High Court allows planning direction to override flood risk guidelines where development plan compliance is established.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

THE HIGH COURT PLANNING & ENVIRONMENT JUDICIAL REVIEW [2025] IEHC 696 2022/1132 JR IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

Between VOYAGE PROPERTY LTD Applicant and LIMERICK CITY AND COUNTY COUNCIL, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, THE MINISTER OF STATE AT THE DEPARTMENT OF HOUSING, LOCAL GOVERNMENT AND HERITAGE, and THE OFFICE OF THE PLANNING REGULATOR Respondents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 16 DECEMBER 2025

CONTENTS

Contents .............................................................................................................................................................. 1

INTRODUCTION ................................................................................................................................................... 4

Figure 1 Extract from Material Alterations Map ..................................................................................... 8

RELIEFS SOUGHT & GROUNDS NOT PURSUED .................................................................................................. 10

MINISTERIAL DIRECTION ................................................................................................................................... 11

CORE OF CASE & PURPOSE OF IMPUGNED DIRECTION .................................................................................... 13

JUSTICIABILITY OF OPR RECOMMENDATIONS .................................................................................................. 15

CONSISTENCY OF DEVELOPMENT PLAN WITH NPF - Ss 10 & 12(18) PDA 2000 & KILLEGLAND ....................... 15

REGARD TO, NOT COMPLIANCE WITH, GUIDELINES – S.28 PDA 2000 & JONES ............................................... 17

NPO 57 (FLOOD RISK) & FLOOD RISK GUIDELINES ............................................................................................ 20

Flood Risk Guidelines – Legal Status as to Development Plans Content in Light of NPO 57 ........................ 20

Flood Risk Guidelines – Content .................................................................................................................... 22

Figure 2: Sequential Approach in Flood Risk Management - Flood Risk Guidelines ................................. 27 Pre-Sequential Approach – Step 1 – Identification of Specific Zoning/Development Proposal ............... 27

Pre-Sequential Approach – Step 2 - Parts 1 to 4 ....................................................................................... 27

Table: Flood Zone/Development Vulnerability Matrix.............................................................................. 29

Sequential Approach - Steps 1 & 2 – Avoidance & Substitution ............................................................... 29

Sequential Approach - Step 3 - Justification.............................................................................................. 31

Development Plan Justification Test - Flood Risk Guidelines Box 4.1 ....................................................... 32

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

DMJT - Box 5.1 ........................................................................................................................................... 33

DPJT Applied Independently of Development Type Envisaged? ................................................................... 33

SUFFICIENT LANDS ZONED RESIDENTIAL ELSEWHERE - ABANDONMENT OF GROUND 13 .............................. 35

RPS WORK FOR VOYAGE.................................................................................................................................... 36

CHRONOLOGY.................................................................................................................................................... 37

Figure 3 – Greenpark Land Use Zoning, 2010 Development Plan ............................................................. 37

Figure 4 – Greenpark Flood Zoning ........................................................................................................... 38

Voyage (RPS) Greenpark Masterplan FRA – 18 December 2020 .............................................................. 39

LCCC (JBA) Draft Plan SFRA – 26 June 2021............................................................................................... 40

Draft 2022 Development Plan adopted & published for Public Consultation – June 2021 ...................... 43 Voyage (TPA) Submission on Draft Plan (Including purported DPJT) - Sept. 2021 & Comment Thereon .... 45

Concluding Note on TPA Submission on Draft Plan .................................................................................. 52

Chronology resumed – from 6 September 2021 ........................................................................................... 52

Voyage (RPS) SSFRA for SHD – 22 September 2021 .................................................................................. 52

CE Report to Members on Draft Plan Consultation & Updated JBA SFRA - November 2021 ................... 53

Motion for Material Alteration of Draft Plan - February 2022 .................................................................. 56

CE Summary of Members’ Proposals to Amend Draft Plan ...................................................................... 57

Adoption of MA 147 – 18 February 2022 .................................................................................................. 57

Observations on Proposal and Adoption of MA 147 & Process Thereafter .................................................. 58

Material Alterations Documents for Public Consultation - 12 March 2022 .................................................. 60

Material Alterations SFRA (including Appendix D) – JBA/LCCC – 12 March 2022..................................... 60

Notes on JBA Material Alterations SFRA - 12 March 2022 ........................................................................ 61

Chronology resumed – from 14 March 2022 ................................................................................................ 64

Voyage (TPA) Submission on MA 147 – April 2022 ................................................................................... 64

OPR Submission to LCCC on Material Alterations (incl. Recommendation #4) – 11 April 2022 ............... 65 CE Report to Members on Public Consultation on Material Alterations – May 2022 .............................. 66

Motion to Adopt MA 147 – 8 June 2022 ................................................................................................... 67

Notes on Motion to Adopt MA 147 – June 2022....................................................................................... 69

Figure 3 Extract from Figure 3.5, RPS SSFRA for SHD proposal ............................................................ 70

LCCC Make Development Plan - 17 June 2022 .............................................................................................. 70

Figure 4 - Extract LCCC Development Plan 2022, Zoning Map 3: Limerick City & Suburbs....................... 71

Development Plan SFRA (JBA) – 17 June 2022 .......................................................................................... 71

CE Notice to OPR of Members’ Decision & Reasons - 23 June 2022 - s.31AM(6) PDA 2001 ........................ 72 LCCC Reasons for Zoning Greenpark Lands Residential & their Communication to OPR & Minister ........... 78

Chronology resumed – from OPR’s s. S.31AM(8) Notice - 15 July 2022 ....................................................... 85

OPR Notice Recommending Draft Ministerial Direction - 15 July 2022 – S.31AM(8) PDA 2000................... 85

Draft Direction ........................................................................................................................................... 87

Finding as to Adequacy of OPR’s Account to Minister of Members’ Reasons for Adopting MA 147 ....... 88

Minister’s Notice of Intention to Issue a Direction – 2 July 2022 ................................................................. 89

Voyage (TPA) Submission to LCCC opposing Draft Ministerial Direction – 19 August 2022 ......................... 91

Notes on TPA/Voyage Submission opposing Draft Ministerial Direction – 19 August 2022 .................... 92

Chronology Resumed – From 7 September 2022 ......................................................................................... 94

CE Report to Members, OPR & Minister - 7 Sept. 2022 - on submissions on Draft Ministerial Direction. 94 OPR Notice to Minister Recommending Direction - s.31AN(4) PDA 2000 - 28 September 2022 ................. 94

Notes – Importance of S.31AN(4) Notice .................................................................................................. 95

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

OPW Submission on Draft Direction - 18 October 2022 ........................................................................... 96

Impugned Ministerial Direction to LCCC - 4 November 2022 - s.31 PDA 2000 ............................................. 97

RPS Expert Litigation Report – December 2022 ............................................................................................ 97

RESIDENTIAL DPJT - CONFUSION AS TO WHAT RPS DID ................................................................................... 99

CE DRAFT PLAN REPORT, 26 NOVEMBER 2021 – ALTERNATIVE RESIDENTIAL LANDS ZONED ....................... 101

ENTERPRISE & EMPLOYMENT - ARE GREENPARK LANDS IN DRSEL? .............................................................. 102

RSES/LSMASP............................................................................................................................................... 102

LCCC’s Position ............................................................................................................................................ 104

Conclusion - Greenpark Lands not in DRSEL................................................................................................ 106

Greenpark Lands not in DRSEL - Does it Matter? ........................................................................................ 106

ORDER IN WHICH GROUNDS ADDRESSED ....................................................................................................... 108

Independent Grounds ................................................................................................................................. 108

GROUNDS 8 & 15 ............................................................................................................................................. 109

OPR MISINTERPRETED FLOOD RISK GUIDELINES & ERRED IN CONCLUDING THAT SUBJECT LANDS FAILED A

DPJT FOR RESIDENTIAL DEVELOPMENT ...................................................................................................... 109

LCCC FAILED TO CORRECTLY INTERPRET/APPLY FLOOD RISK GUIDELINES OR GIVE REASONS FOR

DEPARTING FROM THEM ............................................................................................................................ 109

G8&15 - Voyage Position ............................................................................................................................. 110

G8&15 - OPR Position .................................................................................................................................. 111

General .................................................................................................................................................... 111

Residential Zoning ................................................................................................................................... 112

Enterprise & Employment Zoning ........................................................................................................... 114

G8&15 - State & LCCC Positions: ................................................................................................................. 114

G8&15 - Discussion...................................................................................................................................... 115

Pleading, Technical Points, Failure to Impugn s.31AN(4) Notice & Domino Effect................................. 115

Law as to Mistake of Fact & Pleading such Mistake................................................................................ 117

Existing Development Status & Location of Lands - “under-utilised” & “adjoining the core” ................ 118

Residential Zoning ................................................................................................................................... 119

Enterprise & Employment Zoning ........................................................................................................... 121

G8&15: Decision...................................................................................................................................... 122

GROUND 5 - MINISTER ERRED IN LAW IN CONCLUDING THAT LCCC FAILED TO HAVE REGARD TO FLOOD RISK

GUIDELINES ..................................................................................................................................................... 123

G5 - Voyage Position: .................................................................................................................................. 123

G5 - State & OPR Position:........................................................................................................................... 123

G5 - Discussion & Decision .......................................................................................................................... 125

Statutory context..................................................................................................................................... 125

Standard of review .................................................................................................................................. 125

Effect of NPO 57 & Flood Risk Guidelines & Decision on Ground 5 ........................................................ 130

G5: Pleading Point ....................................................................................................................................... 133

CONSEQUENCE OF DISMISSAL OF GROUNDS 5, 8 & 15 – DISMISSAL OF PROCEEDINGS ............................... 135 GROUND 2 - DIRECTION INVALIDATED BY ULTRA VIRES CE RECOMMENDATIONS ........................................ 136

GROUND 3 – DIRECTION VOID FOR WANT OF REASONS & UNCERTAINTY .................................................... 137

G3 - Voyage Position - Remaining Elements ............................................................................................... 137

G3: State & OPR Position ...................................................................................................................... 138

G3: Decision .......................................................................................................................................... 138

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

GROUND 7 – MINISTER ERRED IN CONCLUDING DEVELOPMENT PLAN LACKED OVERALL STRATEGY .......... 140

GROUNDs 10, 6 & 3§8 ..................................................................................................................................... 140

LCCC FAILED TO ADVISE OPR OF ALL MEMBERS’ REASONS FOR ZONING SUBJECT LANDS FOR RESIDENTIAL

USE............................................................................................................................................................... 140

MINISTER FAILED TO CONSIDER ALL MEMBERS’ REASONS FOR ZONING SUBJECT LANDS ‘NEW

RESIDENTIAL’ ............................................................................................................................................... 140

A General Discretionary Matter .................................................................................................................. 143

GROUNDS 11 & 14 - LCCC................................................................................................................................ 143

MISINTERPRETED RSES/LSMASP AS TO WHETHER THE GREENPARK LANDS ARE STRATEGIC EMPLOYMENT

LANDS .......................................................................................................................................................... 143

FAILED TO GIVE REASONS FOR ZONING SUBJECT LANDS DESPITE ERROR IN TREATING THEM AS A STRATEGIC EMPLOYMENT SITE OR FOR WHY THEY WERE SO TREATED .................................................... 143

G11&14: Decision ................................................................................................................................. 144

GROUND 9 – DEVELOPMENT PLAN INVALID AS MINISTER’S DIRECTION INVALID ......................................... 145

GROUND 1 – DIRECTION INVALID AS OPR’S S.31AM(8) NOTICE INVALID ...................................................... 145

G1: Decision .......................................................................................................................................... 145

CONCLUSION ................................................................................................................................................... 146

Glossary ....................................................................................................................................................... 147

INTRODUCTION

1. These proceedings yet again disclose what I am not alone in perceiving as the complexities of both law and fact presented by both planning law and planning processes as they relate to ministerial directions to planning authorities countermanding, as unlawful, decisions of planning authorities as to the content of their development plans. Humphreys J in the Cork County Council case1 has identified at least 19 separate steps in what counsel for the Applicant described as a Byzantine statutory process.2 Counsel for the OPR advised that he had got 14 boxes of documents by way of a brief.3

2. In appreciable part, the complexities - and subtleties - arise as between, on the one hand the requirement, accepted by the Minister,4 that a direction must be based on the illegality of a development plan but that illegality is a matter of ministerial opinion and, on the other hand, the stipulation that the Minister may not impose a direction merely because he disagrees with the evaluative planning judgements of the planning authority. This complexity is amplified by caselaw which establishes that:

• Certain legal obligations of planning authorities as to the content of their development plans are of regard to, not compliance with, certain types of national policy (notably, guidelines issued under s.28 PDA 20005) - Cork County Council6 - and, in the case of certain duties of compliance, require general but not

1 Cork County Council v Minister for Housing [2021] IEHC 683.

Transcript Day 1 p117.

3 Transcript Day 3 p103.

4 Transcript Day 2 p137.

5 The Planning and Development Act 2000, as amended.

Cork County Council v Minister for Housing [2021] IEHC 683.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

detailed, compliance with precatory and aspirational national policy - Killegland.7 In the present case, an additional complexity arises in that the State in effect says that the Government’s adoption of an NPO of the NPF8 has transmuted the straw of an obligation of mere regard to a section 28 guideline - the Flood Risk Guidelines9 - into the gold of a statutory obligation of compliance.

• It is not for the courts to second-guess policy choices by the Oireachtas as to the distribution of the balance between central and local control of planning policy and decision-making. But it is essential that legislation effecting such distribution, transferring competence from planning authorities to the Minister, should do so clearly and precisely and the courts should avoid giving such legislation effect beyond its clear provisions – Spencer Place.10

3. The statutory scheme and caselaw underlying the power of ministerial direction is described, inter alia, in Mount Salus.11 I will try here to minimise repetition of that exercise.

4. The proceedings also arise on foot of a lengthy and complex sequence of events. Not least, it is important to be clear as to what piece of land one is considering at any given point in the analysis.

5. The reader may find that the glossary at the end of this judgment assists – not least as what follows here is littered with acronyms.

6. The Applicant (“Voyage”) is a property development company. It owns about 47 hectares of land comprising most, but not all, of the former Greenpark Racecourse, Dock Road, Limerick, west of Limerick city centre and south-east/south of Dock Road and the Shannon river. I will generally refer to the former Greenpark Racecourse as “the Greenpark Lands”. Voyage describes them as being within 2km of the Limerick city core. In fact they are outside the 2km radius from the city centre.12 The difference is accounted for by the fact that the core is an area and Voyage measures the distance from its edge, whereas the centre can be roughly thought of as a point at the centre of the core.

7. To avoid confusion, it is useful in considering what follows to bear in mind that the word “zone” and its cognates are used in two different senses: they may refer, on the one hand, to land-use zoning objectives in a development plan and, on the other, to flood risk zones identified for the purposes of the Flood Risk Guidelines.

8. In due course a more detailed chronology will be required, but here it suffices to record that:

7 Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, [2023] 12 JIC 2109.

National Policy Objective 57 of the National Planning Framework.

9 Planning System and Flood Risk Management Guidelines 2009.

10 Spencer Place Development v Dublin City Council [2020] IECA 268; [2020] 10 ICLMD 96.

11 Mount Salus Residents v An Bord Pleanála, Minister for Housing, OPR & Smyth [2025] IEHC 14.

Limerick Development Plan 2022 Map 1: Limerick City and Suburbs (in Limerick), Mungret and Annacotty - Residential Settlement Capacity Map.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• The Greenpark Lands had been zoned in the 2010 Limerick City Development Plan13 (“the 2010 Plan”) variously for Residential use14, Mixed Use,15 a Neighbourhood Centre16 and Public Open Space.17 Broadly, the areas in the east/south-east of the Greenpark Lands, the lands at issue in these proceedings, were zoned for Residential use in the 2010 Plan. A 2010 Plan map18 placed most of the Greenpark Lands in Flood Risk Guidelines Zones A (high probability of flooding) with some in Zone B (moderate probability of flooding) and, in the east/south-east, some in Zone C (low probability of flooding).

• From June 2021, the Draft Limerick Development Plan 2022 – 2028, (the “Draft Plan”) informed by a flood risk assessment done for LCCC19 by JBA,20 proposed to rezone the Greenpark Lands generally to Enterprise and Employment uses – which Voyage opposes, preferring Residential zoning.21

• In February 2022, Voyage was granted permission22 by the Board23 to develop an SHD24 of 371 houses on about 7.9 hectares25 in the south-eastern part of the Greenpark Lands (“the SHD Site”). The SHD

Site is largely, but not entirely, in Flood Zone C (low probability of flooding). In that light it is useful to think

of Voyage, by this permission, as having picked the low-hanging fruit for residential development. The SHD permission exhausts their Flood Zone C areas and what remains to them in the eastern and south-eastern part of the Greenpark Lands is in Flood Zones A and B. Indeed, all but small parts are in Flood Zone A.

• At Voyage’s instance,26 a Member of LCCC proposed, and LCCC adopted, Material Alteration 147 (“MA 147”) of the Draft Plan, such that 14.7 hectares in the eastern end of the Greenpark Lands - a bit less than a third of Voyage’s Greenpark Lands - would be zoned “New Residential”. Confusingly, at least to me, what is clearly the same plot as the 14.7 hectares has elsewhere been described as 19.55 hectares.27 I don’t think I need to resolve that discrepancy and will from this point refer to the lands in question as the “MA

147 Lands”.

• While the relevant maps are a little imprecise, it is apparent that the MA 147 Lands largely exclude, but nonetheless overlap appreciably with, the SHD Site.28 What is controversial in these proceedings is the

13 See Greenpark Masterplan December 2020, Figure 3.2: Extract of Land Use Zoning Map … Limerick City Council Development Plan 2010-2016. An

extract can be found in the chronology as Figure 3.

14 Associated land use objective 'to provide for residential development and associated uses'.

Associated land use objective 'to promote the development of mixed uses that serves an area greater than its immediate catchment and to ensure

the creation of a vibrant and sustainable urban area.

Associated land use objective 'to protect, provide for and/or improve the retail function of neighbourhood centres and provide a focus for local

services'.

17 19.6 ha – 2A Residential; 10.6 ha - 5A Mixed Use; 2.3 ha – 5C Neighbourhood Centre; Remainder - Public Open Space.

18 Appendix 1 to the 2010 Development Plan. Map 2 - Flood Risk Areas.

19 the First Respondent – Limerick City and County Council.

20 Consulting Engineers.

21 Strictly, the zoning is “New Residential” in contrast with lands zoned as existing residential areas. However, I will generally refer to the controversial

zoning as “Residential”.

22 ABP SHD reference 311588.

23 An Bord Pleanála – now An Comisiúin Pleanála.

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

25 A total application site area of c.10.5 ha with a substantive residential site development area of c.7.9 ha. The difference is largely accounted for by

access road.

26 Their draft motion is exhibited.

27 See Residential Settlement Capacity Audit Material Alterations Map March 2022 and CE Report 12th March 2022 on Proposed Material Alterations,

Table 1: SCA Limerick City and Environs, Mungret and Annacotty lands identified for potential Residential, or a combination of Residential and other

Mixed Use development: site #133, p276 and TPA Submissions 4 April 2022.

28 This is apparent from comparison of, on the one hand, the Map included in the MA 147 motion papers and the Draft Limerick Development Plan

2022 - 2028 - Limerick City & Environs Zoning Map Material Alterations March '22- Dwg. # CDP-V2-02 and, on the other hand Figure 2.1 and Appendix A

of the RPS SSFRA dated 22/9 21 of the SHD Proposal.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

zoning of that part of the MA 147 Lands, which lies outside and north of the SHD Site. I am told it amounts to about 10 hectares. I will refer to that part of the MA 147 Lands as “the Subject Lands”. The Subject Lands are entirely in Flood Zones A and B – i.e. at high or moderate risk of flooding. Very predominantly they are in Flood Zone A – i.e. at high risk of flooding.

• On 17 June 2022, LCCC adopted the Limerick Development Plan 2022 – 2028 (“the Development Plan”), in which, by reason of MA 147, the MA 147 Lands, including the Subject Lands, were zoned “New Residential”. In so zoning them, the Members29 rejected the recommendations of the OPR30 and of the Chief Executive of LCCC (“the CE”), that the MA 147 Lands be zoned for Enterprise and Employment uses.31

• A subsequent iterative statutory process, including statutory recommendations by the OPR to the

Minister32 resulted in a “Ministerial Direction” (also the “Impugned Direction”) of 4 November 2022.33 It was

made pursuant to s.31 PDA 2000. Thereby, in effect, the Development Plan was amended, inter alia, to reverse MA 147 save as to the SHD Site. The practical effect was that the Subject Lands would be zoned for Enterprise and Employment/Open Space and Recreation34 and not, as Voyage wanted and the Members had decided, for Residential use.

9. It is, ultimately, the Ministerial Direction which Voyage seeks to quash in these proceedings such that, it asserts, the zoning of the Subject Lands should revert to the New Residential zoning adopted by the Members.

10. Dock Road runs generally north-east to south-west to the north and north-west of the Greenpark Lands. Between Dock Road and the river Shannon to the north-west lies a docks area and adjacent lands owned by the Shannon Foynes Port Company. The Shannon flows roughly parallel to Dock Road and about 500m from the Subject Lands. A tributary of the Shannon, the Ballynaclough river, flows to the west and south-west of the Subject Lands.

11. The flood risk to the Greenpark Lands is of riverine/tidal/coastal flooding. Both rivers are tidal at this location. OPW flood embankments protect the Greenpark Lands in some degree. It seems they were designed and constructed many years ago, of material of unknown origin, to protect what were then agricultural/racecourse lands from flooding. They were not designed or constructed to protect vulnerable development.35 In any event, the Flood Risk Guidelines require that such embankments be ignored in assessment of flood risk.

29 The elected members of LCCC.

30 The Fourth Respondent.

31 pp56-59 of the CE Report.

32 The Second Respondent.

33 Entitled “The Planning and Development (Limerick Development Plan 2022-2028) Direction 2022”. The direction issued from the Minister of State at

the Department of Housing, Local Government and Heritage with responsibility for Local Government and Planning acting as delegate of the Minister.

For convenience, I will continue to refer to the Minister.

34 As the case was pleaded and ran it focussed on the Enterprise and Employment zoning of the Subject Lands north of the SHD Site and not on the

Open Space and Recreation zoning.

35 Internal OPR report 1 July 2022 pp23/24; Bord Pleanála record of SHD Pre-Application Consultation Meeting ABP-310233-21 - 24th June 2021 §4 –

citing LCCC. Also TPS Submission 3 September 2021 p46.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

12. The relevant maps are complex and cannot be conveniently replicated here in detail. But Figure 1 below provides some understanding.

Figure 1 Extract from Material Alterations Map36

• This Figure represents the Draft Plan subject to MA 147. The black dotted line encloses the MA 147 Lands.

• The dark brown area depicts New Residential Zoning. The tan area represents Existing Residential Zoning. The pink area represents Enterprise & Employment zoning.

• The Dock Road runs north-east/south-west in the left corner. The docks and the Shannon lie off the map to the north-west.

• In the Draft Plan:

o The south-eastern strip of the MA 147 Lands (1.73ha)37 was to be zoned for Open Space.

o The northern area – the bulk of - of the MA 147 Lands (c.12.98ha)38 was to be zoned for Enterprise & Employment.

o The area between the south-eastern and the northern area of the MA 147 Lands was to be zoned New Residential - as was the strip running north outside the eastern edge of the northern area of the MA

147 Lands. Unlike the remainder of the relevant lands this area to be zoned New Residential is very largely in Flood Zone C.

36 Draft Limerick Development Plan 2022 -2028 - Limerick City & Environs Zoning Map Material Alterations March '22- Dwg #CDP-V2-02.

37 Area as stated in MA 147.

Area as stated in MA 147.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• The SHD Site comprises:

o Primarily as relates to the location of housing, the area between the southern strip and the northern area of the MA 147 Lands and part of the strip running north outside the MA 147 Lands. These are largely in Flood Zone C.

o The southern strip of the MA 147 Lands.

o Some southern parts of the northern area of the MA 147 Lands.

• The Subject Lands comprise the greater part of the northern area of the MA 147 Lands – i.e. excluding those parts included in the SHD Site. They are almost entirely in Flood Zone A – with a little in Flood Zone B and none in Flood Zone C. For purposes of analysis it suffices to regard the Subject Lands as entirely in Flood Zone A.

13. While I will return to the matter, it will assist at this point to note that the Flood Risk Guidelines:39

• Deem residential development:

o Highly vulnerable to flooding - in the sense that, if such areas are flooded, the resulting damage and inconvenience is likely to be severe.

o Inappropriate in Flood Zones A and B.

• Allow the exceptional possibility of residential development in Flood Zones A and B on application of a “Sequential Approach” – part of which consists in passage of a “Justification Test”.

o The Sequential Approach first considers whether, as to the lands in question, inappropriate development can be avoided and whether a less flood-vulnerable development type can be substituted. Avoidance and Substitution are “key principles”.

o So the sequence is: Avoid, Substitute, Justify.

o In my view, counsel for Voyage was incorrect in submitting, as to the Avoidance and Substitution elements of the Sequential Approach, that “I've no difficulty with that if the avoid development in areas of risk involves carrying out a Justification Test in that regard.”40 Only if Avoidance and Substitution do not rule out the proposed development type is a Justification Test required.

• Envisage application of the Sequential Approach including, if needs be, Justification Tests, at two distinct points in the planning process:

o A Plan-Making Justification Test (“PMJT”) is done in planning policy plan-making and informing landuse zoning. As done in specifically development plan-making, it is referred to as a Development Plan Justification Test41 (“DPJT”). It is done for land-use zoning any flood-vulnerable development on land in Flood Zone A and for zoning moderately flood-vulnerable development on land in Flood Zone B.

o A Development Management Justification Test (“DMJT”) is done in a planning application for any flood-vulnerable development land in Flood Zone A and for moderately flood-vulnerable development land in Flood Zone B.

The Planning System and Flood Risk Management, Guidelines for Planning Authorities (2009).

40 Transcript Day 1 p160. Counsel was correct in saying that Substitution may require a justification test of the substituted type of development. But

that depends on circumstance. For example, justification of less vulnerable development or water-compatible uses in Flood Zone B is unnecessary. And,

of course, that prospect may influence the choice of the substituted type of development.

Flood Risk Guidelines §4.23 & Box 4.1.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

As will be seen, RPS42 did DMJTs for Voyage as to its Masterplan for the Greenpark Lands43 generally and for its SHD planning application as to the SHD Site. RPS did not do any DPJT.

14. From the point of view of the OPR and the Minister and broadly, the logic of preferring Enterprise and Employment to Residential zoning in Flood Zones A and B is that Enterprise and Employment is, at least generally, less vulnerable to flooding. That is: vulnerable not in the sense of the likelihood of flooding, but in terms of the severity of the consequences of flooding. Crudely put, flooding homes is considered worse than flooding business premises.

RELIEFS SOUGHT & GROUNDS NOT PURSUED

15. Voyage seeks, essentially, the following reliefs:44

1) Certiorari quashing, as they affect the Subject Lands:

▪ The Ministerial Direction.

▪ All amendments to the Development Plan effected by the Ministerial Direction.

