan J gave judgment for a unanimous seven-judge Supreme Court. Having considered the adequacy of identification of the councillor’s reasons,331 he asked whether those reasons were valid planning reasons or whether the decision was tainted by irrelevant considerations. While the judgment could be read as suggesting that these were two distinct issues, in substance Hogan J analysed them as one and on the basis that the reasons, once identified, disclosed the considerations to which regard had been had. He considered Flanagan332 and Griffin,333 in each of which the court found that the councillors’ discussions of planning decisions disclosed regard to personal, and hence irrelevant, considerations and the impugned decisions were quashed accordingly.

73. In Killegland however, there was no suggestion that the zoning was adopted for irrelevant personal reasons. Hogan J noted334 that the reasons given for disregarding the executive’s advice were “for the most part” planning-based reasons. However, the minutes and the transcripts disclosed that at least some councillors believed that the Catholic Church owned the lands and that this was why no application to develop them had materialised. Councillors also wrongly believed that a “swap” – zoning other lands335 for residential use - was necessary to the de-zoning of the Killegland lands. In truth, they could have been dezoned on a stand-alone basis. These were irrelevant considerations. Hogan J said “… questions of the

327 DAA v Fingal County Council [2024] IEHC 589 [2024] 10 JIC 1702.

328 Killegland Estates v Meath County Council & Giltinane [2022] IEHC 393.

329 §§210 & 211.

330 Killegland Estates Ltd v Meath County Council [2023] IESC 39 §56. Cited in Pat O’Donnell & Co v Dublin City Council & Uniphar [2024] IEHC 671 §33.

I will address this issue in my consideration of Bartra below.

332 Flanagan v Galway City and County Manager [1990] 2 IR 66.

333 Griffin v Galway City and County Manager, High Court, 31 October 1990.

334 §83 et seq.

The Giltinane lands. The Giltinanes were notice parties.

Colbeam v DLRCC [2025] IEHC 437

identity of the owner of lands are in general an irrelevant consideration in planning matters. Planning and zoning decisions should, generally speaking, at least, be blind as to issues of ownership.”

74. However, Hogan J considered336 that, on the facts in Killegland and unlike in Flanagan and Griffin, “these considerations were not absolutely central to the de-zoning decision. On the facts of the present case, they were really at best marginal considerations, and they cannot be said to have thereby vitiated the overall

decision to de-zone.” It seems to me that “at best” might have read “at worst” – it is a matter of point of

view. Counsel for Colbeam says that it is not clear what test Hogan J in fact applied. I agree that there is a large range in the spectrum between “absolutely central” and “marginal” considerations. So this observation, adequate to that case on its facts, could arguably be said to have more generally left uncharted the watershed either side of which vitiation is, and is not, required.

75. Whatever else may be said of the foregoing as the ratio of Killegland, it at very least acknowledges that, as to vitiation of a decision for irrelevant considerations, their materiality counts – that is to say, the extent matters to which those considerations weighed in – provided reasons for – the impugned decision.

76. True, a rigorously logical view of the foregoing might suggest that Hogan J considered that taking irrelevant considerations into account will not vitiate a decision only where, as on the facts found by Hogan

J, they were “marginal” – to which principle the words “absolutely central” were merely a contrasting gloss.

However, that might be to read a judgment as if a statute. And in any event, Hogan J returned to these issues in his conclusion. His conclusion was that the councillors in Killegland, unlike those in Flanagan and Griffin, “took this decision principally for valid planning reasons in accordance with the” PDA 2000 and “did not have regard to irrelevant considerations in a manner which was material and central to their decision.” This observation suggests that, to vitiate a decision, the irrelevant considerations must be “material and central” to it. This view is also at least consistent with Hogan J’s observation that the reasons given by the councillors in Killegland for disregarding the planning advice of the officials were “for the most part” planning-based reasons. Hogan J did not repeat Humphreys J’s reference to the legal advice to the councillors.

77. As the foregoing implies, certiorari was refused in Killegland in both the High and Supreme Courts.

Bartra

78. Bartra concerned a challenge to the rezoning in the 2022 Development Plan,337 of Bartra’s land in the Bullock Harbour area of Dún Laoghaire Rathdown to exclude residential development – against the advice of the CE. Bartra unsuccessfully alleged failure to give adequate reasons, failure to take account of

336 §85.

by way of a Specific Local Objective.

Colbeam v DLRCC [2025] IEHC 437

relevant considerations, taking into account of irrelevant considerations, and improper discrimination or singling out of Bartra’s lands. Not merely was the general shape of the case similar to the present case – so too were the pleadings. The background was complex but somewhat similar to the present case in that it included permission by the Board,338 granted in the context of the 2016 Plan zoning, for waterfront development and harbour-related uses in which residential development was open for consideration. That permission was quashed in judicial review. A later planning application was refused by the Council and the Board – which refusal was awaiting judicial review at the time of the judgment on the dezoning issue.

79. Bartra emphasised that some councillors had referred at the relevant meetings to planning disputes concerning various planning applications that had been made as to the lands. Like me, Barry O’Donnell J had sight of a part-transcript - as relevant to the zoning of the Bartra land at the Council Meeting of 18 October 2021 at which the draft plan was adopted. At that meeting, on foot of a motion and despite the CE’s opposition, the Draft Plan was unanimously amended to exclude residential development for a reason later minuted as follows: “This particular location is not an appropriate location for residential, and to protect the heritage and recreational amenity of the area.” Bartra, via its expert advisors, made further submissions in the consultation process as to the draft plan in terms critical of both the councillors and their decision. They also submitted that as non-residential development would be unviable, if it were excluded the site would languish undeveloped. O’Donnell J had sight also of a part-transcript of the Council meeting of 9 March 2022 at which the 2022 Development Plan was, as relevant to the zoning of the Bartra land, in substance adopted. O’Donnell J339 gives a detailed account of the contributions of councillors to the debate on that occasion. The minutes recorded some, but not all, councillors’ views. Primarily, councillors’ concerns related to what they considered the established dangers of coastal flooding of the site in storms. Their decision was unanimous.

80. O’Donnell J set out340 his understanding of the law as derived, not least, from the judgment of Hogan J in the Supreme Court in Killegland and of Clarke J in the High Court in Christian. He first cited Killegland for its consideration of the extent of members’ obligation to give reasons for dezoning specific lands – particularly when against a CE’s advice.341 He cited342 Hogan J in Killegland to the effect that:

• Given the deliberative quality of the decision-making process, the reasons for a particular decision may “not necessarily be as neatly packaged and presented as would be in the case where, for example, reserved functions were discharged by the council qua planning authority”. They may be “expressed in different ways and at different times” as long as there is no real doubt as to what the main reasons on the main issues were.

• The duty of elected members when passing a resolution under their executive powers includes “an obligation to ensure that an adequate note was taken, not necessarily verbatim but of sufficient detail to permit a court upon review to ascertain the material on which the decision had been reached.”343

338 On appeal from the refusal by the Council and despite an Inspector’s report recommending refusal.

§42 et seq. §58 et seq.

340 §72 et seq.

341 §75 et seq.

342 §81.

Citing Finlay CJ in P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701 at 720–721.

Colbeam v DLRCC [2025] IEHC 437

• “The requirement to give reasons becomes more acute when the elected members depart from the recommendations of officials with professional expertise in the area of planning and zoning. While the members have an absolute entitlement to take a different view to that of the executive, a person affected, and the court, must be able to find the reasons for that departure.”344

81. The nature of the acuity here is not that the reasons for rejecting the executive’s advice must necessarily be more elaborate or detailed than reasons on other matters. As ever with reasons, the detail required of the main reasons on the main issues for rejecting the executive’s advice will be context-specific.

As O’Donnell J says, the acuity lies in the fact that in addition to the main reasons for the decision itself, the

additional need is that the reasons for rejecting the executive’s advice must be ascertainable. Where the council accepts the executive’s recommendation, its reasons can generally be found in that recommendation. But where the council rejects the executive’s recommendation, it follows that their reasons cannot be found in that recommendation. So they must be made available elsewhere.

82. O’Donnell J also considered the judgment of Hogan J in Killegland in detail as it related to the law of irrelevant considerations and to their materiality to the impugned decision as it bore on the vitiation, or not, of that decision. He didn’t expressly find the councillors’ references to the history of planning disputes irrelevant in law to the rezoning decision as to Bartra’s lands. But he clearly assumed so in holding that:

“… those matters clearly were not central to the decision. They were framed by the members as ancillary to the overall point that there were substantial planning reasons why residential development was not appropriate at Bullock Harbour. … Here the central reasons were very clearly based in concerns about the proper planning and sustainable development of the Bullock Harbour area.”345

O’Donnell J held that the rationale for zoning decisions “needs to be considered in its legislative context, but

also in the context of the overall process.” The reasons given made it “clear that the elected members had engaged with the essential thrust of those submissions, and that the principal reasons were valid planning reasons”.

83. It seems to me that Bartra is consistent with the interpretation of Killegland to the effect that taking irrelevant considerations into account will not vitiate a decision unless they were “material and central” to the impugned decision and the decision will survive if they were merely “ancillary”. Indeed, on that view it is unnecessary, to save the decision, that they have been “marginal”. It seems to me that ancillary support for a decision exceeds marginal support.

84. This view of materiality is consistent with Biehler’s346 view that the weight of materiality may vary according to the importance of the rights at issue – for example, it would weigh particularly in cases

344 Bartra §83.

345 Bartra §123.

Biehler, Judicial Review of Administrative Action, 3rd Ed’n, p99.

Colbeam v DLRCC [2025] IEHC 437

involving personal liberty. It is also consistent with London & Provincial Electric Theatres347 and the 1991348 and 2024349 cases in which it was cited.

Killegland/Bartra Obiter?

85. There was argument at the bar as to whether:

• Though in the conclusions section of the judgment a unanimous seven-judge Supreme Court, the view of Hogan J that there was “no basis in law by which the validity of that decision can properly be impugned”

was due, inter alia to that fact that the impugned decision was taken “principally for valid planning reasons in … and … they did not have regard to irrelevant considerations in a manner which was material and central to their decision” was obiter.

• If obiter, that view was transmuted to binding ratio by Bartra.

86. I think it was so transmuted. But if I am wrong, I am content to follow the obiter of a unanimous seven-judge Supreme Court.

DAA v Fingal

87. Colbeam cites DAA v Fingal350 as elucidating the test of materiality applied in Killegland.351 It related to the zoning of a sports complex operated by the Aer Lingus Social and Athletic Association (“ALSAA”) pursuant to a licence on DAA-owned lands at Dublin Airport. There was a background of dispute between DAA and ALSSA – a not-for-profit entity catering for the community generally in the area. DAA wanted the complex zoned Dublin Airport (“DA”) – which it was in the draft plan. A material alteration was proposed to rezone it as Community Infrastructure (“CI”) as ALSSA wished. DAA made a submission opposing CI Zoning.352 The CE agreed with DAA – giving a relatively lengthy reason, essentially adopting the lengthier DAA submission. The members zoned the complex CI.

88. While the transcript of the relevant meeting, as recorded in the judgment, ranged widely, the proper planning rationale for the decision appears to have been “sparse, to the effect that “[t]he CI zoning is most appropriate at this location, having regard to the existing facility here”.353 Though sparse, the reason was held adequate – if specifically in the context of a decision to rezone to render an existing non-conforming use in conformity with zoning.354 Humphreys J, in upholding the reasons given, observed that:

347 R (London & Provincial Electric Theatres) v London County Council [1915] 2 KB 466.

348 R (J L Thomas & Co Ltd) v Exeter City Council [1991] 1 QB 471, [1990] 1 All ER 413.

349 R (Tesco Stores Ltd) v Reigate & Banstead Borough Council [2024] EWHC 2327 (Admin).

Dublin Airport Authority v Fingal County Council [2024] IEHC 589 [2024] 10 JIC 1702.

351 Transcript Day 1 p128.

352 Set out at §20 et seq. of the judgment.

353 DAA v Fingal County Council [2024] IEHC 589 §28 & 63.

Ibid. §51.

Colbeam v DLRCC [2025] IEHC 437

“… more generally, the political, collective, deliberative nature of the decision-making process at issue in the adoption of material or other amendments to a development plan also made it impracticable for there to be elaborate reasons.”

“Another factor is the fact that there were 164 material amendments put forward. Given that the bar for reasons would have to be multiplied by that number of motions, one has to be realistic about how much detail is practicable without a disproportionate or impractical expenditure of energies. Analogously to how it was for Hogan J. in Killegland, the real question ultimately is whether the applicant could be in any real or genuine doubt about what the reason for the CI zoning is. The answer to that is clearly not.”

89. However and as stated, Humphreys J also, and separately, analysed the impugned zoning decision by reference to the law of irrelevant considerations as applied to a transcript of the councillors’ debate. Significantly, he cited Hogan J in Killegland to the effect that, in considering those debates:

“the mention of irrelevant considerations isn’t fatal in itself – that’s realistic because a collective group

of non-lawyer councillors debating a quasi-political issue in a political forum is almost never going to completely stick to a legal script. But the issue is whether the irrelevant considerations is marginal or more central. That involves a fact specific look at the particular comments made.”355

Humphreys J said:

“We have to be realistic in a political context about how much absolute discipline in comments a court could reasonably expect from an elected assembly. Some dubious or inappropriate comments at the margin shouldn’t be exaggerated into being central if they aren’t central.” 356

There is a distinct resonance here with the view of Pickford LJ in London & Provincial Electric Theatres.357 It is clear that Humphreys J agreed both that vitiation for taking irrelevant considerations into account was subject to a criterion of materiality and that transcripts required careful consideration by reference to that criterion.

90. Having considered the transcript before him, Humphreys J said: “In the light of the issues discussed above, all would have been well if the members at the critical meeting had not gone outside the stated planning rationale. However that didn’t happen.” Humphreys J set out an impressive list358 – all the more impressive for being explicitly non-exhaustive - of eight examples of councillors’ invocation of irrelevancies. Generally, they took ALSAA’s, and what they considered the community’s, side in the dispute with DAA. Two examples suffice: “… really and truly messages need to be sent to the daa that it is not an entity unto itself, and that they have to take into account the needs of the community, people, neighbours, and so forth” and “the daa do whatever the hell they want to do when it comes to noise.359 They just ignore residents and ALSAA as well.” Humphreys J was somewhat restrained in observing that the councillors had “pushed at the

Ibid. §75.

356 Ibid. §81.

357 R (London & Provincial Electric Theatres) v London County Council [1915] 2 KB 466.

358 Ibid. §76.

Presumably this was a reference to the well-known controversy as to the alleged effects of aircraft noise on residents local to Dublin Airport.

Colbeam v DLRCC [2025] IEHC 437

boundaries of what was permissible by referring to personal or non-planning factors” and these represented a “non-peripheral number of ‘personal’ … contributions on the motion.” He observed that some comments relied “on supporting a particular occupier and supporting that occupier in its dispute with daa” and that “Land use objectives are about a particular use, not supporting a particular user, or indeed about sending a message to a particular landowner.”

91. Humphreys J held that there was “just too much” irrelevant comment - neither so marginal nor peripheral as to be capable of being disregarded. That they were not part of the recorded planning rationale “isn’t a complete answer if regard actually was had to them”.

92. On its facts, the decision impugned in DAA was upheld as to the reasons given but quashed for consideration of irrelevancies.360 For my part, and on those facts, I find the decision of Humphreys J entirely unsurprising.

Legal Advice to Disregard Irrelevancies

93. Unlike in Killegland, in DAA v Fingal, no legal advice to disregard irrelevancies was given. That is also true in the present case. But it is difficult on the facts of that case to consider that to have been the only, or even the largest, fly in Fingal’s ointment. Humphreys J suggested, and I of course agree, that best practice would include such advice to councillors – both in general terms as to ignoring irrelevancies and specifically if specific irrelevancies are ventilated in debate. Humphreys J said “members need to be aware, and ideally reminded by officials, that only planning considerations and not personal considerations can be taken into account. Any dubious comments should be ideally identified and withdrawn.” The repeated word “ideally” is notable. In themselves, best practices are not hostages to legal fortune. They certainly improve public administration and their application is highly desirable. The best practices suggested by Humphreys J may save an impugned decision from certiorari which might otherwise have been granted. Their absence may, if only negatively, weigh in the balance when considering whether a ventilated irrelevancy had material effect. But they are not, and must not be elevated to, legal requirements.

Collection of the Foregoing

94. The cases are clear that materiality matters in considering certiorari for regard to irrelevancies. They deploy a varied lexicon in, negatively and positively, describing the degree of materiality that matters or

doesn’t – “ancillary”, “marginal”, “peripheral”, “primarily”, “principal”, “central”, “absolutely central”, “for

the most part”. This is to be expected in an area in which a precise test is probably impossible, and much, if not all, will turn on the context and circumstances of the particular case. In the end, it may be difficult to improve on the word “material”. Ultimately, and on the authority cited, I cannot accept that marginal or

DAA v Fingal County Council [2024] IEHC 589 §82.

Colbeam v DLRCC [2025] IEHC 437

merely ancillary regard by a decision-maker to an irrelevant consideration, represented by isolated undisciplined utterances of elected members, requires a hair trigger response by way of certiorari. No consideration of proportionate or practical judicial review of public law decisions appears to me to require such a course. On the other hand, I do not think that, before it will trigger certiorari, regard to an irrelevant consideration must be shown positively to have been “central” to the decision. Much less do I think that an applicant for judicial review need show as a probability that, but for regard to an irrelevant consideration, the decision would have gone the other way.

95. The application to highly variable fact-situations, and to transcripts of utterances of councillors making collective decisions, of arguably fine linguistic distinctions along an analytical spectrum of marginal, ancillary, immaterial, non-central, material and central, is in appreciable degree artificial. It follows that, not least as to collective decisions to which, often, a small minority of the decisionmakers will have actively contributed reasoning, the court’s analysis is likely to involve appreciable reasoning by inference as to the substance of the views taken by members, an appreciable and realistic latitude to the utterances of members and an exercise of significantly fact-sensitive and contextual evaluative judgement, standing back and taking an overview of the case.

96. At cost of adding to the lexicon in a difficult area but attempting to synthesise the cases, it seems to me that the question, as to the materiality of an irrelevancy to an impugned decision, is whether there is, on a conspectus of the admissible evidence and in all the relevant circumstances, an objectively reasonable belief that the irrelevant consideration was probably a real and significant reason for the decision - if only amongst others and not necessarily the primary reason. Put another way, was any real harm done to objectively reasonable confidence of the public and participants in the process in the propriety (as opposed to the merits) of the decision?

97. It is also relevant here to add that, as Humphreys J said in Ryanair DAC v An Bord Pleanála & DAA361

“A decision should be read “not solely from an applicant’s point of view (an impossible standard), but from the starting point of it being valid rather than invalid where possible. One has to stand back and ask what the decision is fundamentally saying ….. thus for example “unhelpful” statements should not be read as inconsistent with statutory factors if the decision can be read as valid …”

COLBEAM’S 8 PROPOSITIONS OF LAW

98. Counsel for Colbeam states 8 “propositions of law”362 as subtending his case as follows. My comments derive largely from my consideration of the law as set out above. It deserves initial emphasis that

361 [2025] IEHC 74. Citing O’Donnell & Ors v. An Bord Pleanála [2023] IEHC 381 §54, St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 §57

and E.M. v. Minister for Justice and Equality [2024] IESC 3.