▪ Any steps taken by LCCC on foot of the Ministerial Direction.

▪ The Development Plan, to the extent required to ensure that the zoning of the Subject Lands is in accordance with law and/or is reinstated as per the Development Plan as adopted on 17 June 2022 (i.e. before its amendment by the Direction and with Residential zoning in accordance with MA 147).

2) A declaration that the Development Plan as adopted by the Members on 17 June 202245 shall have full force and effect as to the zoning of the Subject Lands (i.e. with Residential zoning in accordance with MA 147).

3) An order pursuant to s.50A(9) PDA 2000, declaring invalid or quashing the part or parts of the Development Plan, as amended by the Direction, which the court finds invalid.

4) A declaration that LCCC failed to adequately provide effective public participation in the decisionmaking process, contrary to the PDA 2000, as it failed to fully and fairly summarise the rationale for the Members’ decision of 17 June 2022 to approve MA 147 as to the Subject Lands - as a result of which subsequent decision and / or actions taken by the OPR and the Minister’s Direction are unlawful and void.

42 RPS Ireland Limited (NI) – Environmental Consultants.

Greenpark Masterplan FRA 18 December 2020, §6.2.

44 By its Amended Statement of Grounds of 16 February 2023. The numbering of the reliefs in the Amended Statement of Grounds was, due to

amendments, non-sequential. I have renumbered the reliefs sequentially. I have omitted minor and inessential reliefs. I have added some explanatory

text. The substance remains as pleaded.

i.e. before its amendment by the Direction.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

16. As LCCC points out, the only relief sought against it, on the basis of Core Ground 10, is a declaration that it failed to fully and fairly summarise, and hence to convey to the Minister, the Members’ reasons for their adoption of MA 147. The essential allegation is that, as LCCC failed to inform the Minister fully of its Members’ reasons for adopting MA 147, the Minister was deprived of information regard to which was essential to the validity of the Impugned Direction.

17. Voyage did not pursue Grounds 4, 12, 13 and 16. Of Ground 3, It did not pursue particulars §§3, 5, 6, and 9 leaving only §§4, 7, and 8 live.46

18. Without restricting consideration of the grounds pleaded and pursued, it may help to record by way of overview that counsel for Voyage alleged the following clear errors in the case: what he characterised as the respondents’ view that the Subject Lands:

• Had failed the DPJT for Residential zoning, when, in fact (as Voyage submits) the lands had passed the DPJT for Residential zoning down by the LCCC Members - as opposed to by the LCCC Executive.

• Had passed the DPJT for Enterprise & Employment Zoning when, in fact (as Voyage submits) the Lands failed Criterion §3 of the DPJT.

• Formed part of the Dock Road Strategic Employment Location (“DRSEL”) identified in the Limerick- Shannon Metropolitan Area Strategic Plan (“LSMASP”) contained in the Southern Region Regional Spatial & Economic Strategy (“RSES”).

MINISTERIAL DIRECTION

19. The Impugned Direction of 4 November 2022 directed LCCC, inter alia, to “[r]einstate the following zoning objectives to that of the draft Plan”.47 One of those five objectives was:

“(iv) MA no. 147 i.e. the subject land reverts to Enterprise and Employment/Open Space and Recreation from New Residential except in respect of the lands to be developed for housing under ABP SHD reference 311588.”48

20. The Minister’s reasons included the following as here relevant:

“II. Pursuant to section 31(1)(ba)(i),49 section 31(1)(b)50 and section 31(1)(c)51

46 Transcript Day 1 p46 et seq.

47 i.e. the draft plan as required by s.11 PDA 2000.

48 ABP SHD reference 311588 relates to the SHD of 371 houses to which I have referred above.

31.(1) Where the Minister is of the opinion that—(ba) a plan is not consistent with—(i) the national and regional development objectives set out in

the National Planning Framework and the regional spatial and economic strategy.

50 31.(1) Where the Minister is of the opinion that—(b) … the plan fails to set out an overall strategy for the proper planning and sustainable

development of the area.

31.(1) Where the Minister is of the opinion that—(c) the plan is not in compliance with the requirements of this Act.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

The Development Plan as made includes significant lands zoned in a manner that is inconsistent with National Planning Framework National Policy Objective 57,52 which seeks to avoid inappropriate development in areas at risk of flooding having regard to53 Ministerial Guidelines issued under Section 28 of the Act, The Planning System and Flood Risk Management, Guidelines for Planning Authorities (2009) (“the Flood Risk Guidelines”).

Significant lands have been zoned in the plan as made without passing the provisions of the sequential approach and plan-making Justification Test detailed in the Flood Risk Guidelines.

No or no adequate reasons or explanations relating to the proper planning and sustainable development of the area have been provided to explain why the lands have been zoned in such a way and how this approach is consistent with an overall strategy for the proper planning and sustainable development of the area.

Further, the statement under Section 28(1A)(b)54 attached to the Development Plan as made:

(a) fails to include information which demonstrates that the planning authority has formed the opinion that it is not possible to implement the policies and objectives outlined at (I) and (II), above, as contained in the Guidelines, because of the nature and characteristics of the area or part of the area and to give reasons for the forming of that opinion and to explain why it is not possible to implement the policies and objectives, contrary to Section 28(1B)(b); and

(b) fails to provide any or any adequate explanation, consistent with the requirement to deliver an overall strategy for the proper planning and sustainable development of the area, as to why the Development Plan provides for zoning of lands in a way that does not have regard to the policies and objectives set out in” the Flood Risk Guidelines, the Development Plans Guidelines55 and the Spatial Planning and National Roads Guidelines56.

52 Enhance water quality and resource management by: ensuring flood risk management informs place-making by avoiding inappropriate development

in areas at risk of flooding in accordance with The Planning System and Flood Risk Management Guidelines for Planning Authorities; ensuring that River

Basin Management Plan objectives are fully considered throughout the physical planning process; integrating sustainable water management solutions,

such as Sustainable Urban Drainage (SUDS), nonporous surfacing and green roofs, to create safe places.

53 NPO 57 uses the phrase “in accordance with”.

54 28. (1) The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities

shall have regard to those guidelines in the performance of their functions.

(1A) Without prejudice to the generality of subsection (1) and for the purposes of that subsection a planning authority in having regard to the

guidelines issued by the Minister under that subsection, shall — …

(b) append a statement to the draft development plan and the development plan which shall include the information referred to in subsection (1B).

(1B) The statement which the planning authority shall append to the draft development plan and the development plan under subsection (1A) shall

include information which demonstrates —

(a) how the planning authority has implemented the policies and objectives of the Minister contained in the guidelines when considering their

application to the area or part of the area of the draft development plan and the development plan, or

(b) if applicable, that the planning authority has formed the opinion that it is not possible, because of the nature and characteristics of the area or part

of the area of the development plan, to implement certain policies and objectives of the Minister contained in the guidelines when considering the

application of those policies in the area or part of the area of the draft development plan or the development plan and shall give reasons for the

forming of the opinion and why the policies and objectives of the Minister have not been so implemented. Ss (1A) and (1B) were Inserted by the Planning and Development (Amendment) Act 2010 (30/2010), s.20.

55 Development Plans Guidelines for Planning Authorities, June 2022.

Spatial Planning and National Roads Guidelines for Planning Authorities, January 2012.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

III. Pursuant to section 31(1)(a)(i)(II)57 and section 31(1)(b)58

The Development Plan has not been made in a manner consistent with and has failed to implement the recommendations of the Office of the Planning Regulator under Section 31 AM.

IV. Pursuant to section 31(1)(b)59

In light of the matters set out at I to III, above, the Minister is of the opinion that the Development Plan fails to set out an overall strategy for the proper planning and sustainable development of the area.

V. Pursuant to section 31(1)(c)60

In light of the matters set out at I to IV, above, the Development Plan is not in compliance with the requirements of the Act.”

21. As relevant to the Subject Lands, the Direction requires reversion to Enterprise and Employment zoning. None are to revert to Open Space and Recreation.

CORE OF CASE & PURPOSE OF IMPUGNED DIRECTION

22. As far as concerns these proceedings at least, differing views of flood risk and its effect on the development potential of the Subject Lands is the predominant controversy. Broadly, and subject to exceptions, planning policy is clear that flood-vulnerable development is inappropriate and to be avoided on

lands at significant risk of flooding. In light of the Ministerial Direction and my view, the core of this case lies

in the Minister’s assertion, which Voyage disputes, that LCCC zoned the Subject Lands inconsistently with NPO 57, which requires accordance with the Flood Risk Guidelines, in that they zoned the lands for Residential Development without their having passed the requirements of the Sequential Approach and the PMJT/DPJT stipulated in the Flood Risk Guidelines.

23. Voyage’s purpose in these proceedings is clear – to achieve Residential zoning of the Subject Lands. To that end, it has taken a two-pronged approach. It has asserted both that:

• Residential zoning of the Subject Lands has passed a valid DPJT and hence is not illegal.

• Enterprise and Employment zoning of the Subject Lands has not passed a valid DPJT and hence is illegal.

57 31.— (1) Where the Minister is of the opinion that (a) a planning authority, in making a development plan … has failed to (i) implement a

recommendation made to the planning authority by— (II) the Office of the Planning Regulator under section 31AM or 31AO.

58 31.— (1) Where the Minister is of the opinion that— (b) … the plan fails to set out an overall strategy for the proper planning and sustainable

development of the area.

59 Supra.

31.— (1) Where the Minister is of the opinion that— (c) the plan is not in compliance with the requirements of this Act.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

24. This juxtaposition of Enterprise and Employment zoning and Residential zoning arises in a context in which both zoning types represent flood-vulnerable land uses – broadly, the former the less so, the latter the more so. Accordingly the zoning of either on Flood Zone A lands is ordinarily inappropriate such that, for purposes of the Flood Risk Guidelines, it is allowable only on passing the Sequential Approach, including a DPJT.

25. Accordingly, even if, as the Minister and OPR assert, Residential zoning is illegal as not having passed a DPJT, Voyage could also be correct in asserting, as it does, that Enterprise and Employment zoning is illegal as not having passed a valid DPJT. Further, if both zonings are illegal for want of having passed a valid DPJT and both zonings were revisited by way of a proper DPJT in each case, it is possible that neither would pass. What, in that event, the consequence would be for the zoning of the lands and Voyage’s prospects of developing them can only be a matter of speculation at this point.

26. Strictly, if both zonings were illegal for want of having passed a DPJT, it would be anomalous for the court, by its discretionary refusal or grant of relief, to create a situation in which either is applied to the Subject Lands. Yet as the pleadings and the history of the case present themselves to me, I am offered only one zoning possibility or the other. One way or another, and as to Voyage’s clear ultimate purpose in this matter, I cannot see it as possible to uphold MA 147 and the Residential zoning of the lands if, indeed, such Residential zoning is illegal.

27. In form, the Impugned Direction is that the MA 147 Lands “revert” from Residential to Enterprise and Employment zoning. The formal reason for the Direction was, in essence, the alleged illegality of the Residential zoning applied by the Members by way of MA 147. However, on an overview of the papers and interpreting the Impugned Direction in context, it is very clear that the primary focus of the CE, the OPR and the Minister and of the Impugned Direction was very predominantly on a concern, grounded predominantly in the NPO 57 requirement of accord with the Flood Risk Guidelines, to remove the zoning of the MA 147 lands for highly flood-vulnerable residential development on lands in Flood Zone A. On an overview of the papers, I accept as accurate the opening remarks of counsel for the OPR that:

“… the central concern of the OPR throughout this process has been that we should not been zoning land in floods zones for highly vulnerable developments such as Residential development. That's the highest category of vulnerability for flooding. And that in fact is one of the central tenets of our national planning policy relating to proper planning and sustainable development, and it's also a key aspect of our national policy relating to adaptation to the effects of climate change.”

“… the central reason the Minister's making a direction is that the material amendment 147 was inconsistent with NPO57 of the NPF and the requirement not to locate development inappropriately in areas susceptible to flooding in accordance with the flood guidelines.” 61

Transcript Day 3 pp4 & 5.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

28. That this was the focus of the OPR’s involvement as it related to the Subject Lands was, I am satisfied, also inevitably clear to all involved in the process, including Voyage and the Members of LCCC. The OPR’s anxiety was not to positively achieve Enterprise and Employment zoning. The “reversion” involved was to the less flood-vulnerable zoning which had been envisaged in the Draft Plan. I accept the State’s submission that the real nature and purpose of the Direction lay in the removal of the Residential zoning and its resultant zoning thereafter – whether for water-compatible uses or less flood-vulnerable uses – was not material to the Direction. In substance, the reinstatement of the Enterprise and Employment zoning was a consequence of the Direction but not its purpose – it was an effect, not a cause.

29. This position is in effect mirrored by Voyage’s true anxiety in the proceedings – which is not to quash the Enterprise and Employment zoning (the quashing of which it views as a means not an end). It is to positively achieve a Residential zoning. From Voyage’s point of view that ambition is, it seems to me, the crux of the case.

JUSTICIABILITY OF OPR RECOMMENDATIONS

30. Section 31(1)(a)(i)(II) PDA 200062 authorises the Minister to issue a direction on the basis only that a planning authority has failed to implement an OPR recommendation. It follows that it must be competent in an applicant for judicial review to seek to quash the underlying OPR recommendation in question or at least to seek a declaration as to its legality. Were the legality of such OPR recommendations non-justiciable then, in effect, ministerial directions based on non-compliance with such recommendations would be in substance non-justiciable. That cannot be.

31. The Amended Statement of Grounds seeks no relief quashing any OPR recommendations. However, the grounds on which relief is sought impugn the OPR’s s.31AM(8) Notice as ultra vires and invalid.63 They do not impugn the OPR’s s.31AN Notice - on the recommendation of which the Minister’s Direction was proximately based.

CONSISTENCY OF DEVELOPMENT PLAN WITH NPF - Ss 10 & 12(18) PDA 2000 & KILLEGLAND

32. Section 10 PDA 2000 stipulates the required content of a development plan. Section 12 PDA 2000 prescribes the process for making a development plan.

62 31.— (1) Where the Minister is of the opinion that— (a) a planning authority, in making a development plan … has failed to— (i) implement a

recommendation made to the planning authority by— (II) the Office of the Planning Regulator under section 31AM or 31AO.

See Grounds 1 & 8.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

33. Sections 10(1), (1A) & (2A) PDA 2000 provide as follows:64

“(1) A development plan shall set out an overall strategy for the proper planning and sustainable development of the area of the development plan and shall consist of a written statement and a plan or plans indicating the development objectives for the area in question.

(1A) The written statement referred to in subsection (1) shall include a core strategy which shows that the development objectives in the development plan are consistent, as far as practicable, with

• national and regional development objectives set out in the National Planning Framework and the regional spatial and economic strategy and

• with specific planning policy requirements specified in guidelines under subsection (1) of section 28.”65

(2A) Without prejudice to the generality of subsection (1A), a core strategy shall —

(a) provide relevant information to show that the development plan and the housing strategy are consistent with the National Planning Framework and the regional spatial and economic strategy and with the specific planning policy requirements specified in guidelines under subsection (1) of section 28”.

34. Section 12(18) PDA 2000 also states the statutory obligation of the planning authority “to ensure that the development plan is consistent with — (a) the national … development objectives specified in —

(i) the National Planning Framework.”

35. In Killegland,66 Hogan J said that:

“… the overall effect of these provisions is to constrain to some degree the Council and the elected members so far as the making of development plans are concerned. Some allowance must, of course, be made for the large scale nature of this exercise and it would be unrealistic to expect perfect consistency or alignment with national planning guidelines or frameworks such as the NPF.

The elected members are, nonetheless, not at large, and any such development must align itself at least in general with certain national and local policy objectives. In Highlands Residents67 … McDonald J. made comments to similar effect when he remarked ... that the provisions of s.10(1A) of the 2000 Act were ‘clearly designed to ensure that the development objectives in a development plan are consistent, as far as practicable, with national and regional development objectives.’ In many ways the key question so far as this appeal is concerned is the extent to which the operation of the NPF is intended to be prescriptive. I read this language as meaning consistent generally, as distinct from complying in every detailed and minor particular.”68

64 A more complete account of the statutory framework is found in Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, [2023] 12 JIC

2109, §87 et seq, but what follows suffices here.

65 Layout altered for exposition.

66 Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, [2023] 12 JIC 2109, §100.

67 Highlands Residents Association v An Bord Pleanála [2020] IEHC 622, §39.

Emphases added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

36. Hogan J considered the particular NPOs of the NPF69 at issue in that case to be “largely precatory and aspirational”.70 Those NPOs related to issues of compact and sequential sustainable urban development, preferring development of brownfield and infill sites close to the cores of urban settlements. What Hogan J considered was required of the development plan was general consistency with the NPOs in question, considered on a countywide basis. I considered these issues in somewhat greater detail than I do here and took a similar countywide view in Mount Salus.71

37. However, Hogan J does not appear to me to have held that all NPOs were inevitably precatory and aspirational. That seems to me to be a matter of the interpretation of the particular NPO in question.

38. Also, countywide consideration may operate in different ways. On the facts in Mount Salus, the failure to consider the adequacy of the quantum of provision of residentially zoned lands elsewhere in the county weighed against the impugned ministerial direction requiring deletion of a development plan objective discouraging residential development in architectural heritage areas of Killiney and Dalkey along the DART/rail line. Here, the same factor - the adequacy of the quantum of provision of residentially zoned lands elsewhere in the county - weighs in favour of the Impugned Direction as tending to undermine, in the application of the Flood Risk Guidelines Sequential Approach, the need for residential development on the Subject Lands in Flood Zone A.

REGARD TO, NOT COMPLIANCE WITH, GUIDELINES – S.28 PDA 2000 & JONES

39. As has been seen, the Minister’s Direction asserts that the Development Plan adopted by the Members breached s.28(1A)(b) PDA 200072 in that it failed to adequately explain, consistent with the requirement of an overall strategy,73 why the Plan zones lands without regard to the policies and objectives of certain guidelines, including the Flood Risk Guidelines.

69 National Policy Objectives of the National Planning Framework 2018.

70 §103.

71 Mount Salus Residents' Owners Management Company v An Bord Pleanála & Ors [2025] IEHC 14.

72 28.— (1) The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning

authorities shall have regard to those guidelines in the performance of their functions.

(1A) Without prejudice to the generality of subsection (1) and for the purposes of that subsection a planning authority in having regard to the

guidelines issued by the Minister under that subsection, shall —

(b) append a statement to the draft development plan and the development plan which shall include the information referred to in subsection (1B).

(1B) The statement which the planning authority shall append to the draft development plan and the development plan under subsection (1A) shall

include information which demonstrates—

(a) how the planning authority has implemented the policies and objectives of the Minister contained in the guidelines when considering their

application to the area or part of the area of the draft development plan and the development plan, or

(b) if applicable, that the planning authority has formed the opinion that it is not possible, because of the nature and characteristics of the area or part

of the area of the development plan, to implement certain policies and objectives of the Minister contained in the guidelines when considering the

application of those policies in the area or part of the area of the draft development plan or the development plan and shall give reasons for the

forming of the opinion and why the policies and objectives of the Minister have not been so implemented. Ss (1A) and (1B) were Inserted by the Planning and Development (Amendment) Act 2010 (30/2010), s.20.

For the proper planning and sustainable development of the area.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

40. Section 28 PDA 200074 reads, in part, as follows:

28.— (1) The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities shall have regard to those guidelines in the performance of their functions.

(1A) Without prejudice to the generality of subsection (1) and for the purposes of that subsection a planning authority in having regard to the guidelines issued by the Minister under that subsection, shall —

(a) consider the policies and objectives of the Minister contained in the guidelines when preparing and making the draft development plan and the development plan, and

(b) append a statement to the draft development plan and the development plan which shall include the information referred to in subsection (1B).

(1B) The statement which the planning authority shall append to the draft development plan and the development plan under subsection (1A) shall include information which demonstrates —

(a) how the planning authority has implemented the policies and objectives of the Minister contained in the guidelines when considering their application to the area or part of the area of the draft development plan and the development plan, or

(b) if applicable, that the planning authority has formed the opinion that it is not possible, because of the nature and characteristics of the area or part of the area of the development plan, to implement certain policies and objectives of the Minister contained in the guidelines when considering the application of those policies in the area or part of the area of the draft development plan or the development plan and shall give reasons for the forming of the opinion and why the policies and objectives of the Minister have not been so implemented.

41. Sections 28(1A) and (1B) are, frankly, confusing when read with s.28. The language of regard to guidelines in s.28 transmutes in ss.28(1A) and (1B) to the quite different language of implementation. The light burden generally imposed by s.28 - a statutory duty merely of regard to a guideline - is well-established in the caselaw. As Humphreys J said in Cork County Council v Minister for Housing,75 “[n]o kind of compliance is required by a have-regard obligation, merely regard.” It could have been suggested however that the insertion in 2010 of ss.28(1A) and (1B), considering them in isolation and noting their requirements that a development plan demonstrate how its makers have implemented the policies and objectives stated in guidelines and state and give reasons for their opinion, if any, that such implementation was not possible, impliedly transformed the obligation, as it arises in the making of a development plan, from one of regard to one of implementation of guidelines. One might imagine that an obligation to demonstrate implementation and to explain non-implementation must be premised on an obligation to implement in the first place. And implementation is difficult to distinguish from compliance – of which, the cases are clear, no kind is required.

74 Ss.(1A) and (1B) were inserted by s.20 of the Planning and Development (Amendment) Act 2010 (30/2010).

Cork County Council v Minister for Housing [2021] IEHC 683.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

42. A comparison of s.28 on the one hand, and ss.28(1A) and (1B) on the other, does not readily appear to me to meet the requirements of Collins J in Spencer Place76 when he observed that:

• Where the Oireachtas legislates to transfer competence from planning authorities to the Minister, it “should do so clearly and precisely” and not by a sidewind.

• The courts should avoid giving such legislation effect beyond what is clearly provided for.

43. But, as in all statutory interpretation, considering provisions in isolation is incorrect and context is important - A, B & C.77 In Jones,78 arguably obiter but in any event persuasively, Humphreys J considered s.28 as it applies to the making of development plans. He did so in the context of s.10, which he considered: “foundational to the whole relationship between national and local decision-makers, who require and deserve certainty and clarity as to their respective rights and duties” (the latter phrase echoing Collins J in Spencer Place). Humphreys J concluded that what s.28(1B) required:

“… is the council’s view as to how it has implemented the policies and objectives, not that it has implemented every detail in a mandatory manner. The contextual premise of that wording is that it is expressly set out in ss. 10 and 28 that only the SPPRs79 are mandatory, so insofar as the council has a discretion and margin of appreciation in relation its actions having had regard to the other provisions of guidelines, it will be giving an account of how it has exercised that discretion rather than being mandatorily required to state that it has complied with every detail. … The comply with/have regard to distinction is central and foundational, and the statement showing ‘how’ implementation occurred involves the council showing how it exercised the margin of appreciation inherent in the former foundational distinction. Any more imperative interpretation creates immediate statutory contradiction and confusion.”

44. Taking this passage as a whole and in the context of his treatment of the issue generally, I do not think that by the words “every detail” Humphreys J intended to suggest an obligation of any lesser or general degree of compliance with guidelines or, indeed, any obligation of compliance at all – other than with SPPRs. This is apparent in his later reference to “misconceived and unsustainable pleaded claims to the effect that there was any obligation to comply with the relevant guidelines. When we subtract those misconceptions of

the statutory position, all that’s left is the complaint that the decision ‘failed to … have any or any adequate

regard’ to the guidelines.”80 So, in adopting a development plan and SPPRs apart, members are obliged by s.28 PDA 2000 to have regard to but need not comply with or - which is the same thing - implement, guidelines. That is so no matter how strident or mandatory are the terms in which a guideline is expressed.

45. I consider that the view taken by Humphreys J in Jones, as I have above stated my understanding of those views, is consistent with the view of Collins J in Spencer Place which I have set out above.

Spencer Place Development v Dublin City Council [2020] IECA 268, [2020] 10 ICLMD 96.

77 A, B & C v Minister for Foreign Affairs [2023] 1 ILRM 335, §73.

78 Jones v South Dublin County Council [2024] IEHC 301, §153 et seq.

79 Specific planning policy requirements set out in Guidelines - consistency with which, as far as practicable, is mandatory by s.10(1A) PDA 2000.

§161.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

46. Frankly, for the reasons set out above, the statutory text of ss.28(1A) and (1B) is in this regard unhelpful. Nonetheless, ss.28(1A) and (1B) do impose an obligation on members as to the terms of their development plans, perhaps best described as one of description and explanation of their regard to - rather than implementation of - guidelines. The Minister is, in principle, entitled to assert breach of that obligation. Voyage’s position is that LCCC’s Members had decided that their zoning the Subject Lands for Residential Use complied with the Flood Risk Guidelines such that no need for a statement explaining nonimplementation arose. As Voyage’s counsel explained, that effectively brings the case back to the substantive question of regard to or compliance with the Flood Risk Guidelines.81

NPO 57 (FLOOD RISK) & FLOOD RISK GUIDELINES

FLOOD RISK GUIDELINES – LEGAL STATUS AS TO DEVELOPMENT PLANS CONTENT IN LIGHT OF NPO 57

47. NPO 57 of the NPF reads in part:

“Enhance water quality and resource management by:

Ensuring flood risk management informs place-making by avoiding inappropriate development in areas at risk of flooding in accordance with The Planning System and Flood Risk Management Guidelines for Planning Authorities.”82

48. The NPF text83 supporting NPO 57 includes the following:

• “Flooding is a cross-sectoral issue that can affect all aspects of life, and that can be influenced, positively or detrimentally, by actions in many other sectors. Of particular importance is the consideration of potential future flood risk in the area of planning and development management”.

• “Core objectives” include:

o Avoiding inappropriate development in areas at risk of flooding.

o Avoiding new developments increasing flood risk elsewhere, including that which may arise from surface run off.

o Ensuring effective management of residual risks for development permitted in floodplains.

o Avoiding unnecessary restriction of national regional or local economic and social growth.

o Improving the understanding of flood-risk and ensure flood risk management in accordance with best practice.

49. The Flood Risk Guidelines were promulgated in 2009 pursuant to s.28 PDA 2000. Though they are phrased in many instances in mandatory terms as if compliance was obligatory, as stated above and as they

81 See generally Transcript Day 2 p9 et seq.

82 i.e. the Flood Risk Guidelines. Emphases added.

§9.3 Protecting Conserving and Enhancing our Natural Capital - Water Resource Management and Flooding.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

are s.28 guidelines, the duty of a planning authority in making a development plan is merely to have regard to them. It is fundamental that “have-regard-to type guidelines do not become mandatory just because the Minister puts mandatory words in them”, no matter how “strident” – Cork County Council.84 “Mandatory language in non-mandatory guidelines … doesn’t make such guidelines mandatory” – Jones.85

50. However, as I said earlier, the State in effect says that the Government’s adoption of NPO 57 has transmuted the straw of a s.28 obligation of mere regard to the Flood Risk Guidelines into the gold86 of a statutory obligation of compliance. It submits that:

• NPO 57 differs from the NPOs at issue in Killegland. NPO 57 is not precatory or aspirational. It is explicitly mandatory and specific and suited to discrete application to particular sites. The words “ensuring”,

“inappropriate” and “in accordance with” are instanced. It cites by analogy the view taken by Humphreys J in

Four Districts 87 of similar wording in a development plan.