Transcript Day 1 p59.

Colbeam v DLRCC [2025] IEHC 437

counsel commended his 8 propositions as a whole – as overlapping and interacting. As he put it, they “hang together”.363

Colbeam’s 8 Propositions of Law Comment i. In making a development plan, the This is correct.

Members must have regard only to relevant considerations.

ii. In the planning legislation, the This is correct.

Oireachtas has struck a balance between the powers and duties of various bodies and the rights of individuals.

When a planning authority animadverts Colbeam’s underlying assertion here is that it was on and seeks to upset that balance improper of the members to seek to secure the when making a development plan, it Colbeam Lands as open space specifically by so zoning takes an irrelevant consideration into it - where that zoning was:

account. • informed by the members’ perception that the Board excessively frequently and undesirably, in its planning permission decisions, especially SHD decisions, materially contravened the Development Plan.

• applied, in light of that perception and with a view to mobilising the statutory prohibition on the Board’s granting SHD permissions in material contravention of, specifically, zoning objectives.364

I consider this proposition further below.

iii. Considerations personal to a landowner As relevant here, this is correct.

(or former landowner) are irrelevant considerations for a plan-making body.

iv. The considerations taken into account This is correct.

by a planning authority, when making a But, as has been seen, not every remark invoking an development plan, may be ascertained irrelevancy will require certiorari of the decision in the from remarks by its members. making of which the remark was made.

v. In making a development plan, a In seeking certiorari, the applicant bears the onus of planning authority has taken an proving that:

irrelevant consideration into account • the consideration was irrelevant;

unless the consideration is properly • regard was had to it;

characterised as not having influenced • it materially affected the decision.

the decision.

Transcript Day 1 p114.

364 S.9(6) of the 2016 Act reads, in part, (a) Subject to paragraph (b), the Board may decide to grant a permission for a proposed strategic housing

development … even where the proposed development, or a part of it, contravenes materially the development plan.

(b) The Board shall not grant permission under paragraph (a) where the proposed development, or a part of it, contravenes materially the

development plan … in relation to the zoning of the land.

Colbeam v DLRCC [2025] IEHC 437

Colbeam’s 8 Propositions of Law Comment I have elaborated above the concept of materiality in this regard.

vi. As a zoning decision is made by a This is correct – though the word “some” should not be deliberative assembly, some latitude applied so as to excessively diminish the latitude must be afforded as to the provision of allowed.

a statement of reasons.365 As Hogan J observed in Killegland, reasons for collective decisions may not come “neatly packaged”. A common-sense approach is required - as is at least some faith in the capacity of the generality of members to ignore the irrelevant.

But the deliberative nature of the This is not a proposition of law. It is at most a general process means also that it will be observation on weighing evidence. And, at that, it is difficult for a deliberative assembly to over-elaborate. It seems to me to confuse rebut an inference that matters raised presumptions and inferences – though I accept that the at a meeting of the members were not usage of rebuttal as to both is common. But, strictly, taken into account. only presumptions may be rebutted. Inferences are either drawn or they are not. They are not drawn and then rebutted.

Whatever the weight of this proposition in general terms, it yields to the propositions that:

• The question is not whether an inference is to be rebutted. It is whether the inference is to be drawn.

• The onus of proof that an inference of material effect should be drawn remains at all times on the applicant for judicial review.

• The obligation is to form an overall view, on a conspectus of the evidence and in light of all relevant circumstances, whether the inference should be drawn. Or, to put it another way and more simply: the obligation is to ask on that conspectus and in that light, what were the reasons for the

decision? You stand back, look at the decision as a whole, read it as valid if reasonably possible and ask yourself what does it mean?

Notably, when pressed that this proposition amounted to an assertion that it will be difficult for a deliberative assembly to rebut an inference that “any matter”

raised at a meeting required certiorari if an irrelevancy, counsel for Colbeam demurred.366 He did so on the

365 The terms of this proposition were clarified at hearing – Transcript Day 2 p70.

Transcript Day 1 p109.

Colbeam v DLRCC [2025] IEHC 437

Colbeam’s 8 Propositions of Law Comment basis that the proposition had to be considered in the context of the other propositions he put. I accept that as a general proposition but remain unclear how it answers my question.

vii. As to whether regard was had to a This approach clearly informed the decision in consideration, the identity of the Flanagan,367 in which Blayney J, as to personal person raising it is relevant. considerations irrelevant to the planning decision at In particular, if it is raised by the person hand, said “And since these matters were referred to by moving the motion, it is more likely that the proposer and seconder, and advanced as reasons it was taken into account. for passing the resolution, they must have been taken into account by the members of the County Council in coming to their decision …”.

However, I do not think Blayney J intended this remark as a proposition of law – much less a proposition of law to be mechanistically applied. In fairness, counsel’s proposition does not go that far. In my view, Blayney J was making a contextualised observation on the proper inference to be drawn on the evidence before him.

Notably as to context, his observation was followed by a further observation, as to an earlier meeting of councillors and the applicant for permission, the effect of which, Blayney J considered, had been such that “it would have been virtually impossible for the members … to exclude from their minds … how the applicant would be personally affected if they did not pass the resolution.”

All being equal, counsel’s proposition is not generally unreasonable as to weighing evidence and a proposers’ arguments are likely to be thought influential. But an entitlement in the court to draw a particular inference should not be confused with a “test”. It does not, per se, imply an obligation to draw that inference.368 All is often not equal. An inference of material effect is made on a conspectus of the evidence and on consideration of all the circumstance. Context is usually vital.

viii. Where a planning authority contends This is correct. And the executive gave no such advice that a consideration raised in debate on in the present case.

367 Flanagan v Galway City and County Manager [1990] 2 IR 66.

368 Transcript Day 1, p139. Counsel for Colbeam said “… the Court is entitled to draw an inference that they affected the decision-making process. And

that, in my respectful submission, is the correct test” citing “Killegland and DAA in the round”. However, in fairness to counsel, I should record that he

went on to submit that, on the evidence, I was obliged to draw the inference that the members had taken irrelevancies into account.

Colbeam v DLRCC [2025] IEHC 437

Colbeam’s 8 Propositions of Law Comment a motion was not taken into account, it will be assisted if its executive expressly In Killegland, Hogan J did not repeat Humphreys J’s advised the members that the reference to legal advice to the members. That is not to consideration should not be taken into say it was irrelevant. It is merely to observe that Hogan account. J did not consider it necessary to refer to it. As I have said, it is difficult to see on the facts of DAA v Fingal that the absence of such advice was crucial. Though, of course, had such advice been given the error may never have occurred. Humphrey J in DAA v Fingal, unsurprisingly and semble, commended the giving of such advice as best practice. He did not lay down a rule of law that such advice must be given in a given case on pain of the invalidity of the resultant decision. Nor, in fairness, did counsel for Colbeam seek to go that far.

The absence of such advice merely negatively deprives the planning authority of evidence which could have been useful to it, even decisive, in its favour. Such absence does not, per se, positively suggest that regard to an irrelevant consideration had material effect.

Counsel for Colbeam agreed.369

An inference of material effect is made on a conspectus of the evidence and in light of all the circumstances and the onus of proof at all times remains on the applicant for judicial review.

99. In fairness to counsel for Colbeam, I should record that, whereas he had introduced370 his 8

propositions as “of law”, in reply371 he said that when I look at the primary facts and the issues brought up in

debate, I am entitled to and should infer that they were taken into account unless something to the contrary is shown, but am not obliged to so infer. I accept counsel’s view that the presumption of validity cannot displace a proper evidential inference. However where, as is not infrequently the case, multiple views or inferences are reasonably possible, the presumption of validity may well require preference of the view which validates a decision over that which would invalidate it.

369 Transcript Day 2 p79.

370 Transcript Day 1 p59.

Transcript Day 2 p189.

Colbeam v DLRCC [2025] IEHC 437

WERE THE IMPUGNED CONSIDERATIONS IRRELEVANT?

MORAL OBLIGATION

100. As has been seen, at the Council meeting of 18 December 2020, at which the Draft Development Plan was adopted, Cllr Saul, in proposing Motion 124 for open space zoning of the Colbeam Lands, argued that “there is a moral obligation on the Order, but also on the planning system because … 25% of the OLG Campus should be available to the local community”. In my view, the reference to a moral obligation on the planning system is not objectionable. One should not take too precious a view of language: it amounts to no more than an assertion that, specifically as planners, the councillors should do the right thing.

101. But the assertion that the councillors should be moved to rezone because of a “moral obligation on the Order” to provide open space is in a different category.

102. Though Hogan J noted the point in Killegland as relevant on the facts of that case, I leave aside here that the Order were former, not current, owners of the Site. I do so as the underlying point being made by Cllr Saul, I think, was that the zoning of the Colbeam Lands should be understood in the context that the INST Objective had long-since applied to the entire OLG Campus and, as Simons J held in Redmond #1, sale of part of that Campus could not alter the effect of the designation on the entire, including the sold part. Indeed, that seems to me an aspect of the application of the principle, noted by Hogan J in Killegland, that planning decisions should generally be blind to ownership.

103. To paraphrase Humphreys J in DAA v Fingal: land use objectives are about a particular use, not about supporting or, for that matter, making demands on a particular user or about sending a message to a particular landowner.

104. I think that Cllr Saul may be in some degree forgiven for observing, by reference to the long-standing INST Objective, that the Order had a moral obligation, as do we all, to accept, at least generally and as it affects our lands, the outcome of the democratic and legal process of making a development plan. Of course, that obligation has considerable legal, and so moral, limits – for example judicial review is possible - as are permissions in material contravention of development plans.

105. But it would be naïve to ignore the reality that the attribution of moral duties to religious orders has a particular and generally understood resonance given their combination of:

• raisons d’être, religious ethos and moral profession;

• historical recourse, ultimately, to funding by the contributions of the faithful;

• frequently, charitable status;

• frequent associations with, and ownership of, institutional lands, used historically for essentially charitable and public or quasi-public purposes and which, for various reasons, have come into

Colbeam v DLRCC [2025] IEHC 437

considerable focus in the planning system as having potential for other and various forms of alternative use and for development accordingly. That, not unusually, renders them valuable in monetary terms.

106. There are many and various views, reasonable or not but many genuinely held, as to how society should manage such assets and as to the uses to which they should be put. One such view is given force in Article 44.2.6 of the Constitution.372 The weight and the expression in politics and in law of such views may well change over time. However, in specifically the land-use planning code and context, and to the extent that such views may be grounded in a view of the moral obligations of religious or educational bodies, qua landowners, and as bears on the use of their lands in accordance with proper planning and sustainable development, such views are irrelevant – they are not proper planning considerations. A moral obligation of the owner as to the use to which to put its lands is not a consideration relevant to a planning judgement as to the use to which those lands should be put.

107. While Cllr Saul’s remark was not personal to any person or member of the Order, in my view it was at least analogous to such an observation. By invoking the alleged moral obligation of the Order, Cllr Saul invoked an irrelevant consideration.

OUTMANOEUVRING THE BOARD

108. Colbeam did not use the phrase, “outmanoeuvring the Board”. But it reasonably encapsulates Colbeam’s point, if understood as alleging an improper purpose in, or regard to an irrelevant consideration by, the elected members in dezoning the Colbeam lands in order to stymie, as concerns those lands, a perceived tendency in the Board to excessively exercise its power to grant planning permissions in material contravention of the 2016 Development Plan. In this respect, Colbeam relies on the transcript of December 2020 in which Cllr Saul criticised the Board as “overturning” the 2016 Development Plan and observed that the Board do not and cannot overturn zonings. Colbeam characterise Cllr Sauls’ remarks as irrelevant considerations in that they represent an improper purpose to stymie not merely the Board but the legislative scheme of the planning code and the distribution by the Oireachtas of powers, competencies and functions

within that code. In similar vein, they criticise Cllr O’Leary’s assertion, of the Commission, that the only thing

they will respect is the zoning and that as a result of “dysfunctional planning legislation” the Council has to rezone land because the Board will not uphold our Development Plan.

109. The statutory context and chronology here needs a little teasing out.

• By s.37(2) PDA 2000, the Board may, on appeal from a planning authority, grant planning permission in material contravention of the development plan. It is restricted in doing so only if the planning authority

372 6° the property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on

payment of compensation.

Colbeam v DLRCC [2025] IEHC 437

has refused permission for reasons of material contravention.373 It is not restricted by reference specifically to zoning.

• As to specifically SHD permissions, such as that quashed in Jennings over two years after the meeting of December 2020, the Commission, by s.9(6) of the 2016 Act could not grant SHD permissions in material contravention of a zoning objective. It must be said that the 2016 Act, as to SHD permissions, was temporary. The specified period, set in 2019, within which SHD planning applications could be made expired on 31 December 2021.374 However, it should be noted that it is yet to be decided whether the SHD permission quashed in Jennings is to be remitted to the Commission. If it is, it will be decided under the 2016 Act and by reference to the 2022 Development Plan – see Crofton.375

• The LRD process,376 which can be thought of as having replaced the SHD process, reverted, as concerns the Commission’s powers to grant permission in material contravention of a development plan, to the position under s.37(2) PDA 2000 set out above. That is to say, on satisfaction of any other applicable conditions, it may grant permission in material contravention of zoning objectives.

110. As to the meeting of 18 December 2020, at which the impugned remarks were made:

• It seems realistic to infer that the remark that the Commission cannot overturn zonings and the reference to dysfunctional planning legislation related to the 2016 Act. The observation could not accurately be made of the regime of the PDA 2000 and I can take judicial notice that the SHD process was being widely availed of at that time – controversially in the view of some.

• Colbeam’s SHD Application for student accommodation had yet to be made – but a pre-application consultation had occurred of which, it seems likely, the members were at least generally aware.377

• The SHD regime was to expire on 31 December 2021 – in the sense that new SHD applications could not be made thereafter but pending applications would be decided.

• The new Development Plan was not to take effect until April 2022.

• Thereafter, it would apply to then pending SHD Applications. While Crofton378 had not yet confirmed it, that had long been the conventional view.

373 In that instance it may grant planning permission in material contravention only if one of a list of criteria is satisfied. 37(2)(b) lists (i) the proposed

development is of strategic or national importance, (ii) there are conflicting objectives in the development plan or the objectives are not clearly stated,

insofar as the proposed development is concerned, (iii) permission for the proposed development should be granted having regard to regional spatial

and economic strategy for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in

the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or (iv) permission for the proposed development

should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan.

374 The Planning and Development (Housing) and Residential Tenancies Act 2016 (Section 4) Order 2019 (S.I. No. 598 of 2019) extended the specified

period from 1 January 2020 to 31 December 2021.

375 Crofton Buildings v An Bord Pleanála [2022] IEHC 704, [2024] IESC 12.

376 Large-scale Residential Development – introduced by the Planning and Development (Amendment) (Large-scale Residential Development) Act 2021.

377 Jennings & O’Connor v An Bord Pleanála & Colbeam 2023 IEHC 14 §§1 & 599. As to the Council’s awareness, see s.6(4) of the 2016 Act.

Crofton Buildings v An Bord Pleanála [2022] IEHC 704, [2024] IESC 12.

Colbeam v DLRCC [2025] IEHC 437

• However, there was every prospect that, as in fact occurred, Colbeam’s contemplated SHD application would be decided before the new Development Plan took effect – as it was, in June 2021.

• Members would, I infer, have been aware that the 2022 Development Plan could not deprive a landowner of the benefit of a permission already granted.

• Members would, I infer, have been aware in general terms that judicial review of any SHD permission could result in its quashing and remittal to the Commission for redecision after the 2022 Development Plan took effect.

• So it was possible that Colbeam would have a valid SHD permission before the 2022 Development Plan took effect and which could not be affected by it. It was also possible – though considerably more contingent – that the Board would come to consider a remitted quashed SHD permission by reference to the 2022 Development Plan.

111. Attempting to retrofit and impute analysis of these multiple contingencies to the collective mind of the members generally in December 2020 is a fools’ errand. Nor, it seems to me can they be illuminatingly projected onto the SHD Permission granted in June 2021, save perhaps as to the likelihood, considered at the adoption of the 2022 Development Plan, that the 2022 Development Plan would not affect it if it was granted. In summary, it seems to me that too fine an analysis is unreal. All that can usefully be said of the members’ collective mindset in December 2020 is that rezoning the land as open space might at some point prevent the Board from granting permission for developing the Colbeam Lands contrary to its open space zoning.

112. As I have said, Colbeam characterise Cllr Sauls’ remarks as irrelevant considerations in that they represent an improper purpose, and so, regard to an irrelevant consideration, to stymie the legislative scheme of the planning code and the balance of, and distribution by the Oireachtas of, functions and powers within that code by zoning the Colbeam lands to frustrate the Commission’s power to grant planning permissions in material contravention of the 2022 Development Plan pursuant to the 2016 Act. While it has some logic to it, I reject that characterisation for the following reasons:

a. First, while multiple reasonable views may be possible of what constitutes proper planning and sustainable development of particular lands, a development plan, as it applies to a particular area or site, represents at very least the authoritative evaluative judgement of the planning authority and the starting premise as to what constitutes its proper planning and sustainable development.

b. Second, the importance and solemnity of the development plan, as an environmental contract (McGarry)379, has been acknowledged repeatedly by the Superior Courts and its material contravention is in law, if not in practice, exceptional and no small matter.380

379 AG (McGarry) v Sligo County Council [1991] 1 IR 99 – and many cases since.

380 Protect East Meath Ltd v An Bord Pleanála & Rockmill [2025] IEHC 276; Ballyboden v An Bord Pleanála [2022] IEHC 7; Residents of Coolkill v An Bord

Pleanála & Midsal Homes [2025] IEHC 265.