• The combined effect of NPO 57 and ss.10 & 12 PDA 2000 is to transmute the non-mandatory terms of the Flood Risk Guidelines to mandatory effect to the extent of the statutory requirement of consistency with NPO 57. As has been seen, in a development plan the core strategy is to show that the development objectives are consistent, as far as practicable, with NPOs set out in the NPF88 and that the development plan and the housing strategy are consistent with the NPF.89 And the planning authority is to “to ensure that the development plan is consistent with NPOs set out in the NPF”.90

51. As to the first of these submissions, in my view, NPO 57 is not precatory or aspirational in the sense found in Killegland. Rather it imposes clear requirements to “ensure”, in making development plans, “accordance” with the Flood Risk Guidelines. Core to this objective is avoiding inappropriate development in areas at risk of flooding.

52. As to the second, I confess to some unease that the Government, by adopting an NPO, could in effect amend the clear terms of s.28 PDA 2000 in its requirement merely of regard to Guidelines. That unease is assuaged somewhat in that s.20C(8) PDA 2000 requires that the Government submit the draft of any revised or new NPF,91 for the approval of each House of the Oireachtas before it is published. Notably, active approval is required – not merely absence of annulment.92 Though one may detect in the judgment of

84 Cork County Council v Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683, [2021] 11 JIC 0501, §§45 & 36.

85 Jones v South Dublin County Council [2024] IEHC 301, §172.

86 From its point of view.

87 Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335 §118 et seq. The development Plan objective was “To ensure that the

density of residential development makes efficient use of zoned lands and maximises the value of existing and planned infrastructure and services,

including public transport, physical and social infrastructure, in accordance with” the Urban Residential Guidelines 2009.

88 s.10(1A) PDA 2000.

s.10(2A) PDA 2000.

90 s.12(18) PDA 2000.

91 Together with the Environmental Report and Appropriate Assessment Report.

92 Contrast, for example, s.3A of the European Communities Act 1972 as amended which provides that regulations effecting EU law be laid before each

House of the Oireachtas – either of which may, by resolution annul the regulation.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Charleton J in NECI93 some mild scepticism as to the reality of the resultant supervision by the Oireachtas in some cases, it is not difficult to imagine a reasonably keen interest in the Oireachtas in the terms of the NPF.

53. There is in this case no challenge to the terms of the NPF or NPO 57. There is no challenge the legislative provisions for the adoption of the NPF or the legislative provisions describing its relationship to development plans and the obligations it imposes on elected members of planning authorities as to the terms in which they adopt development plans. Indeed Voyage accepted that NPO 57 rendered compliance with the Flood Risk Gudelines mandatory but later drew back from that acceptance.94

54. In the foregoing circumstances, albeit with some unease at the indirectness of the effect and while refraining from laying down any general principle, I think it proper to accept the State’s submission that in this particular instance, NPO 57, read with ss.10 and 12 PDA 2000, must be understood as imposing on elected members, in adopting development plans, an obligation to ensure that their content accords with the Flood Risk Guidelines – an obligation which supersedes the obligation merely of regard to those guidelines imposed by s.28 PDA 2000. It further follows, in that particular and unusual context, that the mandatory terms of the Flood Risk Guidelines (see below) assume amplified force.

55. In short and as to zoning in development plans, while allowing for the exceptions prescribed by the Flood Risk Guidelines, it can be said as a general matter that the duty to avoid zoning for inappropriate, flood-vulnerable, development in Flood Zones A and B is both mandatory and strong.

FLOOD RISK GUIDELINES – CONTENT

56. The Flood Risk Guidelines state, inter alia:95 a. The Government places high and critical importance on planning and development measures as part of adaptation to climate change and flood risk management and urges elected members to implement the guidelines fully in reviewing development plans, especially in zoning land for development. The Guidelines require the planning system to avoid development in areas at risk of flooding unless proven wider sustainability grounds justify it.96

b. The Guidelines require a systemic approach to the avoidance or minimisation of potential flood risk.

They outline methodologies for the transparent consideration of flood risk at all levels of the planning process, ensuring a consistency of approach throughout the country.97

93 Náisiúnta Leictreach Contraitheoir Éireann (NECI) v Labour Court, Minister for Business, Enterprise and Innovation, Ireland and the Attorney General

[2021] IESC 36, [2021] 2 ILRM 1, Charleton J, §9.

94 Transcript Day 2 p85 et seq

95 What follows here is edited somewhat.

96 Flood Risk Guidelines, Forward. Emphases added.

Flood Risk Guidelines, Objectives of the Guidelines §1.7.

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c. The core objectives of the Guidelines include to:

▪ Avoid inappropriate development in areas at risk of flooding;

▪ Avoid development increasing flood risk elsewhere, including by surface water run-off;

▪ Ensure effective management of residual risks for development permitted in floodplains;

▪ Avoid unnecessary restriction of national, regional or local economic and social growth;

▪ Ensure that EU law and national law requirements as to the natural environment and nature conservation are complied with at all stages of flood risk management.98 d. In achieving the Guidelines’ objectives, the key principles, to be adopted by all,99 are to:

▪ Avoid flood risk, where possible;

▪ Substitute less vulnerable uses, where Avoidance is not possible; and ▪ Mitigate and manage the risk, where Avoidance and Substitution are not possible.100 e. Planning authorities will “ensure” that development is not permitted in areas of flood risk except where there are no suitable alternative sites available in areas at lower risk that are consistent with the objectives of proper planning and sustainable development.

f. Where development in areas of flood risk must occur, in the case of urban regeneration for example, the type of development has to be carefully considered and the risks mitigated and managed through location, layout and design to reduce flood risk to an acceptable level.101 g. Planning authorities will assess planning applications in accordance with the Guidelines, following the guidance of their own or any OPW Strategic Flood Risk Assessment and the Sequential Approach and, if necessary, the Justification Test required by the Guidelines.102 h. Flood zones are geographical areas within which the likelihood of flooding is in a particular range.

They are a key tool in flood risk management in the planning process. There are three levels of flood zones, defined only by the probability of flooding from rivers and the sea:

▪ Flood Zone A – the probability is highest.103 ▪ Flood Zone B – the probability is moderate.104 ▪ Flood Zone C – the probability is low.105 Zone C covers all areas not in Zones A or B.

Floodplains are primarily found in Flood Zones A and B.

In rivers with a well-defined floodplain or where the coastal plain is well defined at its rear, the limits of Zones A and B will virtually coincide (this is so in the Subject Lands).106 i. Flood protection measures significantly reduce flood risk. Residual risk is that flood risk remaining despite flood protection measures. However, they should be ignored in determining flood zones. This is because protected areas still carry a residual risk of flooding from overtopping or breach of defences and

98 Flood Risk Guidelines, Objectives of the Guidelines §1.6.

99 Regional and local authorities, developers and their agents.

100 Flood Risk Guidelines, Objectives of the Guidelines §1.8.

101 Flood Risk Guidelines, Overview of the Guidelines §10. Emphasis added.

Flood Risk Guidelines, Overview of the Guidelines §9.

103 (greater than 1% or 1 in 100 for river flooding or 0.5% or 1 in 200 for coastal flooding).

104 (between 0.1% or 1 in 1000 and 1% or 1 in 100 for river flooding and between 0.1% or 1 in 1000 year and 0.5% or 1 in 200 for coastal flooding).

105 (less than 0.1% or 1 in 1000 for both river and coastal flooding).

Flood Risk Guidelines, §§2.23 & 2.24.

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the fact that there may be no guarantee that the defences will be maintained in perpetuity. Indeed the Guidelines’ approach is that “the presence of a flood defence indicates an area at risk, not one that is safe.”107

I observe that this means that, as flood zoning determines what types of development are generally appropriate/inappropriate in a location, that issue is determined without regard to flood defences, such that, to be allowable, inappropriate development must pass the Sequential Approach and a Justification Test.108

57. Chapter 3 of the Flood Risk Guidelines sets out the “key principles of a risk-based sequential approach to managing flood risk in the planning system.” They are summarised as:

• Avoid development in areas at risk of flooding.

• If this is not possible, consider substituting a land use less vulnerable to flooding.

• Only failing Avoidance and Substitution, should risk mitigation and management be considered.

• Inappropriate types of development that would create unacceptable risks from flooding should not be planned for or permitted.

• Exceptions to the restriction of development due to potential flood risks are provided for through the use of a “Justification Test”, where planning need and sustainable management of flood risk to an acceptable level must be demonstrated.109

58. Applicable planning principles include:110

• The Sequential Approach is a “key tool in ensuring that development … is first and foremost directed towards land that is at low risk of flooding.”

• Avoidance – “Development should preferentially be located in areas with little or no flood hazard.”

• “Development should only be permitted in areas at risk of flooding when there are no alternative reasonable sites available in areas at lower risk that also meet the objectives of proper planning and sustainable development.”

• Substitution - “Where development is necessary in areas at risk of flooding an appropriate land use should be selected.”

• SEA111 of development plans should include flood risk as a key environmental criterion, assess flood risk with respect to other planning and environmental considerations and show how the sequential approach to managing flood risks has been executed.112

107 Flood Risk Guidelines, §2.25, §3.4, p71.

See below.

109 Flood Risk Guidelines, p21.

110 Flood Risk Guidelines, §3.1.

111 Strategic Environmental Assessment.

See also Flood Risk Guidelines, §3.10. and Ch.4 Key messages and §4.7 et seq.

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Simons J noted this text in Heather Hill113 and I note in particular the words “key”, “ensuring” and “first and

foremost directed”. Not infrequently - even often - that will imply direction of development away from lands owned by one party towards lands owned by others.

59. Chapter 3 of the Guidelines expands on these principles in some detail. It states:

“In summary, the planning implications for each of the flood zones are:

Zone A - High probability of flooding. Most types of development would be considered inappropriate in this zone. Development in this zone should be avoided and/or only considered in exceptional circumstances, such as in city and town centres, or in the case of essential infrastructure that cannot be located elsewhere, and where the Justification Test has been applied.114

Zone B - Moderate probability of flooding. Highly vulnerable development, such as hospitals, residential care homes, Garda, fire and ambulance stations, dwelling houses and primary strategic transport and utilities infrastructure, would generally be considered inappropriate in this zone, unless the requirements of the Justification Test can be met.115

Zone C - Low probability of flooding. Development in this zone is appropriate from a flood risk perspective”.116

60. It seems to me important to bear constantly in mind, in considering this case, not least Voyage’s submissions critiquing the OPR’s analysis, that:

• Development in Zone A may only be considered in exceptional circumstances.

• So the strong default is that Zone A land is not to be zoned for development.

• Before zoning Zone A land for development, the planning authority must be satisfied that it can clearly the demonstrate on a solid evidence base that the zoning will satisfy the Sequential Approach and the Justification Test.117

61. In other words, the issue for members adopting a development plan is not whether it has been shown that zoning for development in Flood Zone A is contraindicated – the starting and strong presumption is that it is contraindicated and the burden for those advocating it is to demonstrate exceptional circumstances to justify it.

113 Heather Hill v An Bord Pleanála [2009] IEHC 450.

114 Emphasis added. The text continues: “[o]nly water-compatible development, such as docks and marinas, dockside activities that require a waterside

location, amenity open space, outdoor sports and recreation, would be considered appropriate in this zone.”

115 The text continues: “Less vulnerable development, such as retail, commercial and industrial uses, sites used for short-let for caravans and camping

and secondary strategic transport and utilities infrastructure, and water-compatible development might be considered appropriate in this zone. In

general however, less vulnerable development should only be considered in this zone if adequate lands or sites are not available in Zone C and subject

to a flood risk assessment to the appropriate level of detail to demonstrate that flood risk to and from the development can or will adequately be

managed.”

116 Flood Risk Guidelines, §3.5.

Flood Risk Guidelines, §4.32.

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62. It is clear that lands may be “de-zoned” or “down-zoned” for flood risk.118 The Guidelines note that identification in the development plan-making process of flood risk to undeveloped areas zoned for development in previous development plans requires reconsideration of such zoning and responses may include replacement of the existing zoning with a zoning or a specific objective for less flood-vulnerable uses.119 That logic must also apply to a case where, as here, the flood risk was identified in the previous plan but the lands were nonetheless zoned for inappropriate development in the absence of a supportive DPJT. In any event, such an approach is, of course, consistent with s.10(8) PDA 2000 which rules out “any presumption in law that any land zoned in a particular development plan … shall remain so zoned in any subsequent development plan.”

63. Of some note, the Guidelines identify the OPW120 as a statutory consultee for development plans and “the lead agency for implementing flood risk management policy in Ireland. As such, planning authorities should ensure that they consult effectively with the OPW at the start of the plan preparation and take careful account of observations made by the OPW on flood-related matters.”121

64. Chapter 3 of the Guidelines requires that the “Sequential Approach” to developing in Flood Zones A and B “be applied to all stages of the planning and development management process. It is of particular importance at the plan-making stage”.122 It applies:

• Flood risk assessment;

• Prior identification of flood zones; and

• Classification of the vulnerability to flooding of different types of development.123 Dwellings are classed as “highly vulnerable”.124

65. Though complex, the “Sequential Approach” is summarised as follows:125

118 The concepts of “dezoning” or “downzoning” are colloquial not technical or terms of art. But their general meaning will be understood.

119 Flood Risk Guidelines, §§4.26 & 4.27.

120 Office of Public Works.

Flood Risk Guidelines, §4.12.

122 Flood Risk Guidelines, §3.2.

123 Flood Risk Guidelines, §3.3.

124 Flood Risk Guidelines, Table 3.1 Classification of vulnerability of different types of development.

See Flow Chart, Flood Risk Guidelines, Fig. 3.2: Sequential approach mechanism in the planning process.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Figure 2: Sequential Approach in Flood Risk Management - Flood Risk Guidelines126

Pre-Sequential Approach – Step 1 – Identification of Specific Zoning/Development Proposal

66. Importantly, though the figure above does not make it clear,127 the first task is identification of a specific zoning proposal (in the case of DPJT) or a specific development proposal (in the case of a DMJT). Voyage pleads: “[n]ext, the flood zone in which the particular zoning is located is considered to determine whether the zoning of the lands for the particular use or development type is highly vulnerable or less vulnerable.” 128 This plea, though colloquially understandable, is unhelpful. It confuses the terminology used in the Guidelines. In that terminology, land-use zoning is not “vulnerable” – development types are. Flood

zones are categorised in terms of “probability” of flooding. Land use zoning is either allowable or not in light

of the correlation between the probability of flooding of the land (flood zoning) and the vulnerability of the proposed development type to flooding if it occurs.

Pre-Sequential Approach – Step 2 - Parts 1 to 4

67. Correctly, prior to applying the Sequential Approach to development plan making and having identified the specific zoning proposal, i.e. the development type at issue, the next step has four parts:

68. First comes identification of the flood-vulnerability of the type of development envisaged. The Guidelines say that:

“The vulnerability of development to flooding depends on the nature of the development, its occupation and the construction methods used. … A broad classification of vulnerability has been developed… . The classification of different land uses and types of development as highly vulnerable, less vulnerable and water-compatible is influenced primarily by the ability to manage the safety of

126 Flood Risk Guidelines, Fig 3.1.

127 It is made clear in the Flood Risk Guidelines Flow Chart - Fig. 3.2: Sequential approach mechanism in the planning process.

Amended Grounds §63.

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people in flood events and the long-term implications for recovery of the function and structure of buildings.”

This “broad classification” is found at “Table 3.1 Classification of vulnerability of different types of development”. It lists specific types of development as highly or less vulnerable. Inter alia, dwellings, hospitals and schools are highly vulnerable: retail, leisure, warehousing, commercial, industrial and nonresidential institutions are less so.

69. However, land-use zoning in development plans will not always, or even generally, map precisely onto the Guidelines’ division of development types as between highly and less vulnerable development. Many factors other than flood vulnerability properly influence the content of land-use zoning objectives as they list types of development acceptable in principle or open to consideration. It should be no surprise that a given zoning objective may accept in principle a mix of highlyand less-flood-vulnerable development types – doing so for reasons of proper planning and sustainable development which have nothing to do with flooding. The obvious and common example is mixed-use zoning. In those cases, a broad overview of the flood-vulnerability of the development envisaged by a land-use zoning category may have to be taken at development plan-making stage in allowing a zoning to be applied in Flood Zones A and/or B in anticipation that, in due course, a DMJT will, if needs be, exclude particular subtypes of unacceptable development.

70. Conveniently for the present case as it simplifies matters, Table 3.1 is clear that all types of residential development are highly vulnerable. In notable contrast, the typical uses of “Enterprise and Employment” lands are identified in the Flood Risk Guidelines129 as “less vulnerable” and/or “water compatible”.

71. The second part of the second step is identification of the flood zoning of the lands in question. As stated this is a function of the probability of its flooding. It is generally achieved by reference to OPW “CFRAM” flood risk mapping.130 As has been seen, Flood Zones A, B and C denote respectively, high, moderate and low risk of flooding.

72. Third, the vulnerability of the proposed development type is cross-referenced to the flood zoning to determine, as to flood risk, whether the proposed development type is “Appropriate” for the lands in question. Table 3.2 of the Guidelines correlates vulnerability of development to flood zones to illustrate when zoning for a development type is appropriate. If it is appropriate then, as concerns flood-risk, the zoning may proceed.

129 Flood Risk Guidelines p25 - notably, less vulnerable uses include buildings used for retail, leisure, warehousing, commercial, industrial and

non-residential institutions.

130 Catchment Flood Risk Assessment and Management. The Office of Public Works has mapped flood risks in river catchments nationally with a view to

informing Flood Risk Management Plans.

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73. Fourth, and as to inappropriate development, the question arises whether zoning for it is nonetheless “Allowable”131 on application of the Sequential Approach. Table 3.2 of the Guidelines also flags this issue. I set out below an edited version of Table 3.2 which, I am satisfied, accurately expresses and, I hope clarifies, the position stated in the Guidelines as it relates to land-use zoning decisions.

Is Land Use Zoning Appropriate or Allowable? Development Flood Zone (probability of flooding) Vulnerability A - (High) B - (Moderate) C – (Low)

Inappropriate – Inappropriate – Highly vulnerable Land Use Zoning allowed only if Land Use Zoning allowed only if (includes dwellings)132 passes Sequential Approach passes Sequential Approach Appropriate including DPJT including DPJT133 Less vulnerable Appropriate Water-compatible Appropriate

Table: Flood Zone/Development Vulnerability Matrix

74. The Sequential Approach arises only as to inappropriate development – if the development is appropriate to the location, flood-risk concerns do not arise. The Sequential Approach determines whether the land may be zoned for such development even though it is inappropriate. And in applying that Approach, it must always be borne in mind that highly vulnerable development in Flood Zone A is, by the Guidelines, explicitly “exceptional”.

Sequential Approach - Steps 1 & 2 – Avoidance & Substitution

75. To state the obvious, what characteries a Sequential Approach is a sequence. Overall, it has been difficult to avoid the impression from the papers of a tendency in all quarters to, as it were, rush to the JT. Importantly, justification is the third, not the first, recourse in the Sequential Approach.

76. The “key principle” of Avoidance is the first hurdle in seeking zoning of inappropriate development in a Flood Zone. It requires that the landowner demonstrate on a solid evidence base that Avoidance is impossible. It seems to me useful to observe that the Avoidance principle can be characterised also as a

“Necessity” principle. If a particular type of development can be avoided in a flood zone it is not necessary to

develop it in that flood zone and only if it is necessary to develop it in that flood zone can it be said that it cannot be avoided.

131 Allowable is not a term of art in the Guidelines. I have adopted it as useful.

132 Including essential infrastructure.

Development Plan Justification Test – see below.

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77. This principle seems to me to have at least two possible aspects as concerns zoning in Flood Zones A or B:

• If zoning the lands for the development type in question is unnecessary, do not zone for it.

Necessity seems to me to be a function of requirements of proper planning and sustainable development rather than of the interests of the landowner – though I would not rule out that such interests could be relevant in a particular unusual case. Zoning might be unnecessary, for example, if suitable lands at lesser flood risk are already residentially zoned elsewhere in a quantum sufficient to meet housing targets. Indeed, that is the view the CE134 and the OPR took in this case.

• If zoning lands for the development type in question is necessary, zone for it elsewhere on lands at lesser flood risk if possible.

The Guidelines state: “[o]nly if there are no reasonable sites available in zones of low flood probability should consideration be given to development in higher flood probability zones.”135 This formulation of principle is striking: if suitable other lands are available, zoning is not even to be considered.

78. Second comes the “key principle” of Substitution: where lands in Flood Zone A or B must be developed, opt for less vulnerable rather than more vulnerable development. I confess that I am unclear of the meaning of the premise that, independently of the type of development envisaged, lands must, in the

abstract, be developed despite flood risk. Also, the word “substitute” may be a little unfortunate as, literally

interpreted, its premise is an initial choice for a highly vulnerable use. A word such as “prefer” might have been better. But in the particular circumstances of this case, in which the choice is between highly and less vulnerable development, I will simply assume in Voyage’s favour that the Subject Lands must be developed. In any event, guidelines are not to be parsed pedantically. The general thrust is perfectly clear. It is a key principle and entirely sensible – obvious - that on Flood Zones A and B and where a choice is available to develop either of a highly vulnerable use or a less vulnerable use, all things being equal, the latter should be chosen. Indeed, any other view would be astonishing.

79. So, as to a particular type of more flood-vulnerable development on particular lands, if it can be avoided or the lands can be developed for a less vulnerable use, justification of that particular more vulnerable type of development will simply not arise. That is so even though (as here in the case of Enterprise and Employment zoning) the substituted less vulnerable use may itself need justification.

80. So, applying these “key principles” of the Sequential Approach, development ordinarily inappropriate in a flood zone may be contemplated in such a zone only if first, it cannot be avoided, second,

134 The CE Draft Plan Report of 26 November 2021 explicitly records that the Draft Plan had zoned sufficient other residential lands to meet core

strategy requirements in areas not at risk of flooding and suitable for highly vulnerable uses in accordance with the Flood Risk Guidelines’ sequential

approach.

Flood Risk Guidelines, p68.

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a less vulnerable use cannot be developed on the site and third, it passes a “rigorous” Justification Test. 136 But you only get to Justification, and that exceptionally, if you have first addressed avoidance and substitution. As has been said, a DPJT must be passed where it is intended to zone for any vulnerable development land in Flood Zone A and for moderate development land in Flood Zone B.

81. Chapter 4 of the Flood Risk Guidelines addresses “Flooding and Spatial Planning”. It states:

• The importance of robust flood risk policies in the development plan cannot be overstated.137

• The Sequential Approach and, “in some exceptional cases, the Justification Test”138 should be used by planning authorities in incorporating flood risk into the decision-making process on development plans and enabling town centre and minor infill developments.139

• Development plans must include a statement of how the Guidelines have been implemented.140

• The steps in the development plan process and its SEA need to be supported by appropriate flood risk analysis by Strategic Flood Risk Assessment (SFRA).141

• The detail required will vary with and be appropriate to the circumstances – but may require detailed assessment even in the making of a development plan.142

• Flood risk may require that lands be dezoned.143

Sequential Approach - Step 3 - Justification

82. It will be seen that given, in the Sequential Approach, the prior application of the key principles of Avoidance and Substitution, even the application of a Justification Test arises only in “some exceptional cases”.144 This emphasises that, in applying the Sequential Approach, the Justification Test, comes last, not first, in the sequence and will be reached only exceptionally.145

83. Consistently with the key Avoidance principle described above, the Guidelines illuminate the issue of

exceptionality in describing the Justification Test as arising: “[w]here there are insufficient sites available to

136 Flood Risk Guidelines, §§3.6 & 3.8.

137 Flood Risk Guidelines, §4.11. Emphasis added.

138 Flood Risk Guidelines, §4.11. Emphasis added.

139 Flood Risk Guidelines, Ch.4, Key Messages p29.

140 Flood Risk Guidelines, p29.

141 Flood Risk Guidelines, §§4.13 & 4.14.

142 Flood Risk Guidelines, §2.21 and Appendix A describe a staged approach: Stage 1 Flood risk identification – to identify whether there may be any

flooding or surface water management issues that may warrant further investigation at the appropriate lower level plan or planning application levels;

Stage 2 Initial flood risk assessment; and Stage 3 Detailed flood risk assessment – to assess flood risk issues in sufficient detail and to provide a

quantitative appraisal of potential flood risk to a proposed or existing development or land to be zoned, of its potential impact on flood risk elsewhere

and of the effectiveness of any proposed mitigation measures.

143 Flood Risk Guidelines, §§4.26.

144 Flood Risk Guidelines, Ch.4 Key Messages, p29.

Discussed at Transcript Day 3 p40 et seq.

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locate development outside flood risk areas, it may be necessary, to meet the objectives of proper planning and sustainable development, for development to be sited within flood risk areas.”146

Development Plan Justification Test - Flood Risk Guidelines Box 4.1

84. In describing the DPJT, the Guidelines state that, having prepared an SFRA and mapped flood zones as part of its development plan review process and any more detailed flood risk assessments as necessary, situations can arise where a planning authority will need to consider the future development of areas at a high or moderate risk of flooding for uses or development vulnerable to flooding that would generally be inappropriate in such areas. In such cases, the planning authority must be satisfied that it can clearly demonstrate on a solid evidence base that the zoning will satisfy the Justification Test outlined in Box 4.1.147

85. “Box 4.1” of the Flood Risk Guidelines describes the DPJT as follows:

Box 4.1: Justification Test for Development Plans148 Where, as part of the preparation and adoption or variation and amendment of a development/local area plan, a planning authority is considering the future development of areas in an urban settlement that are at moderate or high risk of flooding, for uses or development vulnerable to flooding that would generally be inappropriate as set out in Table 3.2, all of the following criteria must be satisfied:

1. The urban settlement is targeted for growth under the National Spatial Strategy, [now the NPF]149 regional planning guidelines, statutory plans as defined above or under the Planning Guidelines or Planning Directives provisions of the Planning and Development Act, 2000, as amended.

2. The zoning or designation of the lands for the particular use or development type is required to achieve the proper planning and sustainable development of the urban settlement and, in particular:

(i) Is essential to facilitate regeneration and/or expansion of the centre of the urban settlement;

(ii) Comprises significant previously developed and/or under-utilised lands;

(iii) Is within or adjoining the core of an established or designated urban settlement;

(iv) Will be essential in achieving compact and sustainable urban growth; and

(v) There are no suitable alternative lands for the particular use or development type, in areas at lower risk of flooding within or adjoining the core of the urban settlement.

3. A flood risk assessment to an appropriate level of detail has been carried out as part of the Strategic Environmental Assessment as part of the development plan preparation process, which demonstrates that flood risk to the development can be adequately managed and the use or development of the lands will not cause unacceptable adverse impacts elsewhere.

Flood Risk Guidelines, p68.

147 Flood Risk Guidelines, §4.23.

148 Emphases added.

149 S.20A PDA 2000, inserted by the Planning and Development (Amendment) Act 2018, renamed the National Spatial Strategy as the National Planning

Framework.