Colbeam v DLRCC [2025] IEHC 437

c. Third, there is nothing unusual in a planning authority and the Commission differing as to what constitutes proper planning and sustainable development of a particular area or site. Indeed, the system of planning appeals is premised on that possibility. I see no reason to consider that the elected members must in law be naïve to that premise. Nor do I see why they should not take a view that the working out of tensions as between those differing views of proper planning and sustainable development has in practice proven unsatisfactory in particular respects.

d. That is particularly so as their role in adopting a development plan is not merely legal. It is based on evaluative planning judgement informed by a very lengthy and iterative process of public consultation. It is expected to be responsive to community needs and views – not least the views of those who will live and work in the area in question. It must also have regard to national priorities – as reflected, for example, in ministerial guidelines and the views of the OPR.381 As it is a explicitly a development plan, those who would develop lands are obvious stakeholders. Overall and importantly, a development plan is, as was said in Byrne v Fingal,382 an environmental contract “answerable to public confidence”. And making a development plan is a function reserved by the planning code to the elected members. For all these reasons it can be said, in short, to be not merely a legal but also, and importantly, an evaluative political process. It is an exercise of political power by a democratically elected and constitutionally established organ. It is for those very reasons that the courts “must be very slow to interfere with the democratic decision of the local elected representatives entrusted with making such decisions”. 383 e. As Humphreys J observed in O’Donnell,384 citing the explicit recognition of the role of local authorities in Article 28A of the Constitution,385 local autonomy in the preparation of the development plan is presumed - and specifically so in the framing of zoning objectives.

f. Of course in the exercise of that power, the members must behave within the law. But I see no reason why they should be required to behave non-politically - must hold themselves unaware of and uninfluenced by the potentials and limits of their powers or of their interactions with the potentials and limits of the powers of other organs within the statutory structures. It seems to me that such an attitude would be unreal politically, impossible in practice to police in law, generative of unnecessary and unproductive litigation and would be fairly criticised. Being impossible to police, it would amount to a legal fiction – and legal fictions are to be minimised. Counsel for the Council was correct in submitting that members have an accumulated knowledge of the workings of legislation and the workings of specific planning decisions and in a political process the members are entitled to bring to bear their experience, understanding and knowledge of how the planning processes work and, provided it's done lawfully, they may zone land in accordance with their own preferences.386 g. There seems to me no legal requirement for naiveté on the part of the elected members – no legal reason why they should not be conscious that in zoning land they thereby restrict the Board’s power

381 The Office of the Planning Regulator.

382 Byrne v Fingal County Council [2001] 4 IR 565.

383 Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, citing Malahide Community Council Ltd v Fingal County Council [1997] 3 IR 383

at 397.

384 O'Donnell v An Bord Pleanála & Drumakilla [2023] IEHC 381.

385 Citing also R (Norwich City Council) v Secretary of State for the Environment [1982] QB 808, [1982] 1 All ER 737, [1982] 2 WLR 580, 80 LGR 498, 126

Sol Jo 119; and Cork County Council v Minister for Housing, Local Government and Heritage [2022] IEHC 281, [2022] 5 JIC 2701.

Transcript day 2 pp54 & 55.

Colbeam v DLRCC [2025] IEHC 437

under the 2016 Act to grant SHD permissions. And while the court must uphold the law, including the 2016 Act, I do not consider that naiveté is required of the court either – as to the existence of a widespread and respectable political view that the 2016 Act was not a success – or even was dysfunctional. That is not to say that I should adopt that view. But I cannot see that the court should be precious in interfering with the democratic and political decisions of elected members of local government as to how best to use the levers provided to them by statute to best advance in their development plan what they consider to be, in their evaluative judgement, the proper planning and sustainable development of their functional area.

h. Clearly, and as recognised in Jennings, the 2016 Act was, as to SHDs, a response to the housing crisis.

But I do not see that the Impugned Decision is to be regarded in law as an illegal attempt to frustrate that response. That legislative response explicitly and, as far as I am aware, uniquely, prohibited SHD permissions in material contravention of zoning objectives. No doubt that prohibition was imposed for good reason – by way of recognition, as a matter of law and as representing articulation of the policy of the Oireachtas and the Government, of the proper prerogatives of the members of planning authorities and by way of calibrating the balance between their powers and those of the Commission in the specific context of the SHD process. The unique prohibition of SHD permissions in material contravention of zoning objectives was, as was the temporary nature of the 2016 Act, intend by the Oireachtas to counterbalance in some degree the very considerable transfer of power to the Board by the 2016 Act inasmuch as it, in essence, suspended the normal decision-making role of planning authorities as to such developments. It seems to me that the insertion by the Oireachtas in the 2016 Act of the particular prohibition, special to that SHD statute, of the grant of SHD permissions in material contraventions of zoning objectives represented, in the context of an unusual and temporary permission system which ‘skipped’, as it were, the usual planning application first to the planning authority, a deliberate recognition of the importance of the proper prerogatives of planning authorities as to zoning. I see no reason why the members should be the only ones expected to be unconscious of those prerogatives.

i. I do not see it as an improper motive (as Colbeam submits) on the members’ part that they pursued their view of the proper planning and sustainable development of their functional area by availing of the zoning powers granted them by statute and of the deference to the exercise of those powers made explicit in the 2016 Act.

j. Colbeam’s submission that the members failed to appreciate that the Commission could grant permission in material contravention of the development plan, only if this was consistent with proper planning and sustainable development, such that there was no “warrant” for an interference with the Board’s statutory functions, is grounded in the misconceptions either that there is only one possible view of proper planning and sustainable development or that the Commission’s view must invariably prevail. As I have said, what is or is not consistent with proper planning and sustainable development is a matter of evaluative judgement on which the members and the Commission may reasonably differ. And while the Commission’s view may ordinarily prevail, the 2016 Act is explicit that the planning authority view is to prevail as to material contravention by SHDs of zoning objectives. To put it another way, by and to the extent of its adoption of zoning objectives, the members were entitled, specifically by the 2016 Act and as to SHD developments, to bind the Commission to their view of proper planning and sustainable development as it related to their

Colbeam v DLRCC [2025] IEHC 437

functional area. This they may do in accordance with their competence, supplied by the 2016 Act and ultimately by Article 28A.1 of the Constitution to exercise and perform “at local level powers and functions conferred by law”.

k. Further, it is significant that the function of zoning, by s.10(2), is precisely to identify lands “for the use solely or primarily of particular areas for particular purposes”. See generally O’Donnell,387 as the question “What is zoning”? One of the zoning uses statutorily identified by s.10(2) is “open space”.

And that is precisely what the impugned zoning in the present case stipulates. Remembering that whether an objective is a zoning objective is a matter of substance not of form – Redmond388 - it bears observing that Colbeam does not suggest, for example, that the impugned objective has been artificially deemed, contrived or characterised as a zoning objective or is other than a zoning objective properly so-called. Nor could it have so suggested.

l. In addition, and considering the statutory authorisation of open space zoning in context as a matter of statutory interpretation, one must, I think the Council correct to cite, as expressing planning considerations broadly resonant with the members’ views, s.10(2)(d), (j) & (l) PDA 2000 which require a development plan to include objectives for:

▪ “the integration of the planning and sustainable development of the area with the social, community and cultural requirements of the area and its population”;

▪ “the preservation, improvement and extension of amenities and recreational amenities”; (note that amenities need not be recreational); and ▪ “the provision, or facilitation of the provision, of services for the community including, in particular, schools, crèches and other education and childcare facilities”.

m. The same can be said of the Council’s citation of:

▪ Part III of the First Schedule DA 2000 as to “[f]acilitating the provision and siting of services and facilities necessary for the community” including “recreational facilities and open spaces”.

▪ Part III of the First Schedule DA 2000 as to “[r]eserving land as open spaces, whether public or private”.

▪ The Development Plan Guidelines389 as to the “provision of public open space”.

n. Finally, it must be remembered that it is wrong to view the impugned zoning decision solely through the prism of the SHD legislation. It always remained open to Colbeam – indeed remains open - to apply for planning permission via the ordinary planning application system or, latterly, the LRD permission system.390 In those contexts, zoning does not bind the Commission as it did under the 2016 Act.

O'Donnell v An Bord Pleanála & Drumakilla [2023] IEHC 381 §61.

388 Redmond v An Bord Pleanála & Durkan Estates [2020] IEHC 151, [2020] 3 JIC 1003 §67.

389 Development Plan Guidelines for Planning Authorities (June 2007) at §4.58, p62 (since superseded).

390 Large-scale Residential Development as introduced by the Planning and Development (Large Scale Residential Developments) Act2021 by way of

amendment of the PDA 2000.

Colbeam v DLRCC [2025] IEHC 437

Outmanoeuvring the Board – Conclusions as to Relevance and Fettering

113. It appears to me, for these reasons, that regard by Cllr Saul to the potential for the Council, by an otherwise legitimate use of zoning of the Colbeam Lands for particular use of open space, to address what he considered to be the differing views of the Council and the Commission as to material contravention of the 2016 Development Plan, did not constitute regard to an irrelevant consideration. It merely contemplated the exercise of the Council’s proper powers in advancing its view of the importance of and the substance of the proper planning and sustainable development of the Colbeam Lands – that is to say, as open space.

114. Colbeam alternatively formulated the issues I have just canvassed as an ultra vires attempt by the councillors, by zoning its lands for open space, to “fetter” the discretion of the Council Executive and the Commission in any future planning application. I do not think this reformulation alters the analysis. And precisely that formula failed in Bartra.391

115. Perhaps most importantly as to the members’ motive and purpose, in my view it was not, at base or per se, to outmanoeuvre or fetter the Board. That view confuses means and tactics with strategy and ends. At base, the members’ motive and purpose was the substantively legitimate planning purpose of preserving the Colbeam Lands as open space. Zoning was the means of doing so in the face of a perception (correct or not) that the Commission would otherwise frustrate that purpose.

116. This is not a case analogous to Christian392 - in which the relevant development plan provision was to the effect that permission would not be granted for any development which materially contravened a Z15 zoning. It applied only to Z15 zoning. As the members’ entitlement393 to deviate from the development plan by granting a permission in material contravention of a zoning objective was “enshrined in statute”, Clarke J interpreted the development plan provision as conveying the members’ prejudgment of any application for such a permission and as, perhaps, a warning that no such applications would be entertained. He observed that the members have a statutory discretion to grant a material contravention permission and cannot deprive themselves of it. On that basis, the relevant development plan provision was clearly an unlawful fettering of the members' own discretion and was quashed.

117. Indeed the concept of unlawfully fettering discretion is really one of prejudgment. It usually applies to an anticipatory decision of a public authority to fetter the future exercise of its own discretion before it is in law called upon to exercise that discretion and apprised of all considerations relevant to that exercise. It is not a concept usually applied to an otherwise lawful exercise of its powers which may in effect limit or affect the exercise of discretion by others. Such exercise of powers is entirely commonplace in administrative law. For example, one may think of SPPRs.394

391 Bartra §7.

392 Christian v Dublin City Council [2012] IEHC 163.

393 Albeit via an onerous statutory procedure.

394 A Specific Planning Policy Requirement in a Ministerial planning Guideline issued under s.28 PDA 2000.

Colbeam v DLRCC [2025] IEHC 437

118. So, some fetters are unlawful and others are lawful, some are tighter and others looser - Jennings.395

It is of the nature of a development plan generally and its zoning objectives in particular to “fetter” – which

is merely to say “limit” or impose conditions on – the discretion of a decision-maker in a planning application. In the case of the Commission, and save in SHD applications, the fetter is often far from tight. Put simply, if in their discretion as the primary arbiters of what, as a matter of the policy to be laid down in their development plan, constitutes proper planning and sustainable development, the members consider that particular lands should be zoned for a particular use type, it is to be presumed that such zoning reflects the members’ appreciation of:

• The legal and practical significance of such zoning, including the extent to which it may limit or impose conditions on the power to grant permissions in material contravention of such zoning.

• Their views of the importance of applying that legal and practical significance to the lands in question and as to such use.

The Council’s submissions put it simply and correctly: the effect of the zoning the lands ‘F’ and ‘INST’ on

planning decisions, including decisions of the Commission, was a relevant consideration for the members. Indeed, it would be a cause for criticism if, in some unreal world, members were required to make zoning decisions ignorant of their legal and practical significance. I agree with the Council that its members were entitled to take into consideration that by rezoning the land ‘F’ there would be less scope to permit development inconsistent with the protection afforded to open space by the ‘INST’ designation.

119. While it is not part of my reasoning and does not inform my decision, I would add by way of comment that, if I am wrong in this respect and as the 2016 Act and its prohibition of material contravention of zoning objectives are fast withering on the vine, I am likely wrong as to a very small number of instances (if any other than the present) in which the coincidence arises that an SHD planning permission decision remains to be made as to a site rezoned allegedly to hamstring the Commission in making that specific

decision.

120. For these reasons I reject the allegation of regard to irrelevant considerations in this respect.

OWE IT TO THE COMMUNITY

121. Colbeam criticises, as the invocation of an irrelevant consideration, Cllr O’Leary’s assertion in December 2020 that “the planning has not worked and we owe it to the schools, the kids in the schools and the kids and families in wider areas to try and secure and do our very best to fight for at least the 25% on the

total site.” The Council answers this simply enough: “That is a relevant planning consideration.” On its face,

the Council is undoubtedly correct. Colbeam is entitled to disagree – even vehemently - as a matter of planning judgement and planning merit and by reference to what it considers to be the facts. But that difference of view is not a basis for certiorari.

Jennings & O’Connor v An Bord Pleanála & Colbeam [2023] IEHC 14.

Colbeam v DLRCC [2025] IEHC 437

122. To criticise Cllr O’Leary by reference to the letters from the schools to the effect that they did not need the Colbeam lands is anachronistic – they were not submitted until February 2001. And the submissions to the Council in April 2021 of the Roebuck Residents’ Association396 and Our Lady’s Grove Primary School Parents Association397 are in essence to the contrary effect. It was for the Council, it is not for me, to choose between them on their merits.

WAS REGARD TO ALLEGED MORAL OBLIGATION MATERIAL?

123. As I have said, by invoking the alleged moral obligation of the Order, Cllr Saul invoked an irrelevant consideration. He should not have done so. However, and though he was a proposer of two of the motions, he was the only one to do so. Given he did so, he did so explicitly only once and it is difficult to consider that he could have done so in any lesser degree. There is no doubt however, that the great thrust of such debate as there was on the motions was directed to the simple propositions that:

• The INST Objective of the OLG Campus had long-established the Council’s view that the proper planning and sustainable development of the area required both the maintenance of the open character of the OLG Campus and the maintenance of 25% of it in open space.

• The realisation of those aims required the zoning of the Colbeam Lands as open space.

There is no suggestion that these were not valid planning considerations and they were at very least the primary considerations which informed the zoning decision.

124. I have attempted above to collect conclusions from the caselaw as to the materiality to an impugned

decision of the consideration of an irrelevant consideration. Whatever view one takes as to what ought to be the proper formulation of the law in this regard, I see no reason to infer from Cllr Saul’s single remark that the irrelevant issue of moral obligation formed a material element of the members’ considerations and/or reasons in zoning Colbeam’s lands as open space.

125. Even if his later remark that “the reason why it is not currently is use is because it was sold, and the Order and owners of the land did not protect, and did uphold the designation and they sold it” is seen as of a piece with Cllr Saul’s reference to moral obligation, I consider that it or they can be viewed as marginal, merely ancillary, non-central or as an isolated undisciplined utterance not hair-triggering certiorari. In view of the analysis which I propose of materiality of regard to an irrelevant consideration, I consider that there is not, on a conspectus of the admissible evidence and in all the relevant circumstances, an objectively reasonable belief that the alleged moral obligation of the Order was probably a real and significant reason

396 B0529 - Affidavit of Louise McGauran, sworn 28/11/22, §102 & exhibit LMCG1 Tab 43.

B1134 - Affidavit of Louise McGauran, sworn 28/11/22, §102 & exhibit LMCG1 Tab 47.

Colbeam v DLRCC [2025] IEHC 437

for the decision. Nor was any real harm done to objectively reasonable confidence in the decision on the part of the public and participants in the process.

126. I have set out and commented on, in the Chronology above, the views expressed in debate on these issues. Contrasting those views, including Cllr Saul’s, with the facts of DAA v Fingal in which the repetitious invocation of the irrelevant dispute between DAA and ALESSA readily demonstrated its materiality to the members’ decision in that case, serves to illustrate that Cllr Saul’s error cannot be seen as material. This seems to me to be a case in which the observation of Pickford LJ London & Provincial Electric Theatres, cited above, applies. Put another way, the facts here are closer to Killegland and Bartra than they are to DAA v Fingal.

CONCLUSION - GROUND 3 – IRRELEVANT CONSIDERATIONS

127. It follows from the reasoning set out above, that Ground 3, alleging material regard to irrelevant considerations, fails.

GROUND 2 – FAILURE TO CONSIDER PROPER PLANNING AND SUSTAINABLE DEVELOPMENT & RELEVANT CONSIDERATIONS

G2 – STATEMENT OF GROUNDS & COLBEAM’S POSITION

128. Core Ground 2 alleges that

“The Decision is invalid, ultra vires, unlawful, irrational and/or unreasonable because the Council failed to consider, whether properly or at all, the proper planning and sustainable development of the area to which the development plan relates, in breach of section 12(11) of the Planning Acts and/or failed to have regard, properly or at all, to relevant considerations including:

(a) the Board’s determinations of 2 July 2020 (ABP-304420-19) and 3 June 2021 (ABP-309430-21)

that residential use at the Colbeam Lands398 is consistent with proper planning and sustainable development;399

(b) the evidence of the Chief Executive that the Colbeam Lands400 do not function as an area of public open space,

398 The Pleading refers to the “Grove Lands”. I have amended the reference to conform to the nomenclature adopted at trial and in this judgment.

399 I have reworded this plea without changing meaning.

400 As noted earlier, the plea refers to the “Grove Lands”. I have amended the reference to conform to the nomenclature adopted at trial and in this

judgment.

Colbeam v DLRCC [2025] IEHC 437

the evidence produced by Thornton O’Connor Town Planning that the Colbeam Lands have never comprised public open space, and that the desired public open space, as provided for in the New Plan, cannot be achieved without a residential development; and,

(c) the evidence produced by KPMG that open space zoning is not necessary at the Colbeam Lands”.

129. As intimated at the hearing to no objection, and by reason of the Order 84 RSC requirements of precision and particularity in pleading in judicial review, I disregard the word “including” in Core Ground 2 and regard the list which follows as exhaustive – though allowing for reasonable elaboration in the particulars of Ground 2 – see Nagle View.401

130. The particulars of Ground 2 elaborate a complaint, in essence, of failure by the members to adequately consider proper planning and sustainable development specifically by failure to engage with the materials listed in Core Ground 2. They do so by reference primarily to motions 122, 123 and 124 passed by the members at the meeting of December 2020 at which the Draft Development Plan was adopted and to content of the relevant transcript. That accords with the gravamen of the oral submissions at hearing. However, the particulars also, and without clarifying, refer to an excerpt from the transcript402 of the meeting of 21 October 2021, at which the members:

• In effect, decided to adopt the Development Plan - subject to further public consultation on and subsequent decision on material alterations identified on 21 October 2021.

• In so doing, discussed and rejected the CE recommendations, as to the Colbeam Lands, favouring residential zoning and deletion of the INST Objective.

131. In fairness to counsel for Colbeam I should say that, while he did not confine himself to standing on his pleadings and written submissions, Ground 2 was not strongly pressed orally. But the ground was not abandoned, so I must decide it.

G2 - COUNCIL’S POSITION

132. The Council says that the Impugned Decision is based on “proper planning and sustainable development”. Zoning objective ‘F’ (open space) and the ‘INST’ designation, as applied to the OLG Campus, accord with ss.10(2), (3)403 & (8) PDA 2000.

• S.10(2)(a) requires that a development plan include land use zoning objectives - including zoning for recreational use and use as “as open space”.

Nagle View Turbine Aware Group v An Bord Pleanála [2024] IEHC 603 §40 & 41.

402 The particulars cite a “question by an elected member who queried whether there could be a legal challenge if the zoning was changed after the

most recent permission had been granted. The answer given to that question was that it was a matter for the elected members “to decide how you

want to zone it”, that the elected members had some unspecified protection when making the plan and that “this is the members’ plan”.