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Box 4.1: Justification Test for Development Plans148 N.B. The acceptability or otherwise of levels of any residual risk should be made with consideration for the proposed development and the local context and should be described in the relevant flood risk assessment.

86. It seems to me that Criteria 1 and 2 of the DPJT relate to planning issues - with the possible, and even then partial, exception of Criterion 2(v). The expertise required to apply those criteria is essentially planning expertise. Even as to Criterion 2(v), seems to me that once the flood zoning of the lands has been determined, a planner will be able to apply Criterion 2(v) to the relevant facts.

87. It must be said that Criterion 2(v) of the DPJT – as to the absence of suitable alternative lands – is

logically difficult as duplicative of the “key” Avoidance principle, which will already have been satisfied if the

matter gets as far as a DPJT. Presumably, development for which suitable alternative lands are available can be avoided and, if so, the envisaged development will be no further pursued and no DPJT will be needed. However, Guidelines are not to be construed as statutes and are to be applied in a practical way in furtherance of their substantive intent. Even if Criterion 2(v) is considered a belt complementing the braces of the Avoidance principle, the thrust is clear. At least as to lands in Flood Zone A, that thrust can be thought of as reflecting the Guidelines’ explicit prescript that development be “only considered in exceptional circumstances”.

88. Further, it seems to me that if criterion §2(v) is failed – if there are “suitable alternative lands for the

particular use or development type, in areas at lower risk of flooding within or adjoining the core of the urban

settlement”, Criterion (iv) must be failed also. In such circumstances it is difficult to see that zoning the lands

in question for the particular use or development type “[w]ill be essential in achieving compact and sustainable urban growth”.

DMJT - Box 5.1

89. “Box 5.1” of the Flood Risk Guidelines describes the DMJT. The criteria include that the lands in Flood Zone A or B have been zoned for the type of development proposed. Of some importance, this implies that

• The lands must have already passed a DPJT for that type of development.

• A DMJT must be preceded by and is not a substitute for a DPJT.

DPJT APPLIED INDEPENDENTLY OF DEVELOPMENT TYPE ENVISAGED?

90. Voyage’s planning consultant, TPA150 asserted in the development plan process that the DPJT is applied independently of the type of development envisaged, with no distinction made between highly or

Tom Phillips & Associates Planning Consultants.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

less vulnerable development. On that view, if the DPJT is passed for Enterprise and Employment it must also be passed for Residential use. I am satisfied that these propositions are wrong.

• First, the Guidelines explicitly distinguish particular types of development as highly vulnerable and less vulnerable. That distinction is presumed to have a purpose. It also makes obvious good sense – which is never a disadvantage. TPA’s propositions would undermine that distinction or render it irrelevant.

• Second and as stated above,151 the Sequential Approach (of which JT is a part) starts with identification of a specific zoning proposal (in the case of DPJT) or a specific development proposal (in the case of a DMJT).

• Third, the Avoidance “key principle” of the Sequential Approach implies that lands in Flood Zones A and B should be developed for a particular use only where its development for that use is unavoidable. It is difficult to see that it would be unreasonable to conclude that residential development in a flood zone is unnecessary where sufficient lands are zoned elsewhere in the urban settlement to meet housing targets and that, accordingly, the need for a DPJT of residential use zoning of that flood zone does not arise.

• Fourth, and entirely unsurprisingly, the Guidelines are repeatedly clear that, where development of

lands in Flood Zones A and B is unavoidable, a further “key principle”, is to “substitute less vulnerable uses”.

That must imply comparison of and distinction between different use types.

• Fifth, it is clear that the DJPT arises only as to “uses or development vulnerable to flooding that would generally be inappropriate” in a Flood Zone and it is an express criterion of the DPJT that the zoning of the lands “for the particular use or development type is required”.

• Sixth, it is an express criterion of the DPJT there be no suitable alternative lands for the particular use or development type in areas at lower risk of flooding within or adjoining the urban settlement core. This criterion usefully illustrates the point. It is entirely possible that in a given urban settlement, suitable alternative lands at lower risk of flooding would be available for one particular use (e.g. Residential) but not for another particular use (e.g. retail or industrial) – in which case the DPJT might be passed for the latter use but not the former.

• Seventh, Voyage itself made a contradictory submission to LCCC on 30 June 2022. Its letter enclosed the seven reasons it had supplied for the motion passed on 8 June 2022.152 They included an assertion that LCCC’s Executive did not properly execute the Members’ instruction, as contained in MA 147, as it did not fully apply the Justification Test “in terms of New Residential use” but rather reapplied the test justifying Enterprise & Employment zoning. I have some sympathy with that assertion in point of fact but its present significance is in its clear premise that a JT is to relate to a particular type of development. And in its Amended Grounds, Voyage explicitly pleads that:

o In applying the Sequential Approach “the initial question … is what is the zoning proposal, e.g. New Residential or Enterprise and Employment?”153

151 It is made clear in the Flood Risk Guidelines Flow Chart, Fig. 3.2: Sequential approach mechanism in the planning process.

152 See chronology below.

Amended Grounds §63.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

o It is clear that DPJT is specific to the zoning of the lands for the particular use or development type under consideration.154 Voyage also asserts error in that, it says, no DPJT for specifically residential development was done.

91. It follows that, as to a particular site, a DPJT:

• Must be done with a particular development type in view. In fairness I should say that in contradiction to TPA’s recorded position, counsel for Voyage pleaded155 and ran the case before me on this basis – agreeing that while some criteria were not sensitive to the type of development proposed, ultimately a Justification Test is meaningless unless you have a specific development type/particular use in mind.156

• Can fail as to one development type but pass as to another.

• Might even, in principle and all other things being equal, pass a highly vulnerable use in the absence of suitable alternative lands but fail a less vulnerable use for which suitable alternative lands are available. It is in principle possible that the Subject Lands could pass a DPJT for Enterprise and Employment use, but fail it for Residential use – or vice versa.

92. This position is entirely consonant with the Substitution principle – that, all things being equal as to a particular site in Flood Zones A & B, it should be zoned for less vulnerable uses in preference to highly vulnerable uses.

SUFFICIENT LANDS ZONED RESIDENTIAL ELSEWHERE - ABANDONMENT OF GROUND 13

93. Counsel for LCCC observed157 that shortly prior to trial Voyage abandoned Ground 13. Core Ground

13 had alleged, inter alia, that that the 2022 Development Plan had “failed to zone sufficient land to address their identified housing target over the lifetime of the 2022 Development Plan” such that the Plan’s core strategy “is not consistent with the RSES and the NPF insofar as the Council has failed to make proper provision of zoned land to achieve its identified housing targets.” The ensuing particulars set out an analysis of the relevant quantifications and conclude158 that the lands zoned residentially in the Plan provide a maximum delivery capacity of 10,925 housing units as against a Plan target of 11,442. One may also note in this regard the abandonment of Ground 12. These grounds were abandoned by highly expert counsel for, I have no doubt, good and proper reason. It is tempting to speculate why these grounds were abandoned: whether due to a flaw in the quantitative analysis or a want of evidential basis or otherwise. But it is unnecessary. The point is that, absent these grounds, I must regard the lands zoned residentially in the Plan (whether including or excluding the Subject Lands – the plea was unclear) as quantitatively sufficient to meet the Plan’s housing targets. It follows from the abandonment of that plea that I must regard residential

Amended Grounds §64 - citing the Guidelines Box 4.1 §2.

155 Amended Grounds §63.

156 Transcript, Day 1 pp80 & 116. See also p139 & 140. Transcript Day 2 p92

157 Transcript Day 3 pp149 & 150.

Amended Statement of Grounds §46.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

zoning of the Subject Lands as unnecessary to meet those targets. It will be appreciated that this conclusion has profound consequences for the application to the Subject Lands of the first key principle - Avoidance - of the Sequential Approach required by the Flood Risk Guidelines to zoning lands in Flood Zones A and B.

RPS WORK FOR VOYAGE

94. RPS are the flood-risk experts retained by Voyage since 2019 to advise as to their Greenpark Lands. It is of some importance to discern of exactly what that work consisted. It is described in the RPS report prepared for and exhibited in these proceedings.159 Supplementing that information by reference to the other exhibited RPS documents and as far as I can see on the evidence, RPS’s work consisted only of the following:

• Site-Specific Flood Risk Assessment (SSFRA) of December 2020 of Voyage’s Masterplan for the Greenpark Lands – including the Subject Lands. Done in accordance with the Flood Risk Guidelines, it records a DMJT and explicitly not a DPJT.160

• SSFRA of September 2021 of Voyage’s SHD Proposal for the SHD Site. Again, and as would be expected of a report in support of a planning application, it records a DMJT161 - not a DPJT.

• SSFRA for an application for permission for a nursing home in the south-eastern corner of the Greenpark Lands. It is irrelevant to these proceedings.

• A review of the JBA SFRA of June 2021, including its DPJT of Enterprise and Employment zoning of the Subject Lands. That review is found in the RPS report of December 2022 prepared for these proceedings.

95. The RPS affidavit for Voyage somewhat elliptically records that: “RPS was retained to advise on elements of the Development Plan Justification Test ("DPJT") carried out on the lands owned by Voyage Property at Greenpark; and to review the flood risk reports prepared for Limerick City and County Council”.162 The following paragraph,163 however, in referring to the RPS report of December 2022, leads me to infer that the advice and review in question are recorded in that report and were first tendered in or about December 2022. That report in turn leads me to infer that the advice and review in question related to the JBA SSFRA of June 2021 in support of the Draft Development Plan, which included a DPJT of Enterprise and Employment zoning of the Subject Lands. Notable also is that, whereas JBA performed the entirety of the DPJTs it records,164 Mr Jackson of RPS, no doubt properly, confines himself to comment on that JBA DPJT as to its

application of §3 of the DPJT criteria “as the other parts of the of the DPJT are not relevant to my expertise.”

As will be seen, he is critical of JBA’s application of DPJT Criterion §3. He was not contradicted on affidavit or

cross-examined on that issue.

159 Dated 20 December 2022. See §1.2.

p31 et seq.

161 p36 et seq.

162 Affidavit of Andrew Jackson, sworn 25 January 2021, §5.

163 Affidavit of Andrew Jackson, sworn 25 January 2021, §5.

No-one has suggested they were not entitled to do so.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

96. Notably, none of these RPS documents purports to have done a DPJT or contributed to a DPJT in the process leading to the making of the Development Plan – much less a DPJT of residential zoning encompassing the MA 147 Lands and/or the Subject Lands.

CHRONOLOGY

97. As prefigured above it is necessary to set out the lengthy and complex sequence of events relevant to this case. Where convenient, I have added the notes by way of comment or elaboration.

Date Event 2009 The Flood Risk Guidelines issued. Inter alia, and as has been seen, they provided, as described above, for the:

• Identification of Flood Zones A, B and C as respectively denoting high, moderate and low probability of flooding.165

• Categorisation of types of development as highly or less flood-vulnerable or as watercompatible.

• Sequential Approach, by reference to flood risk, to both the land use zoning of, and the permission of development on, lands in a flood zone.

• Justification Tests as the third element in the Sequential Approach. 2010 Limerick City Development Plan 2010 – 2016 (“2010 Development Plan”).

• It considered the Greenpark Lands capable of delivering 1,188 residential units166 and zoned 47 hectares of those lands as follows:

Figure 3 – Greenpark Land Use Zoning, 2010 Development Plan167

• 19.6 ha – 2A Residential168 pale pink

Flood Risk Guidelines, Chapter 3.

166 See TPA Submission 3 September 2021 on Draft Plan, §1.2.

167 Extract from TPA Report 3/9/21 Figure 1.1: Extract of Land Use Zoning Map, with indicative site boundary in yellow, Limerick City Council

Development Plan 2010-2016 (cropped and annotated by Tom Phillips & Associates, 2021).

Associated land use objective 'to provide for residential development and associated uses'.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• 10.6 ha - 5A Mixed Use169 dark pink

• 2.3 ha – 5C Neighbourhood Centre170 blue

• Remainder - Public Open Space green

• Voyage Site Boundary yellow line

It will be seen that the entire of what became the MA 147 Lands and the Subject Lands were zoned residential.

Map 2 “Flood Risk Areas” identified the High Probability (Zone A) and Moderate Probability (Zone B) Flood Zones.

• The Greenpark Lands are very largely in Flood Zone A. Very minor elements are in Flood Zone B. Part, in the south-east, is in Flood Zone C.

Figure 4 – Greenpark Flood Zoning171

• Voyage’s Masterplan Lands are outlined in red.

• The dark blue areas are in Flood Zone A. The light blue areas are in Flood Zone B. The white areas are in Flood Zone C.

• The white salient in the south-east of the Masterplan Lands is the heart of the SHD Site.

It does extend north into the Blue/Flood Zone A area.

• The Subject Lands lie in the Blue/Flood Zone A area north of the SHD Site.

Notes

• Broadly and as matters, the flood zones identified in Map 2 have been a constant and have not been in dispute.

• Voyage asserts that LCCC admitted in December 2021 that in preparing the 2010 Development Plan and contrary to the Flood Risk Guidelines, no DPJT was done as to the Greenpark Lands in Flood Zones A and B.172 This undermined a premise of the RPS Masterplan SSFRA which had resulted in their doing a DMJT, not a DPJT. 2013 Limerick 2030 Plan by KPMG for Limerick City Council

169 Associated land use objective 'to promote the development of mixed uses that serves an area greater than its immediate catchment and to ensure

the creation of a vibrant and sustainable urban area.

170 Associated land use objective 'to protect, provide for and/or improve the retail function of neighbourhood centres and provide a focus for local

services'.

171 Appendix 1 to the 2010 Development Plan. This figure is an extract from “Figure 3.5 Flood Zone identification” in the RPS Masterplan Flood Risk

Assessment dated December 2020. I am satisfied that its depiction of the Flood Zoned coincides as matters with those depicted in Appendix 1 to the

2010 Development Plan.

Affidavit of John Gannon of TPA, sworn 21 December 2022.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• This was an economic and spatial framework for the redevelopment and growth of Limerick City Centre.173 It has since been updated from time to time. Feb. 2018 Shannon Foynes Port Company - Limerick Docklands Framework Strategy (“LDFS”)

• It identifies the Port Estate of 45.5 hectares as lying north of the Dock Road - of which

14.7 hectares174 is used as the Ted Russell Docks and 30.8 hectares is “non-core assets” - surplus to port operations and for commercial development.175

• It does not mention the Greenpark Lands - they are not in its study area. July 2019 Voyage bought 47 hectares at the former Greenpark Racecourse.

Note – 10 eastern hectares only are the subject of these proceedings – “the Subject Lands”. February Southern Region RSES176 & LSMASP 2020 • The RSES includes the LSMASP177 of which the summary178 identifies the Dock Road as a key Employment and Enterprise location. The LSMASP identifies Dock Road as a “Strategic Employment Location” (DRSEL) providing “significant potential”, identified in the LDFS,179 on the

23 ha Ted Russell Docks and a “further 49 acre site” in a total of 113.2 hectares180 Note

• An issue arises whether the LSMASP identified the Greenpark Lands as within the DRSEL.

15 Aug. LCCC, Limerick Development Plan 2022-2028 Issues Paper 2020 • Published to initiate the development plan review, it does not mention the Subject Lands.

12 Oct. The OPR submission on the Issues Paper does not mention the Subject Lands. 2020 Nov. 2020 Voyage met LCCC in a non-statutory meeting to discuss a proposed “Greenpark Masterplan”.

LCCC raised the need for a justification test.181

18 Dec. Voyage (RPS) Greenpark Masterplan FRA – 18 December 2020 2020 It stated that

• Voyage commissioned RPS to do the FRA in support of its Masterplan182 for the entire of the old Greenpark Racecourse - for a mix of offices (to the north-west/Dock Road end), residential units (to the south and south-east) and a small neighbourhood centre.183

• RPS’s overt and repeated “purpose” was “to define the flood risk to proposed development lands and demonstrate that with appropriate mitigation they can be developed in accordance with the Flood Risk Guidelines.”184

173 So described in the Interim Review and Update of the Limerick 2030 Plan Prepared for Limerick City and County Council, 26 June 2021.

174 Not to be confused with Voyages’ 14.7 hectares.

175 p4 & Figure 1: Port Estate, Figure 4: Operational Port.

176 Regional Spatial & Economic Strategy.

177 Limerick-Shannon Metropolitan Area Strategic Plan – RSES p270 et seq.

178 RSES p42.

179 2018 – see above.

Table 3 | Strategic Employment Locations and p294.

181 Affidavit of John Gannon of TPA, sworn 21 December 2022.

182 Figure 4.1 Overall Masterplan.

183 p1.

pp1 & 12.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• CFRAM mapping and the levels derived by RPS provide the best available information to assess the relevant flood risk. They indicate that a 0.5% AEP185 flood does not reach the site because of the existing flood defences. However as the Flood Risk Guidelines require that defences be ignored in flood zoning, the vast majority of the Masterplan area is in Flood Zone A, very small sections are in Flood Zone B and some lands in the south-east are in Flood Zone C.186

• A DPJT was unnecessary as the 2010 Development Plan had already taken account of the Flood Risk Guidelines (and so, did a DPJT) in zoning the lands mixed use and residential. So only a DMJT, applying the Sequential Approach, was required for the types of development proposed in Flood Zones A and B.187

• Proposed mitigation (essentially elevation of levels, including floor levels) provides “a very high standard of protection”.188

• On applying the DMJT, the residual risk to the proposed development is low.189

• “Based on the proposed mitigation measures, consideration of the designated zoning and the proposed urban design,” each of the DMJT criteria “was shown to be satisfied.” So the proposed development complies with the DMJT the Flood Risk Guidelines. 190 Note

• Though I would not wish to be too unworldly about it, it is at least mildly disconcerting that RPS’s overtly stated “purpose” was to “demonstrate that … they can be developed in accordance with the Flood Risk Guidelines.” As was said at trial, RPS were off to the wrong start.191 Their proper, neutral, purpose as a professional expert would have been to apply the Sequential Approach in all its aspects, including the Justification Test, in order to ascertain whether the lands could be developed in accordance with the Flood Risk Guidelines. Otherwise, the invocation of its expertise, as to be relied upon in the process by the decision-maker, is somewhat diminished.

12 & 29 Voyage met LCCC in a non-statutory meeting to discuss a proposed “Greenpark Masterplan”.192 Jan. 2021 • Voyage presented the RPS FRA of December 2020.

Voyage met LCCC to discuss a proposed SHD193 application for the SHD Site.194

14 May & Voyage submitted an SHD pre-planning application to An Bord Pleanála for 287 residential

24 June units,195 a crèche and associated site works. 2021 Voyage, the Board and LCCC met in SHD pre-planning consultation.

26 June LCCC (JBA196) Draft Plan SFRA197 – 26 June 2021 2021

185 Annual Exceedance Probability.

186 Figure 3.5, Flood Zone identification & §7.

187 §6.2.

188 §7.

189 Table 6.1. p33.

190 §7.

191 Transcript Day 1 p107 et seq & p120.

192 Affidavit of John Gannon of TPA, sworn 21 December 2022.

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

Act”).

194 The content of such meetings cannot be invoked in legal proceedings.

195 139 houses and 148 apartments.

196 Consulting Engineers.

Strategic Flood Risk Assessment.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• The Greenpark Lands are shown predominantly in Flood Zone A.198

• A DPJT for “Enterprise and Employment lands at Greenpark”199 states that:

o The Limerick Shannon Metropolitan Area is targeted for growth.

o The Greenpark Lands are at an edge of centre location and are essential to facilitate expansion and compact growth of the city.

o They are off Dock Road, a LSMASP-designated key employment location adjoining the core Limerick Shannon Metropolitan Area and they are essential:

▪ to consolidation of the existing built-up employment area; and ▪ for employment uses which can’t be accommodated in the city centre.

o Suitable alternative lands are not available.

• In particular the DPJT contains the following:

DPJT Criterion200 §2 JBA Analysis201 The zoning or designation of the lands for the Limerick’s Dock Road has been identified as a particular use or development type is required key employment and enterprise location under to achieve the proper planning and the MASP, which acknowledges the significant sustainable development of the town and in potential of this area of the City for economic particular: development.

(i) Is essential to facilitate regeneration and/or The lands at Greenpark off the Dock Road expansion of the centre of the urban subject of Flood Zone A & B are essential for settlement the provision of lands for employment uses which cannot be accommodated in the City

(ii) Comprises significant previously developed Centre.

and/or under-utilised lands.

The undeveloped area at Greenpark

(iv) Will be essential in achieving compact or consolidates the existing built up area between sustainable urban growth the City Centre and the natural boundary presented by the Ballinacurra Creek and N18.

These greenfield and brownfield lands are therefore essential to facilitate expansion and compact growth of Limerick City in accordance with national and regional planning policy.

The delivery of development on these lands is essential to allow consolidation of the existing built-up area of this employment area, achieve compact growth and enable Limerick to fulfil its economic development role.

DPJT Criterion202 §3 JBA Analysis203

198 Figure 7-1 Limerick City - Dock Road.

Appendix A.1.2.

200 Heading added. Reference is to Flood Risk Guidance DPJT Criteria, Box 4.1 §3.

201 Heading added.

202 Heading added. Reference is to Flood Risk Guidance DPJT Criteria, Box 4.1 §3.

Heading added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event A flood risk assessment to an appropriate level The site (and proposed development area) is of detail has been carried out as part of the not within the existing area of risk204 (although Strategic Environmental Assessment as part of is largely within Flood Zone A) so risk is from the Development Plan preparation process, residual risk of breach rather than direct which demonstrates that flood risk to the inundation.

development can be adequately managed and The defences are part of the OPW arterial the use or development of the lands will not drainage scheme and are of unknown cause unacceptable adverse impacts condition and standard of protection, although elsewhere. the defence height … provides protection to the site in the 0.5% and 0.1% tidal events.

Any development proposals will have to address and manage flood risk with the site plans, typically through appropriate setting of finished floor levels, ground raising and use of the sequential approach within the development to ensure more vulnerable elements of the design are at a higher level. As breach is likely to happen rapidly, with little … warning, consideration should be given to emergency access during a breach event and the means of ensuring the safety of all site users.

Where it is not possible to manage risks within the development, or such proposals cause an increase in flood risks to third party lands, the development will be deemed premature until the flood relief scheme has been completed.

Notes

• Voyage says this DPJT incorrectly identifies the Greenpark Lands as in the DRSEL in order to pass the DPJT for Enterprise and Employment zoning.

• Voyage and its RPS205 deponent are especially critical of the JBA response to DPJT Criterion §3 as to Enterprise and Employment zoning. They say that it fails to meaningfully address the requirement that the DPJT “demonstrate that flood risk to the development can be adequately managed and the use or development of the lands will not cause unacceptable adverse impacts elsewhere.”206 Instead, it merely defers that analysis to the DMJT stage. I confess to considerable sympathy with this criticism but it does not go to the core of the case as identified above.

Limerick 2030 Interim Update (KPMG)

204 All were unclear at trial precisely what the phrase “existing area of risk” means. On reflection, in context and on balance I think the intention was to

indicate that the Greenpark Lands are protected to the extent of the protection provided by the existing OPW flood defences.

205 Affidavit of Andrew Jackson, sworn 12 March 2022 and exhibited RPS report of 20 December 2022.

Emphases added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• It is unclear on its face but this seems to have been a draft. It was included in the Draft Plan.

• The ‘Old Greenpark Racecourse’ is identified as:

o A development opportunity as “Enterprise & Employment Lands”208 and as “Employment Lands” in the Docklands area.209 (The relevant content identifies other lands as “Housing”

and “Mixed-Use” opportunities.)

o A “City Gateway” within the “City + Suburb Extents”.210 o Within 2.5km of the city centre.211

• As to ‘Limerick Docklands’, it states that the: “Greenpark Racecourse site should be progressed as a major residential opportunity site along its northern extents and the opportunity explored for the feasibility of the provision of a c.12Ha enterprise and employment opportunity site accessed from Dock Road to supplement the IDA lands at capacity in the Castletroy/ UL neighbourhood.”212 Note: Limerick 2030 Interim Updates and similar KPMG reports occur repeatedly. June 2021 Draft 2022 Development Plan adopted & published for Public Consultation – June 2021 (“the Draft Plan”)

The CE submitted a Draft 2022 Development Plan to LCCC’s Members.

• I am unclear precisely how the Members dealt with it213 but the net result was LCCC’s adoption of the Draft Plan as the basis for the making of the 2022 Development Plan.

Notably, the Draft Plan:

• Proposed re-zoning most of the Greenpark Lands in Flood Zones A and B,214 including the Subject Lands, for Enterprise & Employment (≈ 24.7 ha) - with an area (≈ 4.4 ha) in the southeast (essentially what became the SHD Site) to be zoned Residential and additional land zoned (≈1.8 ha) to be zoned for Public Open Space.215

207 Draft Plan Vol 6.

208 pp85 & 126.

209 p120.

210 p7.

211 p85.

p120.

213 s.11 (5)(c) “Where the draft development plan has been considered … it shall be deemed to be the draft development plan, unless … the planning

authority, by resolution, amends that draft development plan.”

214 See Figure 3.11: ‘Limerick City and Environs Flood Map.

Quantification in TPA Report 3/9/21 §1.1. Voyage has since got SHD permission for all of this area but the north-eastern spur which it does not own.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Included the JBA Draft Plan SFRA217 and the Limerick 2030 Interim Update of 26 June 2021.218

• Included a draft core strategy which:

o Identified its central focus as ensuring an acceptable equilibrium in the supply of zoned and serviced land for projected demand for new housing, jobs and social and economic infrastructure.

o Identified the need to “[i]dentify quantum of zoned land required to accommodate proposed growth.”

o Quantified the population, household and residentially zoned land requirements, for the duration of the 2022 Plan, of the Limerick Metropolitan City and Environs219 at 11,274 units and a zoning provision in the Draft Plan with a capacity of 12,322 units.220 LCCC published the Draft Plan and Strategic Environmental Assessment (“Draft Plan SEA”)

Notes

• Though adopted by the Members only as a Draft Plan, nonetheless, it records a quantified view of the LCCC Executive and the provisional view of the Members that that, assuming Enterprise and Employment zoning of the Subject Lands, the envisaged Residential zoning provision met the quantified core strategy requirement to ensure an acceptable equilibrium between the supply of zoned and serviced land and the projected demand for new housing.

• Voyage says:221 o The Draft Plan SEA did not mention the Greenpark Lands.

o The Draft Plan SFRA included a DPJT for, inter alia, the Greenpark Lands for enterprise and employment use222 but not for residential use.

o The DPJT did not comply with the Flood Risk Guidelines DPJT – Box 4.1 §§2 and 3.

216 Extract from TPA Report 3/9/21 Fig. 1.2. Extract of Land Use Zoning Map, Draft Limerick Development Plan 2022-2028.

217 26 June 2021.

26 June 2021. See Vol 1, Introduction. §1.4 Plan Overview describes the Draft Plan as including the Limerick 2030 Interim Update in Volume 6.