S.10(3) allows development plan objectives of the types listed on Schedule 1 PDA 2000.

Colbeam v DLRCC [2025] IEHC 437

• S.10(8) excludes any presumption that any land zoned in a particular development plan shall remain so zoned in any subsequent development plan.

133. The Council says that:

• Colbeam’s written submissions404 assert that the members did not engage with the Board’s view that the residential development of the Colbeam Lands could provide a “quantum” of open space on the lands.

• However, the members wished to ensure that the 25% open space requirement of the ‘INST’ designation would apply to the entire OLG Campus irrespective of current ownership, as per Redmond #1.405

• By applying the ‘INST’ designation and zoning objective ‘F’ to the Colbeam Lands, the members were attempting to copper-fasten the provision of open space on the OLG Campus on the Colbeam Lands.

• Insofar as the lands “do not currently function as an area of public open space and are not publicly accessible” that was because the ‘INST’ designation was ineffective on its own and that was addressed by

the ‘F’ zoning - as has been done at a similar location that was “a former sports field” and “was always in

private ownership” and “is no longer in use as open space”.

• The KPMG report was submitted in the consultation as to proposed material alterations. At that stage of the development plan-making process there was no proposal/motion to materially alter the Colbeam Lands zoning from the open space zoning for which the Adopted Draft Plan had provided. So it was not relevant to the proposed amendments that the members were to consider.

134. The Council’s Senior Planner deposes406 that:

“Although the Chief Executive disagreed with Motion 124 on the grounds that the lands do not currently function as an area of public open space, the reason given in Motion 124 is considered to be a plausible reason in accordance with proper planning and sustainable development. As set out above the ‘F’ land use zoning does, in other cases in the County, apply to privately owned lands.”

G2 – DISCUSSION & DECISION

CE Report of July 2021

135. It bears generally observing that the relevant extract of the transcript of the meeting of 12 October 2021 begins with the chair calling “Recommendation on 823” and for the relevant map. This is a reference to page 832 of the CE Report of July 2021 – at which the text of the CE Recommendation for the Colbeam Lands

404 §62-63.

405 Redmond v An Bord Pleanála [2020] IEHC 151.

Affidavit of Louise McGauran, sworn 28/11/22, §96.

Colbeam v DLRCC [2025] IEHC 437

is set out in red. As the chronology above, records that text is preceded by a summary of the “differing views and requests” made in submissions as to those lands (including the submission of April 2021 by Thornton O’Connor for Colbeam) and by the CE’s response thereto. Colbeam does not impugn or criticise that CE Report as to its summary of Colbeam’s submission of April 2021. Absent evidence to the contrary (and there is none) it is untenable to suggest non-regard by the members to the CE Report of July 2021 as to the Colbeam lands and the issues canvassed therein.

136. I should record that, in a sense, the CE Report of July 2021 went further in Colbeam’s favour than had Colbeam’s submission of April 2021. The CE Report cited Figure 6.6 of the Thornton O’Connor SHD Report of February 2021 - which Colbeam had not enclosed with the Thornton O’Connor submission to the Council of April 2021. Colbeam at hearing laid some stress on Figure 6.6. But the CE Report cited it specifically as to the relatively discrete issue of retention of an afterschool facility and the provision of a 280m2 amenity space to serve it. Given Colbeam’s submission of April 2021 did not do so, it would be quite unfair to criticise the CE Report for not explicitly associating that Figure 6.6 with the assertion in the Thornton O’Connor SHD Report of February 2021 that, on completion of the Student Accommodation SHD, 48% of the OLG Campus would be open space. Neither, it seems to me, did this reference in the CE Report oblige the members, in the context of the far wider and highly demanding task on which they were embarked in making the Development Plan, to go ferreting for a report of February 2021 to the Board which was not before them.407 Nor, in fairness, has Colbeam criticised the CE Report of July 2021.

Thornton O’Connor Submissions for Colbeam - April 2021

137. There clearly was in October 2021 an obligation of regard to the Thornton O’Connor submissions of April 2021 for Colbeam as to the Adopted Draft Plan. But, as has been seen, Volume 1 of the CE Report of July 2021 summarised those submissions and Volume 2 set them out in what can only be described as appreciable detail. Colbeam, unsurprisingly, does not criticise the account of its submissions given in the CE Report. And, as has also been noted, those Thornton O’Connor submissions of April 2021 did not:

• Repeat the assertion in the Thornton O’Connor report to the Board of 12 February 2021 that open space proposed in the student accommodation SHD would result in a quantum of 48% open space across the overall OLG Campus or repeat Figure 6.6 of that report of 12 February 2021 illustrating that proposition.

• Argue that the 25% open space and open character requirements of the 2016 INST Objective, as they related to the overall OLG Campus, had already been satisfied in the other three quadrants.

Volume 1 of the CE Report also supplied an extensive response to those submissions – notably, a response supportive of Colbeam’s submissions and recommending that the members accede to its requests. At the Council meeting of 21 October 2021 the executive orally recommended to the members both that the Colbeam Lands be zoned for residential use and that the INST Objective be removed from the Colbeam

407 The furthest, perfectly properly, Counsel for Colbeam was able to put it was to say “… that was the document that had been in circulation with the

SHD application and which the Chief Executive mentioned in her report” – Transcript Day 1 p47.

Colbeam v DLRCC [2025] IEHC 437

Lands. As has been said, the transcript of October 2021 reveals that, at least as to the Colbeam Lands, the CE Report and its recommendations were the explicit occasion of the discussion.

138. Given the foregoing, I cannot see that Colbeam has discharged the burden of proving non-regard in October 2021 to the Thornton O’Connor submissions of April 2021 for Colbeam as to the Adopted Draft Plan. As has been said, by the decision of 21 October 2021 the die was cast as to the Colbeam Lands. Given there could have been no new material alteration of the draft plan thereafter, questions of regard or non-regard after October 2021 to the Thornton O’Connor submissions of April 2021 do not arise. That is because such regard or non-regard could not have affected the content of the 2022 Development in the respects of which Colbeam complains.

KPMG Report – October 2021

139. In April 2021 Thornton O’Connor had made Colbeam’s submission with a view to the material alteration of the Adopted Draft Plan as it related to the Colbeam lands. As has been seen, the CE had reported to the members in July 2021 - inter alia as to the Thornton O’Connor submission. Obviously, neither Thornton O’Connor in April 2021 nor the CE in July 2021 cited the KPMG report dated October 2021. As recorded above, on 12 October 2021 the members started a series of meetings to consider amending the Adopted Draft Plan and, in effect, to start the process of further public consultation required as to such of those amendments as would constitute material alterations of the Adopted Draft Plan.

140. As has been seen, Colbeam informally circulated the KPMG Report to the elected members a few days before their meetings of October 2021. That is to say, they did so outside of the statutory consultation process which had informed the CE’s Report of July 2021. I am prepared - not reluctantly - to assume that the members were entitled to have regard to the KPMG Report in their meetings of October 2021. I do not consider that they were obliged to do so. The adoption of a development plan is a highly complex process typified by a very large number of submissions by numerous (in this instance 1,263) interested parties and prescribed bodies on a myriad of issues – many of which are strategic, complex, controversial and/or consequential. I have no doubt that the management of the consultation process, the preparation of the CE’s Report thereon (in this instance, about 1,400 pages) and the absorption and consideration by members of those submissions are highly burdensome on all concerned. That interested parties avail fully of their statutory consultation opportunities and say in their statutory submissions all they want to say is therefore a matter of considerable importance. I do not ignore that such extra-statutory submissions are in practice made. Nor do I suggest that regard may not be had to them where they invoke substantively relevant considerations. But general provision for l’esprit d’escalier or afterthought as imposing additional burdens of obligatory regard is inconsistent with such a statutory architecture.

141. The KPMG report was first formally submitted to the Council on 8 December 2021 with Thornton O’Connor’s submission of that date and the CE reported thereon to the members on 31 January 2022. But by then it was too late from Colbeam’s point of view. As no proposed material alteration of the zoning of the

Colbeam v DLRCC [2025] IEHC 437

Colbeam Lands had been adopted by the Council in October 2021, the opportunity to make such a material alteration had passed.

142. In the foregoing light, I cannot see that Ground 2, as it relates to the KPMG Report, can succeed.

143. Lest I am wrong in that regard, I dismiss Ground 2 as to the KPMG Report in any event as, even assuming an obligation in October 2021 of regard to it, Colbeam bears and has not satisfied the onus of demonstrating non-regard.

144. In the practical and burdensome context of collective development-plan making, in which very many submissions are made and very many other documents require consideration on myriad and complex issues, there is no formalistic requirement of “box-ticking” record (whether in transcripts, minutes or elsewhere) of regard by the members to any and every relevant document. I accept the Council’s submission408 that in accordance with the presumption of validity of administrative decisions, the members are presumed to have had regard to relevant documents unless the contrary is shown.

145. The contrary is not shown merely by suggesting that the members’ decision is in substance explicable only by failure of regard to what a protagonist in the process regards as his compelling argument. The proposition that the fact that a decision does not agree with a submission per se implies that no regard was had to that submission is an obvious fallacy. Such a suggestion in truth represents an impermissible argument on the merits and an impermissible attempt to circumvent the high bar of a challenge alleging irrationality.

146. It is difficult to avoid the impression that a view that the decisionmaker could not but have decided in my favour if only it had had regard to my submission underlies many allegations of failure of regard to submissions – and this allegation. This observation is not intended to upset the duty of engagement with submissions, not least in planning permission applications. But in the specific tasks of adoption of a development plan, in which a great many submissions were made, and of recording the considerations to which regard has been had, practicalities intrude. And, for reasons already stated, while it contained potentially relevant content, it cannot be said that the KPMG Report was, in this respect, inevitably weighty, much less conclusive.

Transcript Day 2 p29.

Colbeam v DLRCC [2025] IEHC 437

Colbeam Lands Don’t Function as Public Open Space and Won’t Without Development

147. The allegation of non-regard to the fact that that the Colbeam Lands have never functioned as public open space and the CE’s evidence to that effect is, on the facts, distinctly puzzling to the point that it is difficult to see why it was pleaded. At the meeting of 21 October 2021:

• The CE Report of July 2021 was explicitly the basis of discussion. It had:

o pointed out that the Colbeam Lands “do not currently function as an area of public open space”; and o acknowledged that open space zoning “does also cover private facilities” – a proposition counsel Colbeam accepted at the hearing.409

• Cllr Saul said: “it's very interesting the Manager says that we don't consider this as an area that is used for

open space any more” – “[a]nd the executive are now saying that this shouldn't be F, open space because it's no longer in existing use.” He replied, by reference to another example, in terms of the validity of open space zoning of private land – an example with which the executive later disagreed.

• On the other hand, Cllr Dunne, speaking in favour of a residential zoning of the Colbeam Lands, said “it's pie in the sky to be holding private land for public open space.”

Accordingly, and in this regard, the alleged non-regard cannot be upheld. Regard was clearly had. The complaint is truth is not of non-regard but pf non-agreement. It is a complaint on the merits.

148. For similar reasons, not least Cllr Dunne’s “pie in the sky” remark, the allegation of non-regard to the view expressed by Thornton O’Connor, that that public open space on the Colbeam Lands cannot be achieved without residential development, also fails.

Prior Planning Permission Decisions

149. The allegation of non-regard to the Commission’s decision of 3 June 2021 (ABP-309430-21 – student accommodation SHD) that SHD use of the Colbeam Lands is consistent with proper planning and sustainable development is just as untenable. Cllr Dunne, speaking for a residential zoning said: “[t]here's a live application there that has initial granting for badly needed student accommodation – for which the Colbeam Lands were appropriate and provision of which is essential to residential supply in the county.” The Cathaoirleach stated her understanding that planning permission had been granted already for student accommodation and Cllr O’Leary (correctly) stated that “maintaining the zoning does not impact the existing planning permission.” Indeed, the CE Report of July 2021 had explicitly drawn the member’s attention to the student accommodation SHD permission and to the Thornton O’Connor Planning report which had supported it, as to the proposed open space provision in that student accommodation SHD. The Executive orally clarified at the meeting that the student accommodation SHD permission was in judicial review.

Transcript Day 1 p42.

Colbeam v DLRCC [2025] IEHC 437

150. So, the members’ attention had been expressly – indeed repeatedly - drawn to the Commission’s

decision of 3 June 2021. Any member would inevitably have understood that the Commission could have made that decision only if it had considered that SHD use of the Colbeam Lands was consistent with proper planning and sustainable development. Indeed, that the Commission had considered, and would consider, SHD use of the Colbeam Lands consistent with proper planning and sustainable development was, as recognised earlier, part of their express reasons for zoning the lands for open space. Of course, that did not oblige the members to take the same view as the Commission and clearly they did not.

151. Regard to the Commission’s Durkan SHD decision of 2 July 2020 could not, logically, have added to that understanding. And, of course, the members were well aware of the decision in Redmond #1 which, as they knew, had quashed an SHD decision as to the Colbeam Lands. They can only have inferred that such SHD decision, even though later quashed, must have represented the Commission’s view that SHD use of the Colbeam Lands was consistent with proper planning and sustainable development. That was, of course, the Durkan SHD decision of 2 July 2020.

152. Colbeam’s plea, by reference to those decisions of the Commission, that the members had failed “to identify and respect the determination of certain of those matters within the planning history” is premised on the misconception that the Board’s view of the proper planning and sustainable development bound the members. It did not. The allegation of non-regard to those decisions fails.

Proper Planning & Sustainable Development

153. The specific complaints rejected above were coalesced by Colbeam as a complaint of breach of s.12(11) PDA 2000 by non-regard to considerations of proper planning and sustainable development. The corollary of that rejection is that there was no such non-regard or breach of s.12(11) PDA 2000. In addition, I respectfully agree with the deposition of the Council’s senior planner410 set out above. The impugned zoning

decision is supported by a clearly expressed and plausible reason in terms of proper planning and sustainable development. I repeat here my analysis above under the heading “outmanoeuvring the Board”.

154. Whether the Executive or I would have, by way of evaluative planning judgement, made a different

decision is beside the point of judicial review. In my view, much of Colbeam’s written submissions on Ground 2411 amount to a merits-based disagreement with the members’ assessment of the issues of proper planning and sustainable development as they relate to the Colbeam Lands. Whatever force Colbeam’s criticism of their reasoning might have in a critique of a decision on a planning application it falls well short, by reference to the standards set in the cases, as a critique of a decision in the making of a development plan. Colbeam’s critique of the members’ “mere” assertion that the Colbeam Lands should be “protected for future use as

410 Affidavit of Louise McGauran, sworn 28/11/22, §96.

In particular, submissions §59 et seq.

Colbeam v DLRCC [2025] IEHC 437

open space” ignores the simple fact that that is an entirely legitimate planning consideration and is, in the end, clearly the main reason on the main issue faced by the members. As a reason and ultimately, it tells Colbeam precisely why the members decided as they did and is amply supplemented by the minutes and transcripts of both relevant meetings.

IRRATIONALITY

155. Colbeam submits412 that the members’ reasons do not flow from their premises.

• First, it is said, the Colbeam Lands do not function as open space. That is not correct - as indeed, Simons J found in Redmond. What is correct is that they do not function as public open space. But, as the Executive advised the members, open space zoning is applicable to private lands. No doubt such zoning is unwelcome to many a landowner – as zonings are often unwelcome to landowners. Yet there is no suggestion that such advice was unsound either legally or in planning terms.

• Second, Colbeam submitted that its submissions to the Council “showed that the provision of open space on the Grove Lands could not be achieved without the residential development of those lands”. In fairness, counsel for Colbeam, at hearing, more or less accepted that this submission would not, in these proceedings, avail.413 The flaw here is the words “showed” and “could not” - which imply establishment of an indisputable fact. What in fact Colbeam expressed was a prediction - a judgement which may prove correct. Councillor Dunne brought to the members’ attention his view that open space zoning was “pie in the sky” – he too may yet be proved correct. But it bears observing that many types of development are listed as permissible in principle or open to consideration under the open space zoning and have the capacity to deliver open space. That such development may be (I assume for the sake of argument)

unattractive, commercially or otherwise, to a particular present owner or, indeed, to others, does not at all imply the impossibility of open space without residential development. In short, Colbeam were entitled to make the submission in question to the Council and the members were entitled to reject it on its merits.

• Third, Colbeam says that the impugned decisions were irrational given the schools’ attitude. No doubt, the schools’ attitude was relevant. And the members would have been fully entitled to consider it weighty

– even decisive – as a matter of their judgement. But I cannot see that the schools’ attitude was in law inevitably decisive of anything. Leaving aside the disagreement of the parents’ association, it certainly was not decisive of the benefit of open space to the “wider community”.414 And, of course, that the schools don’t need the open space for expansion does not mean that the members had to conclude that the schools and/or their pupils would not derive use and benefit from it, whether or not, for example, it was laid out in sport pitches or merely as passive open space. It is very easy to see that the school communities – staff, pupils, parents and others - could well find public open space in that location attractive in practice – as would, no doubt, the residents of The Grove, the Convent, and perhaps other local residents. In that regard, there is no inevitability to the acceptance of Colbeam’s submission,

412 Submissions §66.

413 Transcript Day 1 p27.

Cllr Saul, 15 December 2020 & Minutes 18 December 2020, reason for adoption of Open space zoning.

Colbeam v DLRCC [2025] IEHC 437

legitimate in itself as a planning view, that these lands are more or less inaccessible “backlands”. I take no view on these issues. I say only that the members were not bound to take Colbeam’s view. Whether that view accorded with proper planning and sustainable development was ultimately not for Colbeam, the schools, the Council Executive or, for that matter, me. It was for the members. And there is no mystery as to what view, in these regards, the members took as a matter of planning judgement – whether or not one regards their reasons as ‘neatly packaged’.

• Fourth, there is some force to the view that no reason was given for the designation of the northern part of the Colbeam Lands, bordering on the realigned hockey pitch, as SNI. But this seems to me (and in fairness Counsel for Colbeam accepted415) a sidewind in the case. I would revisit the issue if I were to quash the open space zoning but not otherwise. As to irrationality, the logic of the members’ decisions is that, if not SNI, that area would clearly have been zoned as open space given their zoning of the remainder of the Colbeam Lands. In that light, certiorari in this regard, taken alone and out of context, would be disproportionate and would not, given their opposition to open space zoning, yield to Colbeam anything which they value. However, while I have considered this issue on its legal merits and rejected Colbeam’s view of it, in the end, the Council are correct in submitting that it is not pleaded and I reject Colbeam’s view on that account.

156. It follows that, in my view, there is no irrationality here.

CONCLUSION - GROUND 2 – RELEVANT CONSIDERATIONS

157. It follows from the reasoning set out above, that Ground 2, alleging non-regard to relevant considerations, fails.

CONCLUSION – OVERALL

158. As Ground 3, alleging material regard to irrelevant considerations, and Ground 2, alleging non-regard to relevant considerations, both fail, the proceedings will be dismissed. I will list the case for mention and final orders on 3 November 2025. In the event any party requires an earlier listing there will be liberty to apply.

David Holland 5/8/25

Transcript Day 1 p49.