219 Including Mungret and Annacotty.

220 Table 2.7 Settlement hierarchy population and household growth up to end of Draft Plan period Q2 2028 plus zoned land provision

221 Affidavit of John Gannon of TPA, sworn 21 December 2022.

See JBA SFRA above.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

9 July 2021 In the SHD pre-application consultation process, the Board’s Inspector issued a report and recommended opinion.

• Notably, it proceeded on the basis as to the SHD Site that “[m]ost of the site is located within Flood Zone C, with areas of the site in Flood Zones A and B.”223 In the SHD pre-application consultation process, the Board issued an Opinion identifying issues to be addressed if Voyage’s proposal were to constitute a reasonable basis for an SHD application.

• Inter alia, a SSFRA was required as to the SHD Site areas in Flood Zone A – though not Flood Zone B.224

30 Aug. Lisney report225 for Voyage on the Draft Plan. It concluded that: 2021 • The quantum of Greenpark Lands to be rezoned for Enterprise and Employment uses in the Draft Plan is grossly excessive, at from 20 to 35 years’ market supply.

• In a serious housing crisis, it would be more appropriate to retain the existing residential and mixed-use land use zonings, where the lands could significantly contribute.

OPW Submission on Draft Plan

• The OPW “as lead agency for flood risk management in Ireland” comments on quite a number of specific areas in which it has flood risk concerns as to land-use zonings. The draft Enterprise and Employment zoning of the Greenpark Lands is not amongst them. The OPW does not criticise that zoning.

VOYAGE (TPA) SUBMISSION ON DRAFT PLAN (INCLUDING PURPORTED DPJT) - SEPT. 2021 & COMMENT THEREON

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 This very lengthy submission as to the Draft Plan was by Voyage’s planning consultant, TPA. Inter alia, as to the Greenpark Lands it:

• Opposed the proposed Enterprise and Employment zoning of the lands which had been zoned Residential in the 2010 Development Plan as, in effect, an increase in the former mixed-use zone from ≈10.6 ha to ≈24.7 ha and the loss of ≈15 ha of Residential zoning.

• Was “amenable” to the proposed re-zoning to Enterprise and Employment of the north-west of the Greenpark Lands which had been zoned in the 2010 Plan for mixed use and a neighbourhood centre.226

• Noted housing shortages in Limerick.

• Sought as “crucial” the maintenance of the “current extent and location of Residential zoned land”

i.e. ≈19.3 ha of Residential zoning “in line with” the 2010 Plan zonings.227

• Analysed the greater Greenpark Lands as suited to “mixed use” development. Though it is not entirely consistent, it is broadly clear that Voyage advocates not for an overall mixed-use zoning but for

§2.3.

224 Affidavit of John Gannon of TPA, sworn 21 December 2022.

225 Lisney Property Consultants.

226 TPA Report 3/9/21 pp4, 8 & 33.

pp4, 15 & 30.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 discrete Enterprise and Employment zoning to the north-west and Residential zoning to the south-east in accordance with its 2020 Masterplan.228

• Invoked various national,229 regional230 and local231 planning policies and the Board’s recent preapplication opinion favouring Voyage’s SHD Proposal as identifying the Greenpark Lands as a large and significant residential development site.

• Invoked various NPOs of the NPF (including those seeking compact urban growth) – but did not mention NPO 57 as to flood risk.232

• Asserted that a DPJT does not distinguish between land use types (residential, commercial) or whether the uses are highly or less vulnerable. It “draws no distinction between land uses or vulnerability to flooding.” It applies “to ‘uses or development vulnerable to flooding’ with no distinction drawn between

‘highly’ or ‘less vulnerable development’ or particular land uses.” 233 (I have rejected these propositions

above.)

• Nonetheless asserted that “as demonstrated in this submission” the Greenpark Lands satisfy DPJT criteria “for Residential use” and are suitable for significant residential use as crucial to the balanced ‘compact growth’ and the population increase envisaged for Limerick City.

• Repeatedly invoked an RPS SFRA appended as Appendix A. It states that the: “Masterplan sets out a detailed vision for the future development of the lands and includes a detailed … SSFRA … by RPS …”.234

• Appended:

o What the Appendix heading describes as a “Site Specific Flood Risk Assessment for Greenpark as prepared by RPS, Consulting Engineers”. The date is not specified.

o The Lisney report of August 2021.235 As has been seen, it asserts housing shortages in Limerick and that the lands to be zoned in the Draft Plan for Enterprise and Employment equate to well over 20 years’ requirements for Limerick.236 Note

• The exhibited TPA Submission237 does not include the appendices in a single document. But I am satisfied that what is exhibited as Appendix A238 is in fact the RPS Masterplan FRA of December 2020 – which included a DMJT, not a DPJT. Returning to the TPA Submission, it, inter alia,239 purported to set out a DPJT by reference to the criteria stated in Box 4.1 of the Flood Risk Guidelines and asserted that the Subject Lands satisfied all those DPJT criteria as follows:240

228 TPA Submission 3 September 2001, Figure 1.4: Greenpark Masterplan 2020 (annotated by Tom Phillips + Associates, 2021).

229 Including Rebuilding Ireland, Project Descriptions Local Infrastructure Housing Activation Fund (LIHAF)’ March 2017 by the Department of Housing.

230 The Southern Region RSES 2020.

231 Including the Limerick 2030 Interim Update.

232 p17 et seq. TPA cites NPOs 2a, 3b, 5, 7, 8 and 35.

233 pp7, 16 & 42.

234 Including pp16 & 41 et seq.

235 Filename in Index to Exhibits – “221221 Exhibit JG Aff-TAB 8.3 Appendix B - Lisney Report”.

TPA Report 3/9/21 p33.

237 Filename in Index to Exhibits – “221221 Exhibit JG Aff-TAB 8.2 Rezoning Submission September 2021”.

238 Filename in Index to Exhibits – 221221 Exhibit JG Aff-TAB 8.1 Appendix A - RPS Site Specific FRA.

239 §3.8 Flood Risk Considerations p40 et seq.

TPA Submission 3 September 2001 – §3.8.1 Development Plan Justification Test, p43 et seq.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 Box 4.1 Criterion Criterion “The urban settlement is targeted for growth under the NPF and RSES,242 statutory plans … §1241 or under the Planning Guidelines or Planning Directives provisions of the PDA 2000.”243 TPA This criterion is met. Limerick City and suburbs is targeted for ambitious population growth Response of 50-60% to 2040 with 50% of this growth to occur within the existing built-up area, which includes the subject lands, given their inner suburban location.

Criterion §2 The zoning … of the lands for the particular use or development type245 is required to achieve the proper planning and sustainable development of the urban settlement and, in particular:

Criterion Is essential to facilitate regeneration and/or expansion of the centre of the urban settlement;

§2(i)

TPA This criterion is met. Greenpark is a strategically important zoned and serviced landholding Response of notable scale (47 ha) in the inner suburbs within 2km of Limerick city centre.

It is identified in the Limerick 2030 Interim Update June 2021 as a “City Gateway” and as part of the “expanded plan” area to consolidate the city, avoid sprawl in its growth and reinforce urban coherence. It should be “progressed as a major residential opportunity site along its northern extents” and the feasibility of a circa 12 hectare enterprise and employment opportunity site accessed from Dock Road should be explored.

So, it is clearly “essential to facilitate regeneration and/or expansion of the centre of the urban settlement”.

Criterion Comprises significant previously developed and/or under-utilised lands;

§2(ii)

TPA This criterion is met. Previously Limerick racecourse, the lands are now undeveloped and Response under-utilised, having regard to their strategic inner suburban location on the edge of the city core near several employment areas and public transport corridors.

Criterion Is within or adjoining the core of an established or designated urban settlement;

§2(iii)

TPA This criterion is met. Limerick is a designated by the NPF and RSES as an urban population Response growth area. The Greenpark Lands are centrally located in the inner suburbs within 2 km of the city core and adjoining the existing built-up city centre.

§2(iv) Will be essential in achieving compact and sustainable urban growth;

TPA This criterion is met. Limerick is designated by the NPF and RSES, the Draft Development Response Plan and the Limerick 2030 Plan Interim Update as an urban population and economic growth area. This growth is to be delivered on the compact city model – where possible on under-utilised, brownfield and centrally located lands in the city centre and inner suburbs.

The Greenpark lands are of scale (47 ha), so can significantly contribute to economic and residential growth targets in a sustainable location near the city centre, employment

241 Of the Flood Risk Guidelines.

The NPF and RSES replace the National Spatial Strategy and regional planning guidelines.

243 I have edited this criterion without changing meaning.

244 I have edited these responses for brevity. I have also excised some repetition – though such repetition was a reasonable response to overlapping

criteria.

Emphasis added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 centres, established social infrastructure and existing and emerging public transport corridors. The lands will, therefore, be essential in achieving the compact city model of sustainable urban growth.

Not so developing them will promote unsustainable zoning and development of lands, particularly residential development, on greenfield remote sites, often requiring costly new infrastructure and car-dependent - the antithesis of compact growth.

Criterion There are no suitable alternative lands for the particular use or development type, in areas §2(v) at lower risk of flooding within or adjoining the core of the urban settlement TPA This criterion is met:

Response • There are no suitable alternative lands to accommodate the appropriate combination of commercial and residential use within, or adjoining the city’s core area that are at a lower risk of flooding.246

• There are limited available development lands adjoining the subject site that are located closer to the city centre and any such sites are also at risk of flooding or otherwise committed for development/already developed.247 Criterion §3 A flood risk assessment to an appropriate level of detail has been carried out as part of the Strategic Environmental Assessment as part of the development plan preparation process, which demonstrates that flood risk to the development can be adequately managed and the use or development of the lands will not cause unacceptable adverse impacts elsewhere.

N.B. The acceptability or otherwise of levels of any residual risk should be made with consideration for the proposed development and the local context and should be described in the relevant flood risk assessment.

TPA • A detailed SSFRA for the Greenpark Lands “was completed by RPS” in accordance Response with the Flood Risk Guidelines Sequential Approach. It “is appended to this submission as Appendix A.”

• The focus of the RPS SSFRA was to demonstrate that, in a sudden flood, risk to property and life could be safely managed while ensuring no unacceptable adverse impacts to neighbouring lands or property. This was achieved. The general approach was to raise the lands above the predicted flood level.

• The RPS SSFRA, analysis and report satisfy DPJT criterion §3.

• The application of the Flood Risk Guidelines demonstrates that the Greenpark Lands satisfy the DPJT.

• In summary, the Greenpark Lands satisfy the DPJT criteria and are, therefore, appropriate to be zoned for commercial and residential development. Note #1

• As stated earlier, TPA’s insistence that a DPJT is neutral as to development type is untenable. A DPJT can be done only with a specific development type in mind. Yet TPA also asserts that its submission demonstrates that the Greenpark Lands satisfy DPJT criteria “for Residential use”. Also, the appended

246 Emphasis added. Restrictive of the scope of comparison.

Emphases added. Restrictive of the scope of comparison.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 RPS SSFRA clearly envisages residential development of the Subject Lands. In my view, the only sensible interpretation of the TPA Submission and its response to the DPJT criteria is as an assertion that specifically residential development of the Subject Lands passes the DPJT.

• The TPA Submission does not specifically identify the author of the DPJT. It is clear that RPS did not perform this DPJT as a whole. RPS did a DMJT of the Masterplan, not a DPJT. I infer that TPA, as planners, addressed all DPJT criteria but Criterion 3.

• That RPS did a DMJT of the Masterplan, not a DPJT raises the question whether TPA’s invocation of the RPS DMJT as showing satisfaction of Criterion 3 of the DPJT is tenable. Here it assists to compare the relevant DPJT and DMJT criteria, remembering that the latter both assumes a prior DPJT and is performed to a higher specificity as it relates to a more specific development proposal. The relevant criteria are as follows:

Flood Risk Guidelines DPJT - Box 4.1 DMJT - Box 5.1 §1 The lands have been zoned … for the particular form of development in a development plan which takes account of these Guidelines.

§2 The proposal has been subject to an appropriate flood risk assessment that demonstrates: §3 A flood risk assessment to an appropriate level (i) The development proposed will not increase flood of detail has been carried out as part of the risk elsewhere and, if practicable, will reduce overall Strategic Environmental Assessment as part of the flood risk; development plan preparation process, which (ii) The development proposal includes measures to demonstrates that minimise flood risk to people, property, the economy

• flood risk to the development can be and the environment as far as reasonably possible;

adequately managed and

(iii) The development proposed includes measures to

• the use or development of the lands will not ensure that residual risks to the area and/or cause unacceptable adverse impacts development can be managed to an acceptable level.

elsewhere.

(iv) The development proposed addresses the above in a manner that is also compatible with the achievement of wider planning objectives in relation to development of good urban design and vibrant and active streetscapes. N.B. The acceptability or otherwise of levels of any The acceptability or otherwise of levels of residual risk residual risk should be made with consideration for should be made with consideration of the type and the proposed development and the local context foreseen use of the development and the local and should be described in the relevant flood risk development context. assessment’.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 Note: See section 5.27 as to major development on zoned lands where sequential approach has not been applied in the operative development plan.

§5.27 provides:248

• Such proposals should be considered as though the land was not zoned for development.

• The applicant should be required, in consultation with the planning authority, to prepare an appropriate SFRA and to meet the DPJT criteria.

• The planning authority must then assess the proposal against the DPJT criteria.

• Given what appears to me to be the considerable similarity between the criteria set out just above and the fact that a DMJT is done to as to a higher level of specificity of development than a DPJT, I confess that I would have been disposed to consider it tenable for TPA to assert, as it does, that the Masterplan DMJT by RPS, which envisaged residential development of the Subject Lands, sufficed to allow TPA to assert, as it does, that Criterion (V) of the DPJT had been satisfied.

• However, it seems to me that Box 5.1 §1 which in effect requires in a DMJT that the lands already have been subjected to a DPJT and Box 5.1 §5.27 which applies where the lands were zoned without a DPJT, make it clear that a DMJT cannot, at least as to large scale residential development such as that at issue here, substitute for a DPJT. I do not think I can interpret Box 5.1 of the Guidelines otherwise.

• That being so, I cannot interpret the TPA Submission on the Draft Plan as a DPJT of Residential zoning of the Subject Lands.

Note #2

• A further issue arises. As has been seen, TPA asserts satisfaction of DPJT Criterion 2(v) by saying, in what appear to me to be carefully chosen words:

“… there are no suitable alternative lands to accommodate the appropriate combination of commercial and residential use within, or adjoining the city’s core area that are at a lower risk of flooding. … There are limited available development lands adjoining the subject site that are located closer to the city centre”.

• First, the assertion of absence of suitable alternative lands for “the appropriate combination of commercial and residential use” does not appear to me to be the same thing as an assertion of the absence of suitable alternative lands for residential use. Indeed, there is no evidence for the premise that the particular envisaged “combination of commercial and residential use” is necessary in any relevant sense and so cannot be Avoided or Substituted on application of the Sequential Approach.

Assessment of major proposals for development in areas of flood risk pending implementation of these Guidelines.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 That premise is a false one – or at least has not been demonstrated correct on any evidence-base, much less a solid one. Indeed, it is perfectly possible to envisage the availability of suitable alternative lands for residential use in the absence of suitable alternative lands for the posited “appropriate combination”. On this view, Voyage’s submission simply did not address DPJT Criterion 2(v) as to alternative lands for Residential use.

• Second, the posited comparator of lands both adjoining the subject site and closer to the city centre also amounts to a false premise.

• Third, counsel for the OPR submits249 that Voyage’s assertion of satisfaction of DPJT Criterion 2(v) by reason of the absence of suitable alternative lands is a mere assertion in a context in which the Flood Risk Guidelines require, in order that Flood Zone A lands be exceptionally250 zoned for highly vulnerable residential development, not mere assertion but clear demonstration by the proposer of such zoning - and that on a solid evidence-base.251 I consider that point well-made. That the point might arguably also be made of the contrary assertion – that suitable alternative lands for residential use are available and zoned – doesn’t assist Voyage. That is because, faced with a strong presumption against development in Flood Zone A, Voyage bore the positive onus of demonstration by way of solid evidence on this point.

• Fourth, I should add that counsel for Voyage invokes, I think correctly, TPA’s invocation of a dissonance between the Draft Plan’s reduction of the residentially zoned area of the Greenpark Lands and the espousal of its residential development in the Limerick 2030 Interim Update which is incorporated in the Draft Plan. However counsel, I think correctly, ultimately didn’t greatly press the observation as weighing much in law.252 Returning to the TPA Submission, it recorded253 that the Draft Plan core strategy table states that no additional zoned land is required to accommodate growth in Limerick City and Environs - with 358 ha of existing zoned undeveloped land available with capacity for 12,322 residential units. This prompts a response by TPA as follows:

“Given that the Residential zoning of the Greenpark Lands has decreased by c. 15 ha in the Draft Plan with capacity for c. 650+ no. residential units in a highly accessible inner suburban location, we submit that there may be lands identified for residential development purposes that are less suitable when assessed against the relevant National, Regional and Draft Plan policies and the sequential approach to the zoning of residential land as set out in the Development Plan Guidelines.”

Note #3: The foregoing is striking in two aspects:

• First, it assumes that the Draft Plan, in asserting the adequacy of existing zoned undeveloped land had, as it were, “forgotten” its proposed re-zoning of part of Voyage’s lands from Residential to Enterprise and Employment. This is highly unlikely. Indeed, it would have been incompetent on the part of LCCC.

Transcript Day 3 p85.

250 Flood Risk Guidelines §1.1, §3.5, pp29, 68.

251 Flood Risk Guidelines §4.23.

252 Transcript Day 1 p131 et seq.

p48.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

3 September 2021 Voyage (TPA) Submission to LCCC on Draft Plan - September 2021 Far more likely is that the Draft Plan core strategy, in referring to “existing” zoned undeveloped land, assumed zoning in accordance with the Draft Plan itself and so assumed that the most of the Greenpark Lands, including the Subject lands, would be zoned for Enterprise and Employment use – not Residential use.

• Second, and the first point aside, Voyage’s anaemic assertion that “there may be” less suitable residentially zoned lands falls far short of its onus of demonstration on a solid evidence-base. Note #4: Concluding Note on TPA Submission on Draft Plan

• For the reasons I have set out in the notes above, it is not possible to accept that the TPA Submission is correct in its claim to have demonstrated “that the Greenpark Lands satisfy the requirements of the Development Plan Justification Test.”254

CHRONOLOGY RESUMED – FROM 6 SEPTEMBER 2021

Date Event

6 Sept. OPR Submission on the Draft Plan - under s.31AM(1)&(2) PDA 2000 2021 • The OPR asserted that:

o Its recommendations relate to “clear breaches” of legislative provisions, the national or regional policy framework, and/or ministerial guidelines.

o The planning authority is required to implement or address such recommendation(s) “to ensure consistency with the relevant policy and legislative provisions.”

• Recommendation 17 “required” a DPJT for lands at Dock Road zoned Enterprise and Employment.

Note:

• Inasmuch as it required compliance with non-binding ministerial guidelines this OPR submission was erroneous – Cork County Council.255

• However this submission is of no direct consequence in the proceedings as MA 147 post-dated those recommendations.

22 Sept. Voyage (RPS) SSFRA for SHD – 22 September 2021 2021 It:

• Related to a total SHD Site area of c.10.5 ha (a substantive residential site of c.7.9 ha) - largely in the south-eastern Greenpark Lands.256 That area included the southern strip of and some of the northern area of the MA 147 Lands. But by far the greater part of the northern area of the MA 147 Lands – i.e. the Subject Lands – was not included.

254 p47.

255 Cork County Council v Minister for Housing, Ireland and the Attorney General, [2021] IEHC 683, [2021] 11 JIC 0502.

See Figure 2.1 Aerial photograph indicating the extent of the SHD Site, Figure 4.1 Overall Masterplan, Figure 4.2 Proposed SHD layout.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• In considerable part and unsurprisingly, repeated content of the RPS Masterplan FRA of December 2020.

• Noted that most of the SHD Site is in Flood Zone C.

• Concluded that the SHD Site elements in Flood Zones A and B met the DMJT.

Notes

• The SHD Site was excluded from the effect of the Impugned Direction. This SSFRA and the DMJT done in it overlaps not at all with the Subject Lands.

• As Voyage later cast it in doubt, I should make clear my acceptance that this SSFRA is correct in recording that most of the SHD Site is in Flood Zone C – at least as it relates to that part of the SHD Sie on which housing is to be built. Sept 2021 The Draft Plan public consultation period ended.

7 Oct. 2021 Voyage applied to the Board for permission for an SHD Development on its SHD Site.257

• The application included the RPS SSFRA of 22 September 2021.

Notes #1

• A Zone C area in the far south-eastern corner is excluded from the SHD application but is earmarked as a nursing home site and is separated from the remainder of the Greenpark Lands by the SHD Site.258

• A Zone C area in the far north-eastern corner of the old racecourse lands is not owned by Voyage.259

• As might have been expected in maximising its prospects of success, Voyage’s SHD application encompasses all its Flood Zone C lands.

• As will be seen, the SHD application succeeded.

• As has been seen, the Impugned Direction directed LCCC to reinstate the Enterprise and Employment/Open Space and Recreation except in respect of the SHD lands.

• The net effect is that the Ministerial Direction, as it affects Voyage’s Subject Lands, affects only lands in Flood Zones A and B.

25 Nov. Limerick 2030 Interim Update (KPMG) 2021 • Unlike its June 2021 predecessor, this no longer specifically identified the Greenpark Lands – it did not identify them as an opportunity or destination site for any use.

• It is not clear on its face but this seems to have been a draft.

26 Nov. CE Report to Members on Draft Plan Consultation & Updated JBA SFRA - November 2021 2021 This CE Draft Plan Report included the following as to the Greenpark Lands:260

• It recommended that they be zoned for Enterprise and Employment use and that a masterplan be prepared accordingly.

• The main issue as to the suggested re-zoning to Residential use relates to flood risk.

257 371 residential units.

258 See Figure 2.4: TPA Planning report 6/10/21 in the SHD Application. See also RPS SSFRA 22/9/21 §4.3 & Figure 4.3.

259 See Title “Map 2” exhibited by John Keane Affidavit sworn 20/12/22.

The Voyage submission is addressed on pp176 – 179.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• To comply with the Flood Risk Guidelines, LCCC’s “approach to the zoning of land is to avoid development in areas at risk, where possible, and substitute less vulnerable uses, where avoidance is not possible.”261

• Highly vulnerable uses, including residential, are zonable in Flood Zones A and B only if a Justification Test is passed. In considering the Justification Test, it should be noted that to achieve compact growth, the Draft Plan takes a city centre first approach to spatial development. The urban core is defined as the area zoned “City Centre”.

• Importantly, the CE states of the Greenpark Lands:

“… Part 2 of the Justification Test requires the Local Authority to consider a number of factors, including whether the site is located within the core, or if there are suitable alternative lands, for the particular use or development type, in areas at lower risk of flooding, within or adjoining the core of the urban settlement. The Draft Plan has zoned sufficient alternative residential lands to meet the requirements of the Core Strategy, in areas that are not at risk of flooding and suitable for the provision of highly vulnerable uses in accordance with the sequential approach of the Guidelines.

The Justification Test does not pass, it is recommended that these lands are not included for New Residential zoning.”262

• The main constraint to development in this case is flood risk. Residential development is amongst the land uses most vulnerable to flood risk. To avoid this risk and to ensure compliance with the Flood Risk Guidelines, retain the zoning as Enterprise and Employment - a less vulnerable use.

Updated SFRA - 26 November 2021 - JBA/LCCC263 Note: As exhibited, this report is confusingly, it seems erroneously, entitled as follows:

“Volume 2, Material Alterations, Draft Limerick Development Plan 2022 - 2028 Strategic Flood Risk Assessment, 26th November 2021”.

• In fact:

o It long precedes the material alterations phase of the plan-making process and does not consider those material alterations. Perhaps the title anticipated its informing the next phase of the plan-making process, which was the material alterations phase.

o It was clearly commissioned by the LCCC Executive as an update on the JBA SFRA of June 2021 which had informed the public consultation on the Draft Plan. The purpose of the update was to accompany the CE Report of the Members informing them of the outcome of that consultation.

o JBA’s SFRA on the material alterations followed in March 2022.

261 Emphases added.

262 p178. Layout changed for exposition. Emphasis added.

263 Full Title - Volume 2, Material Alterations, Draft Limerick Development Plan 2022 – 2028, Strategic Flood Risk Assessment, 26th November 2021. The

Revision History on the document records that it is an updated version – p6 – of a version of June 2021 – p5 updated “in line with CE report”.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• As to the Greenpark Lands, it simply repeats, unchanged, the content of the June 2021 Draft Plan SFRA – i.e. the lands are in Flood Zone A, are to be zoned Enterprise and Employment and satisfied the DPJT for that use.264

• It does not reflect MA 147, as MA 147 was yet to be proposed.

LCCC published the updated SFRA with the CE Draft Plan Report. Notes #1 on the CE Draft Plan Report

Voyage pleads265 that the CE Draft Plan Report and recommendation was made ultra vires, as:

• In breach of fair procedures and of s.12 PDA 2000.266

• Failing to take relevant considerations into account and taking irrelevant considerations into account.

• Irrational and not evidence-based.

Voyage says the CE Draft Plan Report:267

• Failed to address important issues raised in its TPA Submission in the Draft Plan consultation, including the oversupply of Enterprise and Employment lands and the planning justification (based on national and regional policy) for the Greenpark Lands to be zoned New Residential.

• Lacked any basis for asserting that the DPJT for Residential zoning was not passed - as the material alterations SFRA had not attempted a DPJT for Residential zoning.

Notes #2 on the CE Draft Plan Report

It appears to me that:

• The CE’s assertion that “[t]he Draft Plan has zoned sufficient other residential lands to meet Core Strategy requirements in areas not at risk of flooding and suitable for highly vulnerable uses in accordance with the Guidelines’ sequential approach” is important. It is echoed in the OPR’s s.31AN(4) Notice of 28 September 2022 in a passage which the OPR’s counsel described at trial, in my view correctly, as its “core

conclusion”.

• That assertion by the CE is immediately followed by what I understand to be its asserted consequence:“[t]he Justification Test does not pass, it is recommended that these lands are not included for

residential zoning.” In other words, in the CE’s view it is apparent that the Justification Test for Residential

use is not passed is simply because Criterion §2(v)268 cannot be met. If so, further pursuit of a Justification Test for Residential use was clearly pointless.

• The logic of the foregoing is inevitably either or both of the following:

o Applying the first two phases of the residential test:

264 See A.1.3 Enterprise and Employment lands at Greenpark.

Core Ground 11.

266 s.12 is a lengthy section dealing with the making of development plans.

267 Affidavit of John Gannon of TPA, sworn 21 December 2022.

268 There are no suitable alternative lands for the particular use or development type, in areas at lower risk of flooding within or adjoining the core of

the urban settlement.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event ▪ Avoidance of Residential zoning of the Subject Lands is possible (as they are not required to meet housing targets); and/or ▪ Substitution of less vulnerable uses (non-residential uses) is possible;

such that Residential zoning is contraindicated by either or both of the first two elements of the Sequential Approach and the question of application of the DPJT does not even arise.

o In any event, even if the DPJT is applied as to Residential zoning, the Subject Lands inevitably fail Criterion 2(v) – that there must be “no suitable alternative lands for the particular use or development type, in areas at lower risk of flooding within or adjoining the core of the urban settlement.”

• On the premise of sufficient suitable land residentially zoned elsewhere and reasonably reading the CE Report as valid rather than invalid, the CE’s assertion that the Subject Lands fail the DPJT for residential development is proper. December Voyage deposes269 that it “only finally became aware”, when LCCC so admitted in the SHD 2021 process before the Board, that no DPJT had been done in making the 2010 Development Plan and zoning the SHD Site and the MA 147 Lands for Residential use. Note: I will address this averment below.

17 Jan. The Inspector’s report to the Board in the SHD Planning Application:270 2022 • Recorded that the “[t]he OPW mapping and the Limerick City Council Flood Maps indicate that the majority of the subject site is located within Flood Zone C.”

• Advised accordingly that “the proposed development should be assessed on its merits”.

• Essentially accepted the RPS DMJT.

8 Feb. 2022 The Board permitted the SHD subject to 25 conditions.

Notes

• The RPS FRA, including its DMJT, was before the Board.

• Part of the SHD Site was in Flood Zones A & B. Most was in Flood Zone C.

• LCCC had recommended refusal on flood risk grounds only. Feb. 2022 Motion for Material Alteration of Draft Plan - February 2022

• An LCCC Member proposed a motion to zone the MA 147 Lands as Residential.

• The motion consisted of a seven-page document listing 10 reasons for the proposal.271

• The motion asserted that “[t]his proposal reflects retention of the quantum of land zoned residential under” the 2010 Plan.272

• Reason 2 asserts that “[t]he Draft Plan doesn’t zone enough lands for New Residential development.” It quantifies the alleged shortfall. Reason 3 is in similar vein and asserts that “Greenpark presents the best opportunity to partially bridge this shortfall.”

269 Affidavit of John Gannon of TPA, sworn 21 December 2022.

270 Inspector’s report ABP-311588-21 §10.7.3 et seq.

271 It is exhibited.

See above - Figure 3 – 2010 Development Plan – Land Use Zoning and Figure 1 – Extract from Material Alterations Map.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Reason 8 asserts that “[d]espite what is stated in the Draft Plan SFRA, there is no distinction drawn in the PSFRMG273 between ‘Highly Vulnerable’ and ‘Less Vulnerable’ uses in terms of their requirement to pass a Justification Test once the lands are located in Flood Zone A … Under this sequential approach, once the lands are in Flood Zone A, both ‘Highly Vulnerable’ and / or ‘Less Vulnerable’ uses require a Justification Test and once this test is passed the authority are not restricted regarding land use that can be applied.”

• Reason 9 asserts that “[i]n the Draft Plan, LCCC has passed the Greenpark lands under the Justification Test. This is the correct result given the strategic location and characteristics of the lands, but having passed the Justification Test LCCC has then chosen to zone the lands Enterprise & Employment, for which there is no planning need.”

• Reason 10 purports to demonstrate that “Greenpark passes the Justification Test for Residential” – setting out a table considering the issue with reference to the DPJT criteria of the Flood Risk Guidelines.274

18 CE Summary of Members’ Proposals to Amend Draft Plan275 February • This document ran to 62 pages of largely one-page summaries of the many 2022 amendments proposed by Members.

• The summary of the motion in question:

o Identified the lands by name and named the proposing member.

o Stated the proposal as being to change zoning at Greenpark from Enterprise and Employment to New Residential (14.71ha.)

o Showed a map of the lands illustrating the proposal.

o Described the proposer’s reason in three paragraphs – including:

▪ “Draft hasn’t zoned enough land for residential development.”

▪ “The strategic lands follow the sequential approach and pass the Justification Test for Residential (submitted in response to the motion)”.

Adoption of MA 147 – 18 February 2022

Voyage pleads that:

• While the motion itself included “the substantive wording from the RPS DPJT as outlined in the TPA submission of 3 September 2021. However, the version that was subsequently presented by the forward planning team to the elected members was a substantially summarised version i.e. three bullet points on one page including a map of the lands.”276

The LCCC Members:

• Adopted, unopposed, the motion for material alteration of the Draft Plan to zone the MA 147 Lands “New Residential”.

273 Flood Risk Guidelines

The text in the left column is clearly taken from Flood Risk Guidelines, Box 4.1 – though it is not explicitly so attributed.

275 The full title to this document is “Limerick Development Plan 2022 – 2028, Special Council meeting to consider the Chief Executive report on

submissions received during the public consultation period on the Draft Limerick Development Plan 2022 – 2028, Amendments Received from Elected

Members, 18th February 2022.”

Amended Statement of Grounds Part 2 §19 & Part 1 §57.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Decided not to comply with certain OPR recommendations as to the Draft Plan.

The Minutes of the meeting simply record the adoption of the motion. They do not record reasons for its adoption.

OBSERVATIONS ON PROPOSAL AND ADOPTION OF MA 147 & PROCESS THEREAFTER

98. This amendment of the Draft Plan was later identified as MA 147. The MA 147 Lands include the Subject Lands. The text of the motion and supporting reasons was supplied by Voyage to the proposing Member.277

99. As to the motion paper:

• Reasons 8 and 9 are in error. They echo the TPA Submission of September 2021 in suggesting that the DPJT is applied and passed or failed without distinction between different types and/or vulnerabilities of development and that only after it has been passed is a particular zoning chosen. As I have demonstrated earlier, that is incorrect. A DPJT must contemplate a specific form of development.

• As to Reason 10:

o Despite reasons 8 and 9, Reason 10 purports a “Justification test for Residential”.

o Though the table came from Voyage, its authorship and the expertise of the author are not identified on the face of the motion paper.

o It does not purport on its face to be a repetition of the RPS SFRA of the Masterplan or of the SHD process – each of which had included a DMJT but not a DPJT.

100. The factual sequence events as to the reasons for which the Council adopted this motion was discussed at trial.278 Ultimately counsel for Voyage took the view that while the Member who set down the motion had done so by a motion paper listing the 10 reasons identified above, only the Executive’s summary of the motion was before the Members and can be considered to have encompassed their reasons for passing it. I confess that I am unclear that that was the correct inference. However, that summary did record the assertion, as a reason proffered in favour of the motion, that “[t]he strategic lands follow the sequential approach and pass the Justification Test for Residential …”. Counsel agreed that this must be a reference to Voyage’s reliance on the RPS Justification test and submitted that, in approving this motion and approving the proposal of the material alteration, the councillors relied on the RPS report to the effect that residential development passed the Justification Test in respect of these lands.279

101. Voyage asserts280 that:

• Reason 10 consisted, substantially, of

277 That is not a criticism – it is merely a statement of fact.

278 Transcript Day 2 p61 et seq.

279 Transcript Day 2 pp64 - 66.

Affidavit of John Gannon of TPA, sworn 21 December 2022, §21. Transcript Day 2 p17.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

o The “DPJT” in the TPA Submissions of September 2021.

o A working out of the Justification Test based on the RPS SFRA.281

• The CE Summary of the motion was inadequate and in particular, it did not reflect Reason 10.

102. In my view there is nothing in Voyage’s complaints in these regards:

• As has been seen, I do not consider the TPA Submissions of September 2021 to have contained a DPJT. And RPS never did a DPJT.

• The CE document was clearly a summary. Members interested could no doubt have regard to the underlying motion papers. Proposing Members, or their interested constituents such as Voyage, dissatisfied with the summary of their motions, could no doubt distribute the underlying motion papers. Indeed, they did so in the case of the later MA 147 Motion adopted on 17 June 2022.282 There is no evidence that the underlying motion papers were not to hand. There is no evidence that any Member was materially misled by the CE document.

• The summary of the proposing Member’s reasons was brief, but in my view adequate. In particular, as has been seen and as concerned Reason 10, it recorded that the: “lands follow the sequential approach and pass the Justification Test for Residential”.

• While the words in the CE Summary “(submitted in response to the motion)” are odd, the reference can only be to the TPA DPJT of September 2021.

• In any event, even if the summary was inadequate, Voyage did not suffer as the motion was passed unopposed.

103. The minutes of the Members’ resolutions of 18 February 2022 were clearly made pursuant to s.12(6) PDA 2000283 and consisted of the making of the development plan, as amended, and subject to s.12(7) PDA 2000. S.12(7) provides for further public consultation on any amendments amounting to “material alterations” of the Draft Plan – following which the members must reconsider the material alterations.

104. However, it is important to state that, subject to that further public consultation and reconsideration, the material amendments as reflected in the development plan represented the statutorily established, democratically validated and corporate position in law of LCCC, albeit provisional, that the material amendments be adopted. Thus, by the adoption of MA 147, LCCC’s corporate position as to the zoning of the MA 147 Lands, albeit provisional pending the consultation process, was:

281 Emphasis added.

282 Affidavit of John Keane, sworn 15 April 2024. He attended the public meeting of LCCC on 17 June 2022 at which the Members made the

Development Plan. The MA 147 motion of 8 June 2022, including the seven reasons given in it, had, prior to the meeting, been circulated to the

Members, was distributed at the meeting and was displayed to them at the meeting on a large screen.

283 Where, following the consideration of the draft development plan and the chief executive’s report, it appears to the members of the authority that

the draft should be accepted or amended, subject to subsection (7), they may, by resolution, accept or amend the draft and make the development

plan accordingly.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• That MA 147 was incorporated in the Development Plan such that the MA 147 Lands were to be zoned Residential.

• Not that preferred by the LCCC Executive – Enterprise and Employment zoning.

105. It follows that, whether the LCCC Executive agreed or not – it clearly did not – its duty was to take the appropriate steps to enable MA 147 to take effect in accordance with the Members’ decision. That, of course, would not inhibit the Executive from, in due course, advising the Members, on their reconsidering the matter pursuant to s.12(10) PDA 2000, against including MA 147 in the Development Plan and from carrying out its other statutory duties. But meanwhile, as I say, the Executive’s duty was to effect the Member’s instruction. Voyage says that required a DPJT for residential use.284

MATERIAL ALTERATIONS DOCUMENTS FOR PUBLIC CONSULTATION - 12 MARCH 2022

12 March 2022 Material Alterations Documents for Public Consultation

12 March to LCCC published for public consultation a suite of documents which included:

11 April 2022 • The CE Report, “Proposed Material Alterations” to the Development Plan, dated

12 March 2022.

• The JBA/LCCC SFRA of the material alterations dated 12 March 2022, including the papers supporting MA 147. 285

• An SEA of the Development Plan subject to the proposed material alterations.

CE Report, “Proposed Material Alterations” to the Development Plan

• The CE Report lists MA 147 as “[c]hange the Zoning of 14.71ha. From Enterprise and Employment and Open Space and Recreation to New Residential at Greenpark”.286

• It also contains a “Settlement Capacity Audit” Table.287 The relevant accompanying map288 identifies the MA 147 Lands as Site 133 and the table describes its area as “4.841 19.55” hectares and as having a “New Residential” zoning. Notes

• This CE Report merely sets out the material alterations, it does not comment on them.

• As stated earlier and perhaps due to my failure, I have been unable to understand the area measurements. But nothing turns on that. Material Alterations SFRA (including Appendix D) – JBA/LCCC – 12 March 2022 It:

• Repeated much of the June 2021 and November 2021 JBA SFRAs.

284 Transcript Day 1 pp74 & 80.

285 In Appendix D.

Report 259 – Table headed “Level 1 - Limerick City and Environs, including Mungret and Annacotty Zoning and Settlement Capacity Audit, Zoning,

Flood and Transport Maps - Material Alterations”; Settlement Capacity Audit, Zoning, Flood and Transport Maps - Material Alterations.

287 Table 1: SCA Limerick City and Environs, Mungret and Annacotty lands identified for potential Residential, or a combination of Residential and other

Mixed-Use development.

Residential Settlement Capacity Audit Material Alterations Map, March 2022.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

12 March 2022 Material Alterations Documents for Public Consultation

• Appended289 a DPJT for Enterprise and Employment zoning of the Greenpark Racecourse Lands, including the MA 147 Lands, in almost exactly same terms those of June and November 2021.290

• That DPJT includes the following new text:

o “Conclusion - Although not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site, less vulnerable uses (Enterprise and Employment) with appropriately detailed FRA and emergency plan, may be accommodated.”

o “Recommendation - Site should remain Enterprise and Employment.”

o “Members’ Amendment – ▪ A motion was passed to change the zoning to residential, which included a FRA and justification test (see Appendix D).291 ▪ However, despite reviewing the information provided, the assessment and details of the Justification Test previously undertaken apply and the recommendation to retain water compatible / less vulnerable uses as appropriate to the Flood Zone remains.”

• Appended292 also a response to the motion to change the MA 147 Lands zoning to residential – recording that: “A submission was received which included a FRA. However, despite reviewing the information provided the assessment and details of the Justification Test previously undertaken apply and the recommendation to retain water compatible / less vulnerable uses as appropriate to the Flood Zone remains.”

• Appendix D included the papers supporting 8 listed proposed material amendments - of which “Greenpark” (the MA 147 Lands) was the first.293 It included the following:

o The TPA Submission of 3 September 2021.

o Voyage’s draft motion to zone the MA 147 Lands Residential – including the 10 reasons it listed. As has been seen, Reason 10 purported to show that Residential zoning passed the Justification Test.

o The RPS Greenpark Masterplan FRA of December 2020 – which included a DMJT.

o The RPS Greenpark SHD FRA of September 2021 – which included a DMJT.

o The Lisney Report of 30 August 2021 on the Draft Plan. Notes on JBA Material Alterations SFRA - 12 March 2022 a. By Appendix D, the documents relied on at trial by Voyage as demonstrating a DPJT of Residential zoning by the Members in February 2022 were in the public domain.

b. Voyage criticises this SFRA. It says that:

o JBA’s function at this point was to at least:

▪ Accept that the Members had adopted MA 147 in the exercise of their statutory powers.

▪ Accordingly, itself do a DPJT of the MA 147 Lands for Residential zoning.

Appendix A – “A.1.3 Enterprise and Employment lands at Greenpark.”

290 The minor difference is irrelevant.

291 See content of Appendix D listed below.

292 Appendix C - Response to Councillors Motions - #35.

Appendix D, item 1, ref Greenpark LCC – C62 – 129.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

12 March 2022 Material Alterations Documents for Public Consultation o Accordingly, and as JBA did no DPJT of the MA 147 Lands for Residential zoning, it was not logical or correct for JBA to opine that those lands were “not suitable for highly vulnerable development” or that “the assessment and details of the Justification Test previously undertaken apply.” Voyage says, JBA deemed Residential use to have failed the DPJT without having done a DPJT for Residential use.

o Voyage points out, indeed and correctly, that it is precisely for vulnerable uses on flood zones that a DPJT is done.

c. The motion of 8 June 2022294 alleges that the LCCC Executive, by this SFRA, failed to execute the Members’ instruction of 18 February 2022 (i.e. in MA 147) in that it failed to do a DPJT for residential development on the Greenpark Lands, such that the conclusion of unsuitability for residential development was “unsubstantiated”.

d. I consider that, in appreciable respects, Voyage’s criticism is valid for reasons which bear some repetition.

o The Members’ statutory adoption of MA 147, in the performance of their reserved function, had the effect that Residential zoning represented LCCC’s provisional corporate position, even if the Executive disagreed with that position.

o The Executive’s role at this point was to accept the instruction which the Members, by adopting MA 147, had given it – at least to the extent of providing the necessary analysis of the prospect of Residential zoning of the MA 147 Lands.

o Of course, the Executive could continue to advise against Residential zoning. But it is, at least prima facie, difficult to understand why the SFRA of 12 March 2022 did not include a DPJT for residential development on the MA 147 Lands. The whole point of that SFRA was as a response to the material alterations, including MA 147. To put it another way, JBA, in an SFRA, including DPJTs, of the material alterations omitted to perform a DPJT of MA 147.

o As I have already observed, that the MA 147 Lands passed a DPJT for Enterprise and Employment use does not, per se, imply that they would fail a DPJT for Residential use (for example, all other things being equal, there may have been other, low flood-risk lands suitable for Enterprise and Employment use available but no available other lands for Residential use).

e. In the foregoing light, in my view, the text of the “Conclusion” of JBA’s March 2022 DPJT of the Subject Lands is problematic in its introductory phrase: “[a]lthough not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site”:

o Encompassing, as it does, residential development and the gravamen of MA 147, it comes, as it were, out of the blue – almost in passing. JBA’s DPJT of the MA 147 Lands is explicitly of Enterprise & Employment development only. Despite the Members’ adoption of MA 147, JBA did no DPJT of residential development of the Subject Lands. So this introductory assertion of unsuitability for highly vulnerable development cannot have been based on such a DPJT.

o The reference, under the heading “Members’ Amendment” to the RPS material supplied by Voyage – notably two DMJTs of residential development – is perfunctory.

o Nor have I been directed to or found:

Below. Proposed at the meeting at which the Members made the Development Plan.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

12 March 2022 Material Alterations Documents for Public Consultation ▪ A rationale for the assertion that “the brownfield nature of the site” (in fact a former racecourse and later identified as greenfield in the Development Plan as adopted)295, as a matter of flood risk, rules out or even militates against residential development.

▪ Analysis of, quantification of or substantive conclusions as to the level of residual flood risk as it relates to residential development of the MA 147 Lands, including flood risk mitigation (by definition, residual risk is assessed post-mitigation).

f. These criticisms of the JBA/LCCC SFRA of the material alterations, considered alone, are far from insubstantial. However, given Appendix D as to “Greenpark” (the MA 147 Lands), this SFRA must be nonetheless read as:

o Having given a comprehensive account of MA 147, all reasons given for it and the materials supporting it.

o Disclosing the TPA Submission of 3 September 2021 and the RPS FRAs, including their respective DMJTs of residential development, and confirming that regard thereto had been had by JBA.

o Having considered the RPS FRA included in the motion to pass MA 147 and the 10 reasons it gave (See also above under the heading “Members’ Amendment” and as to the content of “Appendix D”))

o Nonetheless standing over JBA’s earlier DPJT as to Enterprise and Employment Zoning and Recommending against MA 147.

g. Not without misgivings, it seems to me that, taking it with Appendix D - the documents favouring MA 147 - the public were not deprived by the March 2022 FRA of the material required to allow adequate public consultation on the issue of MA 147.

h. And, in any event, MA 147 survived and was incorporated in the Development Plan. SEA of Draft Development Plan subject to Proposed Material Alterations

• In describing MA 147, the SEA replicated the content of the CE document of 18 February 2022 which, I have held, adequately summarised the reasons for which MA 147 was passed – including that the Draft Plan had zoned insufficient land for residential development and that the MA 147 Lands “follow the sequential approach and pass the Justification Test for Residential”.296

• The SEA of MA 147 consists of the following:

“SEA Comments: The proposed material amendment made by the Elected Members included a proposal to rezone this land to residential. A site specific flood risk assessment and justification test was submitted as part of the supporting documentation for the change of zoning. The information was reviewed as part of the SFRA on the material alterations, which concluded that site should be retained for less vulnerable uses as appropriate to the flood zone. This proposed amendment is inconsistent with EPO HTP 1297 which requires compliance with higher tier plans such as the National Planning Framework and the Regional Spatial and Economic Strategy and other guidance issued by the Department.

295 Development Plan 2022, Map 1: Limerick City and Suburbs (in Limerick), Mungret and Annacotty - Residential Settlement Capacity Map.

296 p208 “33. Amendment - Change to Zoning at Greenpark from Enterprise and Employment and Open Space to New Residential (14.71ha.)”.

297 SEA p64. As to HTPs and EPO’s see glossary below. Essentially an EPO HTP articulates an Environmental Protection Objective as to the taking into

account in SEA of Higher Tier Plans and environmental considerations.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

12 March 2022 Material Alterations Documents for Public Consultation Furthermore, concerns have been raised by the OPW with regard the prematurity of zoning of these lands pending the Limerick City Flood Relief Scheme being progressed.” Notes

• As to MA 147, this SEA Comment can only be described as entirely general. Of itself, it provides no useful, substantive or informative account of the reasons for rejection of Voyage’s SSFRA and JT or of the alleged inconsistency with EPO HTP 1. For example, though invoking the NPF generally, it does not mention NPO 57 or its requirement of accordance with the Flood Risk Guidelines. All that is not necessarily a criticism as it does cross-refer to the SFRA on the material alterations and Box 4.1 of the Flood Risk Guidelines views SFRA as part of the SEA process. As to that SFRA, see my comments above. Limerick 2030 Interim Update (KPMG)

• Though it is not clear on its face, this appears to have been a draft.

• Unlike its June 2021 predecessor, this no longer specifically identified the old Greenpark Racecourse lands – and specifically did not identify them as an opportunity or destination site for any use.

CHRONOLOGY RESUMED – FROM 14 MARCH 2022

Date Event

14 & LCCC notified the OPR that it had decided not to comply with certain OPR recommendations as to

30 Mar the Draft Plan.298 2022 The Board order for the SHD permission issued.299

4 April Voyage (TPA) Submission on MA 147 – April 2022 2022 It repeated much of TPA’s earlier submission supporting MA 147 and inter alia,

• Noted that the MA 147 Lands were “stated to be 14.71 ha” but were identified on the amended City and Environs Zoning Map and in the Residential Settlement Capacity Audit as Site

133 and as 19.55 ha.300

• Disputed JBA’s application of the DPJT. TPA again asserted that the DPJT is applied independently of the type of development envisaged, with no distinction between “highly” or “less vulnerable development”, and that if it is passed for Enterprise and Employment it must be passed also for Residential use. TPA cited the RPS SSFRA/DMJT.

• Asserted that the JBA DPJT of the MA 147 Lands for Enterprise and Employment use was flawed as LCCC and JBA had misinterpreted the MASP as designating the Greenpark Lands as within the DRSEL, and so as essential for employment uses. Only the docklands north of Dock Road, identified in the LDFS,301 are so designated.

• The flood risk can be managed and the residual risk will not cause unacceptable adverse impacts elsewhere.

Notes

298 Pursuant to s.12(5)(aa) PDA 2000. This is of no consequence in the proceedings as MA 147 post-dated those recommendations.

299 See 8 February 2022.

300 §2 p1. As I have said, I do not think anything here turns on this alleged discrepancy.

Limerick Docklands Framework Strategy Feb. 2018 - see above.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• As I have explained, TBA’s assertion that DPJT is agnostic as to land use types is wrong. The DPJT must be done with reference to a contemplated development type.

• I agree with TPA that the Greenpark Lands are not part of the MASP-designated DRSEL. I will return to that issue.

7 April OPW Submission on Material Alterations 2022 The OPW opposes, inter alia, MA 147 as:

• Allowing inappropriate development in Flood Zones A and B, despite failing the PMJT.

• Inconsistent with the Flood Risk Guidelines’ approach to flood risk management. If zoning cannot be justified it should be avoided or substituted by a zoning appropriate to the level of flood risk.

Note – I respectfully suggest that this submission, while not incorrect in substance, reverses the proper sequence of the Sequential Approach. Avoidance and Substitution precede, and may well dispense with the need to apply, a Justification Test.

11 OPR Submission to LCCC on Material Alterations (incl. Recommendation #4) – 11 April 2022302 April It: 2022 • Notes that the Flood Risk Guidelines allow for some sustainable development of land at risk of flooding - but in exceptional circumstances and where a JT is passed.

• Considers it critical not to zone for unsuitable development in flood-vulnerable areas.

• Expresses concern:

o At the large number of proposed zoning amendments as inconsistent with s.28 guidelines and/or national and regional policy, and which individually and cumulatively may fail to set out an overall strategy for the proper planning and sustainable development of the area.

o That LCCC has decided to zone extensive lands in Flood Zones A and B for flood-vulnerable uses despite the lands having failed the justification test in the authority’s own SFRA.303

• As to Housing and Population Targets304 and Compact Growth, Regeneration and Sequential Development305 the OPR:

o Has assessed the extent of land zoned residential in the Draft Plan including a reasonable additional allowance to ensure sufficient choice.306 o Considers that:

▪ The Draft Plan zoned more than sufficient appropriately located land for residential and mixed-residential uses to implement the core strategy.307 ▪ Material alterations in flood zones are not required to meet the housing demand set out in the core strategy.

▪ Excluding those material amendments, the extent of zoned land will be consistent with that required by the core strategy.

302 The OPR again asserted that its Recommendations relate to clear breaches of the relevant legislative provisions, of the national or regional policy

framework and/or of…. Ministerial guidelines under section 28…. the planning authority is required to implement or address recommendation(s) … to

ensure consistencywith the relevant policy and legislative provisions.

pp3, 4 & 18 et seq. - §9. Flood Risk Management.

304 §2.1.

305 §3.1.

306 Consistent with the Development Plans, Guidelines for Planning Authorities - Draft for Consultation (August 2021) (the draft Guidelines).

p8.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Asserts that MA 147:

o Will place people and property at unnecessary flood risk.

o Is inconsistent with: 308 ▪ NPO 57 - to ensure to avoid inappropriate development in flood risk areas in accordance with the Flood Risk Guidelines.

▪ The Flood Risk Guidelines - to the effect that zoning which cannot be justified should be avoided or substituted by309 a zoning appropriate to the level of flood risk.310

• Sets out its Recommendation #4 as to Flood Risk Management: that LCCC make the Plan without multiple listed MAs - including MA 147.

10 May CE Report to Members on Public Consultation on Material Alterations – May 2022 2022 (“CE MA Report”)

As to MA 147, the CE:311

• Summarised the TPA Submission of 4 April 2022 supporting MA 147 – including that:

o The JBA DPJT is wrong as to the MA 147 Lands in:

▪ Locating the Greenpark Lands in the LDFS lands and so as a key Enterprise and Employment location by reference to the RSES/MASP as to the Dock Road lands.

▪ Considering them suitable for Enterprise and Employment use only.

o Under the Flood Risk Guidelines, if lands pass the DPJT they are suitable for development and no uses (however vulnerable) are precluded.312 o The MA 147 Lands pass the DPJT. The flood risk can be managed and the residual risk will not cause unacceptable adverse impacts elsewhere.

o Voyage’s DPJT concludes that the MA 147 Lands are suitable for Residential use.

o The MA 147 Lands are more suitable for Residential than Enterprise and Employment use.

• Responded to that TPA Submission of 4 April 2022 by:

o Invoking the OPR Submission of 11 April 2022 and reciting OPR Recommendation #4 requiring omission of MA 147 having regard to NPO 57 and the Flood Risk Guidelines.

o Recommending omission of MA 147 from the Plan on the basis of:

▪ The location of the lands within Flood Zones A and B; and ▪ The submissions of the OPR and OPW.

o Asserting that while the DPJT is either passed or failed, there is scope in Criterion 3 to “review the level of flood risk and impact this may have on the various vulnerabilities of development. Mitigation measures may then recognise a suitable vulnerability of development.” Notes on the CE Draft MA Report

308 p19.

The OPR says “for” but the error and its correction are obvious.

310 Again, this observation, while not incorrect in substance, reverses the proper sequence of the Sequential Approach. Avoidance and Substitution

precede and may well dispense with the need to apply a Justification Test.

311 pp56-59 of the CE Report.

As already stated, this much-repeated assertion is wrong.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Voyage pleads313 that the CE Draft MA Report and recommendation was made ultra vires, as:

o In breach of fair procedures and of s.12 PDA 2000.314 o Failing to take relevant considerations into account and taking irrelevant considerations into account.

o Irrational and not evidence-based.

• It seems to me that this report can be fairly criticised for not having engaged with and responded to the fact that TPA had purported to demonstrate that the DPJT was passed for Residential use. However, in invoking the recommendation and submissions of the OPR and OPW, the CE adopted the OPR’s invocation of NPO 57 and by reference adopted the OPR’s assessment and conclusion that the MA 147 Lands were not needed to implement the Plan’s Core Strategy as to housing demand on the basis that sufficient other lands were zoned Residential. That alone provides a basis for the MA 147 Lands’ failure of the DPJT as to residential use. Indeed, had this issue been framed in terms of the first part of the Sequential Approach (Avoidance), a DPJT as to Residential use might properly have been avoided altogether.

• One might quibble with the CE’s specific invocation of DPJT Criterion 3 as the means of identifying acceptable less vulnerable uses. Technically, at least it seems to me, that issue should be considered as a matter of Substitution ever before the question of a DPJT even arises. However, there can be no doubt that it is a strong theme of the Flood Risk Guidelines that, all other things being equal, in Flood Zones A and B, less vulnerable development should be preferred to highly vulnerable development. The Impugned

Decision should not be quashed on such a quibble. June Limerick 2030 Interim Update (KPMG) 2022 • Unlike its June 2021 predecessor, this no longer specifically identified the old Greenpark Racecourse lands – and specifically did not identify them as an opportunity or destination site for any use.315

• This version is marked “adopted”.

8 June Motion to Adopt MA 147 – 8 June 2022 2022 A Member, by 39-page316 motion, proposed the adoption of MA 147.

• The Member asserted that MA 147 reflects a retention of the quantum of land zoned Residential in the 2010 Plan. (That seems largely correct as relates discretely to the Greenpark Lands).

• The Member gave 7 reasons which can be summarised as follows:

1) The MA 147 Lands are very close to the city centre and can deliver 900 homes in a housing crisis in accordance with policies for compact urban growth and modal shift.317

2) The Board, in granting SHD permission, “sided with” the RPS SSFRA and accepted homes in

Core Ground 11.

314 S.12 is a lengthy section dealing with the making of development plans.

315 See p58.

316 Including appendices.

i.e. away from cars to public transport and active travel.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event Flood Zone A despite LCCC’s objection on flood risk grounds: “[c]irca 6.5 hectares (circa 16 acres) of these [SHD lands are] in flood zones A/B which equates to circa 60% of the total application lands.”318

3) (a) The Executive had failed to properly execute the LCCC Members’ instruction of 18 February 2022 in their adoption of MA 147. It failed to procure a DPJT of Residential use.

Accordingly the Executive’s conclusion that: "[a]lthough not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site, less vulnerable uses (Enterprise and Employment) with appropriately detailed FRA and emergency plan, may be accommodated" was unsubstantiated. The Masterplan SSFRA, by a recognized and well-respected flood risk expert (RPS), concludes the opposite – including by prescribing mitigation as to levels.

(b) The Executive’s justification for zoning the Greenpark Lands for Enterprise and Employment was flawed as the DRSEL does not include the Greenpark Lands.319

4) Both the OPR and the OPW submissions mistakenly assert that the land failed a Justification Test done for LCCC. It did not. It passed. And thereafter the land may be zoned for whatever planning need dictates, including highly vulnerable development.320 The RPS SSFRA vouchsafes mitigation to allow safe residential development.

5) The Draft Development Plan zoning matrix also envisages highly flood-vulnerable uses of Enterprise & Employment land, including hospitals, schools and childcare. Residential use is no more vulnerable.

6) The OPR would have been happy with Residential zoning had the Executive done a Justification Test as instructed by the Members.321

7) JBA’s SFRA for DLCCC’s322 Draft Development Plan states that highly vulnerable development should not be located in Flood Zones A & B, save in “areas deemed to have passed the Development Plan Justification Test”.

• The motion appended relevant extracts from the:

o JBA’s SFRA of the Material Amendments - 12 March 2022.

o RSES/MASP and Dockland Strategy.

o CE MA Report - 10 May 2022.

o Flood Risk Guidelines 2009 (2 extracts).

o OPR submission on Clare Draft Development Plan - 28 March 2022.

318 As will be seen, this assertion is controversial.

I have distinguished 3(a) and 3(b) for clarity as the seem to me to address quite different issues. However the reasons stated in the motion simply

put both in together as Reason 3.

320 I have above held that this assertion is wrong.

321 Citing an OPR submission of 28 March 2022 on the Clare Draft Development Plan.

Dún Laoghaire Rathdown County Council.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event o JBA’s SFRA for DLRCC’s323 Draft Development Plan 2022. Notes on Motion to Adopt MA 147 – June 2022

• The SSFRA for the SHD on which Voyage relied was explicitly attributed to RPS as a recognized and wellrespected flood risk expert.

• It is clear, or at very least it is the proper inference as a probability, that the proposer’s reasons were supplied by Voyage. So those reasons are especially notable for the assertion that 60% of the SHD Site is in Flood Zone A – the implication being a considerable willingness in the Board to permit housing on such a site. As will be seen, the Members later adopted this implication.

• This assertion and its implication are troubling. They are impossible to meaningfully reconcile with

– indeed are directly contradicted by - Voyage’s own SSFRA by RPS submitted to the Board in support of the SHD planning application. It explicitly states that:

o “the majority of the SHD Site is considered at low risk and in Flood Zone C.”324 o “Figure 3.5 shows that the majority of the site where housing is being proposed is in Flood Zone C”.325 Just as notably, in circumstances in which it would clearly have been in its client’s proper interest to do so were it correct, RPS does not anywhere assert that 60% of the SHD Site is in Flood Zone A. Nor does it make any similar assertion.

• As its inspector’s pre-application report records, the Board clearly accepted Voyage’s assurance in the SHD Process, undoubtedly to its advantage, that “[m]ost of the site is located within Flood Zone C.” The Inspector’s understanding as stated in her report on the SHD Planning Application remained that “[t]he OPW mapping and the Limerick City Council Flood Maps indicate that the majority of the subject site is located within Flood Zone C.”326

• I set out below an extract from Figure 3.5 of the RPS SSFRA for the SHD proposal.

o Flood Zone A is shown in the darker, and Flood Zone B in the lighter, shade of blue.

o Flood Zone C is shown in white. The red line surrounds the SHD planning application site.

o It is clear that RPS is correct in stating that “the majority of the site where housing is being proposed is in Flood Zone C”. 327 o I infer that it is possible technically (in notable contradistinction to meaningfully) to reconcile the apparent contradiction by including in the Zone A area the part of the SHD Site which is clearly assigned to the access route from the Dock Road to the housing area and upon which no housing will be built.328

323 Dún Laoghaire Rathdown County Council.

p1.

325 p11.

326 Inspector’s report dated 17 January 2022 §10.7.3.

327 See RPS SSFRA for the SHD proposal 22 September 2021 Figure 4.2 Proposed SHD layout. Emphasis added.

See RPS SSFRA for the SHD proposal 22 September 2021 Figure 4.2 Proposed SHD layout.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

Figure 3 Extract from Figure 3.5, RPS SSFRA for SHD proposal

• It is difficult in such circumstances to be impressed by Voyage’s varying descriptions of the Flood Zoning of the SHD Site. For my part I accept, as representing the substantial truth of the matter from a practical flood risk point of view, RPS’s assertion that “the majority of the site where housing is being proposed is in Flood Zone C”. I cannot therefore lend weight to the assertion of the Members’ inference of a considerable willingness in the Board to permit SHD housing on a site 60% of which is in Flood Zone A. Any such inference was clearly very wrong.

• As to the Plan’s zoning matrix for Enterprise & Employment lands, it envisages schools as generally permitted but hospitals and childcare as open for consideration.

• It is also odd, from Voyage’s own point of view, that this motion did not repeat Reason 10 of the earlier motion – which had purported to set out a DPJT of Residential zoning of the MA 147 lands. Nor did it refer to or append the TPA Submission of September 2021.

17 June LCCC MAKE DEVELOPMENT PLAN - 17 JUNE 2022 2022 • The LCCC Members met, considered the material alterations and made329 the Development Plan330 - including MA 147. Thus they zoned the MA 147 Lands Residential and rejected, in that regard, both the OPR Recommendation #4 of 11 April 2022 and the CE Recommendation of 10 May 2022.

• The Members by adoption of the plan contemplated an updated SFRA.

329 Overwhelmingly - 33 votes for, 2 against and 1 abstention. However, it is not apparent to me that any legal consequence turns on the details of the

vote or the scale of the majority.

S.12(10) PDA 2000.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

Figure 4 - Extract LCCC Development Plan 2022, Zoning Map 3: Limerick City & Suburbs o Residential zoning is depicted in Dark Brown and includes the Subject Lands.

Limerick 2030 Interim Update (KPMG) – Adopted June 2022

• This is found in Volume 6 of the 2022 Development Plan.331

• Unlike its June 2021 predecessor, it did not specifically identify the Greenpark Lands as an opportunity or destination site for any use. It identified the Docklands as Enterprise and Employment Lands.332 However it indicatively suggested the exploration of the feasibility of a 12 ha enterprise and employment opportunity coinciding with the office park in Voyage’s Masterplan.333 The minute of this meeting of 17 June 2022, adopted by the Members on 22 July 2022, records explicitly by way of summary, the Members’ reasons for the adoption of MA 147. The minuted reasons are:

• Extracts from the seven reasons set out in the motion of 8 June 2022 to adopt MA 147.

• In the same terms as those communicated by LCCC’s letter to the OPR of 23 June 2022.334 Development Plan SFRA (JBA) – 17 June 2022 It:

• Replicated the JBA DPJT “A.1.3 Enterprise and Employment lands at Greenpark” of 12 March 2022.

• Did not, in its own analysis, include a DPJT of the Residential zoning of the MA 147 Lands on which the Members had finally decided.

• Appended the same response as that it had made in its SFRA of 12 March 2022 to the motion to change the MA 147 Lands zoning to Residential,335 as follows:

Conclusion Although not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site, less vulnerable uses (Enterprise and Employment)

with appropriately detailed FRA and emergency plan, may be accommodated.

Recommendation Site should remain Enterprise and Employment.

331 Interim Review and Update of the Limerick 2030 Plan.

The map 3.5 markings straddle the Dock Road but I do not think anything should be read into that. That view appears confirmed by a map entitled

“Limerick 2030 City Centre Opportunities” at p109 and see also pp111 and 114.

333 p130 §7.1 and accompanying map.

334 See below – reasons are summarised.

Appendix C - Response to Councillors Motions #35.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event Members’ Amendment A motion was passed to change the zoning to residential, which included a FRA and justification test (see appendix D). However, despite reviewing the information provided the assessment and details of the Justification Test previously undertaken apply and the recommendation to retain water compatible / less vulnerable uses as appropriate to the Flood Zone remains.

• Appendix D – “Justification Tests submitted by elected Members”. It included a copy, of the RPS Masterplan FRA of December 2000. It did not include the TPA Submission of September 2021 but did include a copy of the Material Alteration Motion of February 2022, Reason 10 of which consisted, substantially, of the TPA DPJT of September 2021. Notes

• John Keane, of Voyage is not contradicted in his evidence336 that:

o He attended the LCCC meeting of 17 June 2022 at which the Members made the Development Plan.

o The MA 147 motion of 8 June 2022, including the seven reasons given in it, had been circulated to the Members before the meeting, was distributed at the meeting and was displayed to them at the meeting on a large screen.

• Voyage characterises the Members’ decision of 17 June 2022 as, in law, accepting not merely MA

147 but, necessarily, the seven reasons on which it was proposed – including the RPS SSFRA and JT of residential development on the MA 147 Lands.

• As I have noted, RPS never did a DPJT. The RPS Masterplan FRA of December 2000 included a DMJT only. As I have found above, the Flood Risk Guidelines337 are clear that a DMJT is not the same as, or a substitute for, a DPJT.

23 June CE NOTICE TO OPR OF MEMBERS’ DECISION & REASONS - 23 JUNE 2022 - S.31AM(6) PDA 2001338 2022 This Notice:

• Stated that LCCC had adopted the 2022 Development Plan, including MA 147, thereby zoning the MA 147 Lands New Residential.

• Stated the Members’ reasons for so doing as follows:

“6. Rejection of the recommendation of the Chief Executive dated 10 May 2022 and inclusion of Material Alteration No. 147, i.e. zone portion of the lands at Greenpark, former racecourse from A) Enterprise and Employment (с.12.98ha) and B) Open Space (1.73ha) to New Residential (14.71ha).

336 Affidavit of John Keane, sworn 15 April 2024.

337 §5.27.

338 Per Maria Woods, Senior Planner. S.31AM(6) provides that “A planning authority shall notify the Office within 5 working days of the making of a

development plan or a variation to a development plan and send a copy of the written statement and maps as duly made and where the planning

authority —

(a) decides not to comply with any recommendations made in the relevant report of the Office, or

(b) otherwise make the plan in such a manner as to be inconsistent with any recommendation made by the Office,

then the chief executive shall inform the Office accordingly in writing, which notice shall state reasons for the decision of the planning authority.”

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event A copy of the flood risk plan making Justification Tests submitted by the Elected Members, where relevant, to support the zoning of the above sites are set out in Appendix 3.339 A summary of Limerick City and County Councils' considerations of the issues raised in the OPR letter dated 11 April 2022 are outlined in Appendix 1 below. The CE report dated 10 May 2022 is available at …”.340

• Appendix 1 recorded the Members’ consideration of the issues raised by the OPR. It recites:

o OPR Recommendation #4 to omit MA 147.

o As the Members’ reasons for rejecting OPR Recommendation #4, the same extracts from the seven reasons set out in the motion of 8 June 2022 to adopt MA 147 as were later approved by the Members as minutes of their decision.341

• Those reasons are as follows:342

1. Delivery of well-located, suitable and affordable homes must be the first priority in the housing crisis.

2. The SHD permission, as to a site 60% of which was in Flood Zone A, demonstrates that An Bord Pleanála considers homes in Flood Zone A acceptable assuming suitable mitigation.

3. The LCCC Executive had not properly executed the instruction given it in MA 147 as it did not apply the JT to the lands in terms of New Residential use. Instead, it maintained its previous justification of Enterprise and Employment zoning, based on an unsubstantiated

conclusion that the land was unsuited for highly vulnerable uses but less vulnerable uses could be accommodated.

4. In the consultation process, the OPR and OPW had classified the Greenpark Lands as having failed a JT. It had not.

5. Enterprise and Employment zoning encompasses highly vulnerable uses such as hospitals, schools and childcare.

6. The OPR’s submission on the Clare Draft Development Plan recommended against zoning for “highly vulnerable (Flood Zone A and B) or less vulnerable (Flood Zone A) development, any lands that have not passed the Justification Test”. This shows that the OPR would have had no comment on zoning the Greenpark lands for New Residential had the Executive followed the Members’ instruction by doing a Justification Test in this regard.

7. Likewise, JBA in their SFRA for the Dún Laoghaire Rathdown Draft Development Plan had stated that “it is not appropriate or new highly vulnerable development to be located in Flood Zones A or B other than in those areas deemed to have passed the Development Plan Justification Test”.

339 Emphasis added.

340 Weblink given.

341 Approved 11 July 2022.

I have edited for brevity while preserving meaning.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Importantly, Appendix 3 enclosed Appendix D to the JBA SFRA of 12 March 2022.343 Accordingly, the OPR was sent, as having been submitted by Voyage in support of MA 147:

o The TPA Submission of 3 September 2021.

o Voyage’s motion to zone the MA 147 Lands Residential – including the 10 reasons it listed.

Reason #10 purported to demonstrate that Residential zoning passed the DPJT.

o The RPS Greenpark Masterplan FRA of December 2020.

o The RPS Greenpark SHD FRA of September 2021.

o The Lisney Report of 30 August 2021. Note:

• It will be clear that from this point, in addition to their being in the public domain since March 2022, by Appendix 3 to the CE’s S.31AM(6) notice, the OPR was in possession of all the documents Voyage now cites (in my view erroneously) as demonstrating a DPJT by the Members of Residential zoning of the MA 147 Lands. Notes Some comment on the Members’ Reasons of 17 June 2022 is possible:

• They did not address the Flood Risk Guidelines Sequential Approach as to Avoidance and Substitution, which issues precede the application of the JT. In that context, considering the Impugned Direction and all other things being equal, a rationale that less vulnerable uses could, and so should, be zoned on the Subject Lands in preference to highly vulnerable uses appears to me to be consonant with the Substitution rationale of the Sequential Approach. As has been seen, it specifically advises that, where Avoidance is not possible: “substitute less vulnerable uses”.

• While the SHD permission permitted some homes in Flood Zone A, it primarily related to lands in Flood Zone C. I have explained above why I consider Voyage’s assertion that 60% of the SHD Site was in Flood Zone A does not correctly represent the position as identified by RPS or as presented to the Board by Voyage.

• The assertion, which emanated from Voyage, that the Executive failed to follow the Members’ instruction, is one with which I have expressed some sympathy. However, it contradicts Voyage’s argument that a DPJT is done independently of the type of development envisaged such that, if a DPJT is passed, zoning is permissible for all forms of vulnerable development. It can also be answered by the view that a DPJT was otiose given Avoidance was possible as sufficient lands elsewhere were zoned Residential.

• That Enterprise and Employment zoning itself encompasses highly vulnerable uses such as hospitals, schools and childcare, while a reasonable point, does not per se imply that Residential zoning is acceptable. For example, as between hospitals and residential development issues may arise as to PMJT Criterion 2(v) - the absence of suitable alternative lands. Furthermore and more generally, the true logic could be that neither Residential nor Enterprise and Employment zoning should be applied. Alternatively,

The correspondence trail in this respect was not entirely satisfactorily informative. That said, it does appear to be the case that, as Appendix 3

contained too large body of documents to be attached to an e-mail to OPR, LCCC sent it separately by electronic transfer and it did consist of Appendix

D to the JBA SFRA of 12 March 2023. See Transcript Day 3 pp98 – 103, and the conclusion at 14:28 that Appendix 3 to the letter of 23 June 2022 is the

same as Appendix D to the SSFRA of 12 March 2022.

See above.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event the logic could be that Enterprise and Employment zoning as a general matter is permissible but the acceptability of particular types of Enterprise and Employment remains for consideration in the DMJT. In some contrast, Residential zoning is for a homogenous type of development.345

30 June Voyage wrote to LCCC: 2022 • Asserting that LCCC’s s.31AM(6) Notice to the OPR of 23 June 2022 had failed to fully state the Members’ reasons for adopting MA 147.

• Asserting, in contrast, that the LCCC had set out in full the Members’ reasons for the five other material alterations adopted on 17 June 2022.

• Enclosing the motion of 8 June 2022 to adopt MA147, including the text of the seven reasons stated therein.

• Highlighting on those seven reasons the content which Voyage considered had been wrongly omitted from the LCCC letter to the OPR of 23 June 2022. In particular,346 LCCC had omitted reference to the alleged erroneous interpretation of the MASP as including the Greenpark Lands in the DRSEL and to the SSFRA done by RPS.

• Calling on LCCC to issue another notice to the OPR containing the entire text of those seven reasons.

Notably, Voyage copied the letter to OPR directly to fully inform it of the seven reasons for MA 147.

1 July LCCC replied to Voyage asserting, without elaboration, its satisfaction that its s.31AM(6) Notice to 2022 the OPR of 23 June 2022 had complied with s.12(c) PDA 2000.

Notes

• There is no s.12(c) PDA 2000. The intended reference may have been to s.12(4)347 or to s.12(12)(c)348 PDA 2000. However, these provisions seem beside the point as LCCC’s letter to the OPR of 23 June 2022 was clearly written in compliance with s.31AM(6) PDA 2000. s.31AM(6)

requires that the notice “state reasons for the decision of the planning authority”.

• Despite the error, LCCC’s reply of 1 July 2022 to Voyage must be read as asserting its compliance with s.31AM(6).

• Voyage asserts that neither LCCC nor the OPR took any action on foot of Voyage’s letter of

30 June 2022.349 OPR Report - Internal Technical Assessment

• This report to the Planning Regulator essentially recounts the relevant history and advises, as to the application of the Flood Risk Guidelines to the MA 147 Lands, in terms which prefigure the OPR’s Notice to the Minister of 15 July 2022.350

345 Ignoring the possibility of sub-types – houses and apartments – as all dwellings are deemed by the Flood risk Guidelines to be Highly flood-

vulnerable.

Transcript, Day 1 p 54 et seq.

347 Which deals with Chief Executive’s summaries to the members of submissions to the Planning Authority.

348 s.12(12)(c) “a planning authority shall send a copy of the development plan to the Minister, the Office of the Planning Regulator”.

349 Affidavit of John Keane, sworn 15 April 2024.

p21 et seq.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• It identifies the issue as being whether the MA 147 Lands pass the Justification Test (for Residential zoning)351.

• It asserts, correctly in my view, that:

o Part of the MA 147 Lands: “broadly coinciding with a small part of them that has been identified in the SFRA as being in Flood Zone C (low flood risk)” has an SHD permission from the Board for lands “largely in Flood Zone C”.

o The Board had evaluated the flood risk in light of both the JBA SFRA for the Draft Plan and the RPS SSFRA for the SHD application.

o The reporting officer had also examined the Board’s Inspector’s report, the Board’s decision and supporting file documents and concluded that the SHD Site “would appear to be broadly in Flood Risk Zone C (low risk)”. She referred also to mitigation of the risk of flooding of the access road.

• The report:

o Cites the JBA/LCCC SFRA as applying the PMJT for Enterprise and Employment zoning at Greenpark - stating that the Dock Road had been identified as “a key employment and enterprise location under the MASP” and that the Greenpark lands, in Flood Zones A and B, are essential for employment uses.

o Records the JBA/LCCC SFRA and the OPW (as the national flood defence agency) as considering that the MA 1147 land are unsuitable for residential development.

o Identifies that SFRA’s crucial conclusion and recommendation, despite MA 147, as being that:

“Although not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site, less vulnerable uses (Enterprise and Employment)

with appropriately detailed FRA and emergency plan, may be accommodated”.

• The report recites and analyses the Members’ reasons for passing MA 147. It:

o Accepts that lands at flood risk can be zoned for vulnerable development but “only in very specific circumstances governed by the justification test”.

o Acknowledges the SHD permission - but as to that part of the MA 147 Lands that would not appear to be at serious risk of flooding.

o Asserts that the Members had not stated the grounds of their apparent belief that the LCCC Executive had scope or latitude to make the MA 147 Lands pass the Justification Test (for Residential zoning).352 o Asserts that it is difficult to see how, bar perhaps the SHD Site, the MA 147 Lands could be considered to pass the Justification Test. The objective criteria in Table 4.1 state:

“because of their not being a city centre or edge of centre location and, crucially, there being other locations in the city council area that are at lower or no risk of flooding.”353

351 Not stated but clear from context.

352 Not stated but clear from context.

Emphasis added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event o Concludes accordingly that the Members’ reasons do not address the substance of the OPR recommendation to exclude MA 147.

• The Report:

o Asserts that zoning for housing the lands at risk of flooding would be a significant breach of the Minister’s guidelines, notwithstanding the Members’ reasons.

o Suggests that the OPR recommend a ministerial direction to omit MA 147 from the Development Plan, save as to the SHD Site.

Notes

• Significant breach of the Minister’s (non-mandatory) guidelines would not ordinarily suffice to ground a ministerial direction. However, in this particular instance the respondents argue, and I have found above, that NPO 57 in effect rendered the Flood Risk Guidelines mandatory.

• Counsel for Voyage criticises the views that the MA 147 Lands:

o Could not pass the DPJT as ignoring the Members having passed it by reference to the RPS SSFRA.

▪ Voyage’s difficulty is that RPS never did a DPJT – nor, as I have found can TPA be considered to have done so.

o Are not a city centre or edge of centre location as, by the DPJT, lands adjoining the core qualify.

▪ In my view there is little in this criticism. The DPJT Glossary defines an urban “core” in terms of an urban “centre”354 and any distinction between lands on the edge of a core and lands adjoining a core seems to me excessively fine in interpreting a ministerial guideline given the applicable XJS355 interpretive principles (guidelines are not interpreted as if statutes) – and in particular given that discerning whether lands are on the edge or adjoining a core is an evaluative judgement highly contextualised by local conditions.

• In any event, failure of DPJT Criterion 2(v), identified in the report as “crucial” as to the MA

147 Lands – “there being other locations in the city council area that are at lower or no risk of flooding” (which must be understood as other locations suited to residential development) – is a standalone basis for failure of the DPJT as to Residential zoning. It is also a basis for failure at the Avoidance stage of the Sequential Approach.

• In my view, counsel’s criticisms do not strike home.

11 July The Members approved the minutes of their meeting of 17 June 2022. 2022 • Notably, the approved minutes stated their reasons for adopting MA 147 verbatim in terms of the reasons stated in LCCC’s s.31AM(6) Notice to the OPR of 23 June 2022.

Notes

354 “Core of an urban settlement … The core area of a city, town or village which acts as a centre for a broad range of employment, retail, community,

residential and transport functions.”

355 In re XJS Investments Ltd [1986] IR 750; see more recently and for example Spencer Place Development Company v Dublin City Council [2020] IECA

268; and Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Though it is anachronistic to view the reasons stated in LCCC’s s.31AM(6) Notice to the OPR of 23 June 2022 as reflecting its Members’ minuted reasons for adopting MA 147,356 it can at least be said that, as events transpired, the former correctly anticipated the latter. He was proved right, as it were, in his expression of the Members’ reasons because the members approved that precise expression of them in their minutes.

• As counsel for the Minister observed, the exact formula of words which the Members on

11 July 2022 approved as their reasons for MA 147 had been in the LCCC s.31AM(6) Notice to the OPR of 23 June 2022 and went onwards to the Minister. As he put it, that's what landed on the Minister's desk.357

• I add, that as will be seen, that was not all, that reached the Minister as to their reasons.

15 July The OPR e-mailed Voyage stating that: 2022 • The CE “must inform the OPR and state the reasons for the decision.”

• The OPR could not consider Voyage’s letter of 30 June 2022 as to accept submissions would compromise the independence of the OPR’s evaluation of the Development Plan.

Notes

• While I sympathise with the OPR in this respect, it is necessary to note that this e-mail refers to “the reasons for the decision”, whereas s.31AM(6) PDA 2000 refers to “reasons for the

decision”.358 I return to this observation below.

• I accept the broad point that the OPR could not accept submissions at this point in the process. But as will appear, that cannot be an absolute view.

Voyage e-mailed the OPR in reply:

• Accepting the OPR’s observations; but

• Arguing that the CE’s letter to the OPR359 had been “incomplete/misleading” in that it had failed to provide the OPR with all of the Members’ reasons (for adopting MA 147) such that the OPR’s decision and the Minister’s decision would potentially be “misinformed”.

• Asking that that the OPR give “due consideration to the matter”.

Note: The OPR did not reply.

LCCC REASONS FOR ZONING GREENPARK LANDS RESIDENTIAL & THEIR COMMUNICATION TO OPR & MINISTER

106. It is convenient here to interrupt the chronology to address the Members’ reasons for residentially zoning the Subject Lands. I will not here repeat the law as to the obligation to give reasons for zoning particular lands. It is set out in cases such a s Christian and Killegland.360 As has been seen, the 2010 Plan had zoned much of the Greenpark Lands - the eastern end - for Residential use. Ordinarily, continuation of that zoning in the 2022 Development Plan would have represented a continuation of the status quo. As

The minutes were not approved until 11 July 2022.

357 Transcript Day 2 p155.

358 See further below as to this distinction.

359 i.e. that of 23 June 2022.

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

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Humphreys J observed in Jones361 as to reasons for zoning decisions as to particular lands, where the status quo is:

• Simply maintained, there is in principle no requirement to give further reasons, as the original reasons can be assumed to continue to apply.

• Changed on the basis of the chief executive’s reasoned recommendation, the recommendation supplies the reasons.362

• Changed contrary to the chief executive’s reasoned recommendation, the members must supply reasons.

107. However, the present case discloses a fourth variation on that theme: the Members maintained the zoning status quo as reflected in the prior development plan but did so contrary to the Draft Plan and to the OPR’s and the CE’s reasoned recommendations. On the logic of Jones, in those circumstances the Members had to supply reasons.

108. In my view, remembering that their reasons may suffice though not “neatly packaged” (Killegland), the Members in fact gave reasons for their decision to zone the Subject Lands Residential. The document proposing the motion passed in February 2022 to adopt MA 147 listed 10 reasons for the proposal over seven pages. They clearly represent a detailed argument for the motion and must be considered to have been adopted by the Members. Likewise, the document proposing the motion passed in June 2022 to zone MA 147 Lands New Residential, rejecting the CE recommendation of 10 May 2022 in that regard, which listed seven reasons for so doing, can be considered to state their reasons for that decision – albeit that the Members later adopted minutes containing a shorter version of their reasons. So, I turn to the adequacy of the CE’s conveyance, by its letter of 23 June 2022 to the OPR, of the Members’ reasons for adopting MA 147.

109. First, and as has been said, this letter to the OPR consisted of LCCC’s compliance with s.31AM(6) PDA 2000. S.31AM(6) obliged LCCC, in that letter to the OPR, to “state reasons for the decision of the planning authority” for having made “the plan in such a manner as to be inconsistent with any recommendation made

by the Office”. Oddly, s.31AM(6) omits a definite article – it does not say “the reasons”. I imagine this is

because s.31AM(6) requires that such reasons be notified to the OPR “within 5 working days of the making of a development plan”. While there are, no doubt, good reasons for this urgency, it has an appreciable potential disadvantage. It means that the notification of members’ reasons to the OPR likely precedes those members’ confirmation at their next meeting of the minutes of the meeting at which the development plan was made and thereby precedes their confirmation of their own and official record of their reasons for their

decision. Clearly, the s.31AM(6) Notice to the OPR cannot trammel the Members in their confirmation of their minutes. They may amend the draft proffered by the meeting administrator. Yet the CE may well have to notify the OPR before those minutes are approved.

361 Jones v South Dublin County Council [2024] IEHC 301 §209.

Unless, of course, there is some positive reason to discern that other reasons were operative.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

110. The result is that the statutory scheme creates a potential for difference between, on the one hand, the reasons notified to the OPR and considered by it in its assessment of the members’ decision and of any statutory steps it might take thereafter and, on the other hand, those reasons as later minuted by the members. That did not prove a problem in this case. But the potential for difficulty at least suggests that the OPR may not simply refuse to consider credible evidence that the members’ reasons for their decision in fact differed from those stated in the s.31AM(6) notice. For example, it is difficult to conceive that the OPR could refuse to consider, if proffered to it, the members’ statutorily mandated and confirmed minute if it recorded reasons differing materially from those stated in the s.31AM(6) Notice.

111. As a matter of obvious principle, s.31AM(6) must be read as imposing a duty on the CE fairly, impartially, accurately and in substance completely to notify the OPR of the Members’ actual reasons for their decision – at least insofar as they are apparent to the CE when sending the s.31AM(6) Notice (remembering that the minutes may well not have, by then, been approved). That duty is perhaps particularly applicable where the CE has, as here, opposed the Members’ decision such that their reasons may possibly not be found elsewhere, such as in the CE’s recommendation to them. That duty on the CE does not inhibit proper summary, but the reasons notified must be sufficiently comprehensive to enable the OPR to perform the statutory functions which must be informed by its consideration of those reasons. It is important to add that a s.31AM(6) Notice benefits from the presumption of validity by reference to those requirements and must be read, where reasonably possible, as valid rather than invalid.

112. Schedule 10, §14 of the Local Government Act 2001 prescribes that:

• Minutes of council meetings are “drawn up” by the meeting administrator.363

• They shall contain, inter alia, “particulars of all resolutions passed at the meeting” and “such other matters considered appropriate.”

• They are circulated to each member. Though it is not expressly stated, it is clear in context that they must be circulated in advance of their confirmation.

• They are “submitted for confirmation as an accurate record” to a meeting of the council.

• When confirmed, with or without amendment, the minutes are signed by the person chairing the meeting to which they were submitted for confirmation.

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

113. 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 CFREU364 as to EU law rights, but hardly deniable in domestic law - e.g. Saleem, Murtagh, ETI, O’Lone, and SWI)365, it is clear that:

363 A council employee identified pursuant to s.46 of the Local Government Act 2001.

“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.”

365 Saleem v Minister for Justice, Equality and Law Reform [2011] IEHC 55; Murtagh v Kilrane [2017] IEHC 384 §14 citing Graham v Police Service

Commission [2011] UKPC 46, in turn citing R v Lancashire CC ex parte Huddleston [1986] 2 AER 941; Environmental Trust Ireland v An Bord Pleanála

[2022] IEHC 540 §232; O’Lone v An Bord Pleanála [2023] IEHC 136, Humphreys J, §§41 & 42; SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

a. The word “accurate” encompasses fairness, completeness and impartiality. Minutes must be all of these.

b. That said, minutes are a summary, not a transcript. They are intended to briefly record decisions.

Minutes need not record reasons for decisions - Baile Bhruachlain.366 But they often and usefully do. And when they do they must do so fairly, completely and impartially.

c. Insofar as they do record the reasons for a decision justiciable in judicial review, minutes must conform, to the extent that the decisionmaker did so, to the requirements of the administrative law duty to give reasons for decisions. Without delving into the detail of that duty, broadly, it is to give the main reasons on the main issues relating to a decision such as to enable an interested party to know why the

decision went the way it did and to consider and prosecute appeal or judicial review and to enable the court to determine such appeal or review.

d. The minutes in this case, which explicitly describe the reasons recorded as a “summary”, are not inadequate merely on that account. And the word “summary” necessarily implies that the reasons recorded in the minutes are not exhaustive.

e. While drawn up by the meetings administrator, the draft minutes are subject to correction by and adoption by the members. Presumptively, as counsel for Voyage accepted367 the members are sent the draft minutes for their consideration prior to the meeting at which their approval is to be decided. The members decide whether, and if so what, reasons for a decision are to be recorded in the minutes.368 If they decide to record reasons they are obliged to make a bona fide record of what had in fact been their reasons. But given that members may have had many, varied and disparate reasons for their decision, this can be a minuting process of some difficulty and one as to which the members must have appreciable discretion.

f. As councils’ 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 decision, they constitute a prima facie record of a council’s reasons as stated therein. So, as to their statements of reasons, if any are stated, minutes are in law the official and evidential record of the reasons for the resolution.

g. However, such minutes are not conclusive or exhaustive evidence of those reasons to the exclusion of all other evidence. Minutes can be supplemented and in theory even rebutted.369

All this appears to me to flow from:

• The status of minutes as a statutory summary of the meeting they record – all the more so where they explicitly record, as here, that the recorded reasons are a summary.

• The absence of any attribution of conclusivity in §14 of Schedule 10.

Baile Bhruachlain Teo v Galway County Council [2024] IEHC 604, §117.

367 Transcript day 2 p20/21.

368 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.

Though one would expect the latter to be a very uphill struggle requiring extraordinary facts.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• Shackleton,370 Indian Zoedone,371 Christian372 and Killegland.373

114. To put this issue in context, it is unavoidable that events may prove that the OPR and the court (if judicial review ensues) will discern members’ reasons for their decision differently. But that risk would greatly and undesirably increase if the OPR and the court operated on different rules and on different evidence in discerning those reasons. For example, it would clearly be invidious if the OPR regarded itself as unable even to consider, as informing the identification of the members’ reasons, a document which the court later found relevant to that end. All the more so where the document is the statutorily mandated official and evidentially admissible record of their decision. And, in the absence of statutory prohibition in that regard, and as the discernment of reasons is a matter of law on which the courts have the final say, it is the courts’ rules which must prevail, not merely in court but also within the OPR. That is because, ultimately and in law, a document can have only one meaning.374 While this approach will not guarantee that the OPR and the courts identically identify the reasons for a given decision, any other approach would unacceptably undermine that prospect.

115. In Killegland, the Supreme Court described the rules for identifying the reasons for such decisions. Hogan J, sought to discern the allegedly inadequate reasons given by councillors for their decision, in adopting their development plan, to “dezone” to community infrastructure use, land previously zoned residential – so deciding against the advice of the council’s executive and the OPR. Of some note and in contrast to the present case, a transcript of the meeting was in evidence, in addition to the minutes of the meeting.

116. Hogan J held, citing Christian, that the councillors’ reasons for such a decision must be properly evidenced, justified and clear from the resolution itself or from the documents before the councillors. That said, he recognised that given the deliberative (one might add, collegiate, democratic and political) quality of the decision-making process of adopting a development plan, reasons for such decisions might not be as “neatly packaged and presented” as they would be in other circumstances. Nonetheless, the council was obliged 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.”375

117. Hogan J cited Christian specifically to the effect that, as to zoning particular lands by material amendment to the draft plan against the advice of officials, the members must include their reasons for their decision either directly in the resolution itself or in documents or materials specifically referenced in the resolution. Hogan J seems to have put the position a little more widely than it had been put in Christian. He said that the reasons for such a decision should be clear either from the resolution itself or from the

370 Shackleton on Meetings, 14th Ed’n, §8.07. 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.

Re Indian Zoedone Co (1884) 26 Ch D 70, 53 LJ Ch 468, 32 WR 481, 50 LT 547.

372 Christian v Dublin City Council [2012] IEHC 309, [2012] 2 IR 506.

373 Killegland Estates Ltd v Meath County Council [2023] IESC 39.

374 Speaking compendiously of its meaning.

Citing Finlay CJ in P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701, 720-721.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

documents before the councillors when they discussed making the resolution. Exceptionally, it may suffice to show that the reasons for the decision were well understood. This wider view seems to me apparent in his appreciation of the particular case. He turned to the “question: were reasons given and did they adequately the rationale for that decision?” He replied:

“To my mind, there can be but one answer. It is clear that the councillors proposing this change had on many occasions explained the reasons for their decision. They wanted to preserve the 0.7ha site as the access point from Churchfield to the proposed park, thereby facilitating an access road and servicing a car park to that proposed park. While it is true that these reasons were expressed in different ways and at different times and that there is no single written expression of that view … nevertheless no one could really have been in any doubt as to the reasons given for the de-zoning.”

118. Consistent with this wider view is Hogan J’s citation of Connelly376 to the effect that while “… a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a

decision” (nor need the OPR):

“… it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning.”

Accordingly, Hogan J held that in that case “the reasons were contained in the minutes of the meeting and the motion papers filed in support of the resolution.”

119. What is clear, therefore, is that the minutes of a council’s decision may well, in a given instance, not comprise the entirety of the materials requiring consideration to ascertain the reasons for that decision. First, the minutes once adopted may differ from the reasons earlier notified to the OPR. Second, those minutes may not fully state the members’ reasons. If the court must take such additional materials into account in discerning those reasons, I cannot see how the OPR can refuse to do likewise in discerning that councils’ reasons.

120. It seems to me to follow that while the OPR may be generally correct in its policy of declining to consider submissions at this point in the process - for example as to planning merits or policy compliance - it was incorrect in taking the view that it was prohibited from considering whether it had been given by the CE an adequate account of the reasons for LCCC’s decision, such that no other materials had to be or could be considered. The OPR should have considered, but I find did not consider, the motion paper of 8 June 2022 proffered in Voyage’s letter of 30 June 2022.

Connelly v An Bord Pleanála [2018] IESC 31, [2021] 3 IR 751.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

121. As Killegland makes clear, “the motion papers filed in support of the resolution” and, more generally, “the documents before the councillors when they discussed making the resolution” are to be considered in discerning the Council’s reasons – at least where, as here, the adequacy of the reasons recorded in the minutes are disputed.

122. However, the CE’s s.31AM(6) Notice did not merely state the Council’s reasons in the terms later adopted by LCCC in its minutes. It also, as Appendix 3, enclosed what had been Appendix D to the JBA SFRA of 12 March 2023.377 Thus the OPR had, from the CE’s s.31AM(6) Notice, the very fullest account of Voyage’s reasons for the motion of February 2022 proposing MA 147. In my view, the CE would have been wiser to enclose to the OPR a copy of the motion of 8 June 2022 in circumstances in which, on the evidence before me at least, the Members’ consideration of that motion prior to its adoption had not materially altered those reasons. Indeed, given the relative ease of doing so and even had such a material alteration ensued, it would have been wise to enclose the motion papers in any event and explain any variations from the reasons stated therein.

123. All that said, the real issue in law for me to decide is whether, on a conspectus of the materials before the OPR, it was adequately in possession of the Members’ reasons for the adoption of MA 147. In reality, the reasons listed in the body of the s.31AM(6) Notice of 23 June 2022, in terms which later satisfied the Members who had made the decision (they adopted minutes in identical terms) did, at least in general terms describe the 7 reasons on the June 2022 motion paper. As to any deficit, the OPR had, not merely the two RPS JTs prepared for Voyage, but the lengthy TPA Submission of 3 September 2021 for Voyage and the

10 reasons listed in the motion paper of February 2022 (including the purported DPJT) - all of which prefigured the June 2022 motion.378 It is presumed unless the contrary is shown that the OPR considered what it was sent. Here there is a close analogy with the refusal of Humphreys J in Baile Bhruachlain379 to quash a zoning for alleged inadequacy in the Chief Executive’s summary of landowners’ submissions reporting to the members. He said “the members were not wholly dependent on the summary. They also had access to the full submissions. … The summary is a help but doesn't stop anyone looking into anything if they want to or indeed if their attention is drawn to the issue otherwise than by mere reliance on the summary.”

124. Overall, I do not think it can be said that the OPR, at the point next prior to its recommendation to the Minister of a draft direction was not adequately in possession of the Members’ reasons for the adoption of MA 147 or that Voyage was substantively prejudiced in this regard.

125. So, while the OPR erred in refusing to consider the June 2022 motion paper, I nonetheless and on the facts, reject Voyage’s complaint that it was inadequately apprised of the Members’ reasons.

377 Accordingly, the OPR was sent, as having been submitted by Voyage in support of MA 147: the TPA Submission of 3 September 2021; Voyage’s draft

motion to zone the MA 147 Lands Residential – including the 10 reasons it listed - Reason #10 purported to demonstrate that Residential zoning passed

the justification test; the RPS Greenpark Masterplan FRA of December 2020; the RPS Greenpark SHD FRA of September 2021; the Lisney Report of 30

Aug 2021.

378 Appendix 3 to the s.31AM(6) Notice of 23 June 2022 enclosed Appendix D to the JBA SFRA of 12 March 2022, which includes these documents.

Baile Bhruachlain Teo v Galway County Council [2024] IEHC 604, 70.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

CHRONOLOGY RESUMED – FROM OPR’S S. S.31AM(8) NOTICE - 15 JULY 2022

Date Event

14 & 15 OPR NOTICE RECOMMENDING DRAFT MINISTERIAL DIRECTION - 15 JULY 2022 – S.31AM(8) PDA 2000 July It 2022380 • Recorded that:381 o The OPW had raised flood risk management concerns as to, inter alia, MA 147.

o OPR MA Recommendation #4 had:

▪ been made to ensure consistency of the Development Plan with the NPOs of the NPF in light of the Flood Risk Guidelines; and ▪ required, in effect, the reversal of MA 147, “[h]aving regard to NPO 57 of the NPF, and to provisions of” the Flood Risk Guidelines.

o The CE had recommended to the Members that they comply with Recommendation #4 as to, inter alia, MA 147.

• Stated that the Development Plan:382 o As to MA 147, had not been made consistently with Recommendation #4. The Members had included MA 147, rejecting both Recommendation #4 and the CE’s recommendation to comply with it.

o Thereby failed to set out an overall strategy for the proper planning and sustainable development of the area.

And accordingly a Direction would be merited.

• Stated that the Development Plan statement for the purposes of s.28(1A)(b) and s.28(1B)(b) PDA 2000:383 o Did not include any information to demonstrate that LCCC had formed the opinion that it is not possible to implement the policies and objectives of, inter alia, the Flood Risk Guidelines.

o And provided no reasons for not implementing such policies or objectives.

• Considered the NPF and Flood Risk Guidelines:384 o Recording that NPO 57 seeks to avoid inappropriate development in areas at risk of flooding in accordance with the Flood Risk Guidelines.

o Recording that the Flood Risk Guidelines aim at ensuring a more consistent, rigorous and systematic approach to flood risk identification, assessment and management in the planning system.

The documents were originally sent on 14 July but resent to following correcting a typo irrelevant to these proceedings.

381 See pp2- 9.

382 See pp2 & 8 et seq.

383 See p2 et seq.

See p10 et seq.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event o Summarising the Flood Risk Guidelines as applicable to the MA 147 Lands and to the effect that zoning land at risk of flooding is permissible only in accordance with the Sequential Approach and where:

▪ It is for redevelopment or regeneration of previously developed areas, particularly town and city centres essential for compact growth.

▪ No alternatives exist.385 ▪ Appropriate measures are advanced to address residual flood risk.

▪ The planning authority is satisfied that it can clearly demonstrate on a solid evidence base386 that the zoning will satisfy the PMJT as set out in Box 4.1 of the Flood Risk Guidelines.387

• Recorded the Members’ reasons for adopting MA 147 – in precisely the terms set out in the CE’s s.31AM(6) Notice to the OPR dated 23 June 2022:

• In applying the DPJT to the MA 147 Lands considered that:

o The lands might not be considered as adjoining the core (as defined in the Flood Risk Guidelines) of Limerick, being very much in its south-western environs, and o There would be suitable alternative lands for residential development in areas of lower risk within or adjoining the core.388

• Observed that:389 o The Board’s SHD permission broadly related to Flood Zone C (low risk) lands.

o In any event, the CE Report and OPW Submission record their significant concerns that the area is essentially unsuitable for residential development.

• Asserted:390 o That the Subject Lands are known to be at significant risk of flooding, o Demonstrated failure by the Members to have regard to the Flood Risk Guidelines - including by reason of a failure to meet the Justification Test, such that, other than the SHD Site, zoning the lands Residential “is not consistent with an overall strategy for proper planning and sustainable development in the area.”

• Asserted that:391 o The JBA SFRA had concluded that:

▪ the lands were not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site;

▪ less vulnerable uses (Enterprise and Employment) with appropriately detailed FRA and emergency plan, may be accommodated;

385 Emphasis added.

386 Emphasis added.

As to the content of Box 4.1 see above.

388 p22. Emphasis added.

389 p22.

390 p23.

p23.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event and had maintained this view despite the motion adopting MA 147 and the FRA and Justification Test which had supported it.

• The OPR notes the “supplementary information for this land parcel (reference Greenpark LCC-C62-129) which was included in the updated SFRA published with the Material Alterations to the draft Plan, dated 12th March 2022”.

• Notably the OPR asserts that:

o The Members’ reasons (which it notes) “had not addressed the substantive issue in the OPR recommendation” – the inconsistency of MA 147 with NPO 57.392 o The Members had not stated grounds for their belief that the lands satisfied the Justification Test for residential development.

o The Plan as made is inconsistent with the NPF and the methodologies of statutory guidelines the NPF refers to.393 o The lands had been zoned without passing the Flood Risk Guidelines’ Sequential Approach and plan-making Justification Test.394 o “ … an overall strategy for the proper planning and sustainable development of the area must ensure that flood risk management informs place making by avoiding inappropriate development in areas at risk of Flooding as required by NPO 57 and as per the recommendation of the OPR.”395

• Recommended that a ministerial direction issue in terms of the accompanying draft.

Draft Direction Inter alia, it:

• Envisaged reinstatement of zoning objectives to that of the Draft Plan including “MA no.

147 i.e. the subject land reverts to Enterprise and Employment/Open Space and Recreation from New Residential except in respect of the lands to be developed for housing under ABP SHD reference 311588.”

• Included a statement of reasons (which I will omit here given the reasons set out in the Impugned Direction).

E-mail – OPR to Minister (14 July 2025)

This e-mail:

• Recited that the S.31AM(8) Notice had been sent to the Minister earlier that day

• Attached documents to assist the Minister’s consideration of the matter. The five documents were listed as follows:396 o OPR submission on Draft Development Plan (6 September 2021).397 o S.12(5)(aa) Notice from LCCC (14 March 2022).398

392 Emphasis added.

393 This sentence is at p31 but is contextualised by the text at p24.

394 p24.

p15 – the passage refers to the “ORR” but that is clearly a typo, the correction of which is obvious.

396 I have reordered the list chronologically.

397 Under s.31AM(1)&(2) PDA 2000. This is of no consequence in the proceedings as MA 147 post-dated those recommendations.

398 Pursuant to s.12(5)(aa) PDA 2000. LCCC notified the OPR that it had decided not to comply with certain OPR recommendations as to the Draft Plan.

This is of no consequence in the proceedings as MA 147 post-dated those recommendations.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event o OPR submission to LCCC on Material Alterations to Draft Development Plan (11 April 2022).

o CE Report to the Members on Proposed Amendments to Draft Development Plan (10 May 2022).

o S.31AM(6) Notice Letter from CE to OPR (23 June 2022). S.31AM(8) Notice Note #1:

• I respectfully observe that:

o In administrative law it is generally necessary that the documents placed before a decision-maker to inform his/her decision be clearly, completely and precisely identifiable. Not least, that enables application in judicial review of the relevancy principle: that a decisionmaker must or may (depending on circumstance) consider relevant materials and must not consider irrelevant materials.

o Reliance on separate e-mails or letters to list the enclosures with statutory notices risks a possibility that the notice and the separate e-mail/letter will become physically disassociated and that the former will be read without regard to the latter and, so, to the enclosures.

o Accordingly and as a matter of good administrative practice, statutory notices by the OPR to the Minister should include, on their face, an enclosures list – even if the enclosures will be enclosed under separate cover and even if only to record that there are no enclosures.

• Here, no harm was done as the e-mail listing the enclosures is to hand. S.31AM(8) Notice Note #2:

• Counsel for the OPR, in my view correctly:

o Described the OPR’s view that there would be suitable alternative lands for residential development in areas of lower risk within or adjoining the core as its “key conclusion”.399 o Emphasised the OPR’s reference to the Flood Risk Guidelines’ Sequential Approach as well as to the PMJT.400 S.31AM(8) Notice Note #3:

Finding as to Adequacy of OPR’s Account to Minister of Members’ Reasons for Adopting MA 147 a. The OPR conveyed to the Minister the Members’ reasons for adopting MA 147, in precisely the terms set out in the CE’s s.31AM(6) Notice to the OPR dated 23 June 2022 and, as events had transpired, in precisely the terms minuted by the Members.

b. The “supplementary information” which the OPR “notes” (which, in context, must mean “considered”) in its s.31AM(8) Notice to the Minister is clearly Appendix D to the JBA SFRA of 12 March 2022 – containing all the documents on which Voyage then relied and now relies as demonstrating a DPJT by the Members in February 2022 of Residential Zoning of the MA 147 Lands - including the RPS Greenpark Masterplan FRA of December 2020, the TPA Submission of 3 September 2021, and the

399 Transcript Day 3 p111.

Transcript Day 3 p114.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event February 2022 motion paper to zone the MA 147 Lands Residential – including, in turn, the 10 reasons it listed. Reason #10 purported to demonstrate that Residential zoning passed the DPJT. It is inter alia in this context that the OPR’s noting of the Members’ reasons for adopting MA 147 must be understood – including the Members’ prioritisation of housing.

c. The record in the e-mail of 14 July 2022 of the enclosure by the OPR to the Minister of the S.31AM(6) Notice Letter from CE to OPR of 23 June 2022 is of some significance. It will be remembered that the S.31AM(6) Notice included an Appendix 3, which consisted of Appendix D to the JBA SFRA of 12 March 2022. It included the documents listed just above as proffered by Voyage in support of Residential zoning of the MA 147 lands, The e-mail of 14 July 2022 is not explicit as to the provision to the Minister of the appendices to the S.31AM(6) Notice. However it seems to me that, absent challenge by Voyage in that regard, I must presume that the enclosures listed in that e-mail were enclosed to the Minister in full, including appendices. On that presumption, the documents proffered by Voyage, purporting to demonstrate that Residential zoning passed the DPJT, were before the Minister.

d. While I find in any event that Voyage’s documents purporting to demonstrate that Residential zoning passed the DPJT, did not in fact so demonstrate, I should nonetheless deal with the question of the adequacy of the Minister’s knowledge of the Members’ reasons for adopting MA 147.

e. The OPR did not elaborate on those reasons by reference to the other materials available to it.

However, as I have said, the OPR did enclose:401 o The CE Report on the material alterations dated 10 May 2022 – which had summarised and responded to the TPA Submission of 4 April 2022 supporting MA 147.

o The CE’s s.31AM(6) Notice of 23 June 2022. Absent suggestion to the contrary, I must assume it also enclosed the appendices to that notice – including Appendix 3 which enclosed Voyage’s materials supporting MA 147 and purporting to demonstrate that Residential zoning passed the DPJT.

o The OPR’s Submission dated 11 April 2022 to LCCC on the material alterations.

• On that view, the OPR provided the Minister with an adequate account of the Members’ reasons for adopting MA 147 and I so find.

28 July MINISTER’S NOTICE OF INTENTION TO ISSUE A DIRECTION – 2 JULY 2022 2022 This issued under ss.31(3)&(4) PDA 2000. It:

• Recites the Minister’s opinion, as to the Development Plan, that it:

o (i) fails to implement OPR recommendations made under s.31AM PDA 2000.

o (ii) fails to set out an overall strategy for the proper planning and sustainable development of the area.

o (iii) is inconsistent with national policy objectives specified in the NPF.

E-mail 14 July 2022.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event o (iv) is inconsistent with ministerial guidelines issued under s.28 PDA 2000, to which s.

28(1A)(b) applies.402 o (v) is non-compliant with the PDA 2000.

• Recites his reasons. These are not explicitly attributed to each MA in question. But, as applicable to MA 147, they include assertion of:

o Non-compliance with the PDA 2000 - including s.10(1),403 s.12(18)404 and s.28(1A).405 o Inconsistency with NPO 57 - enhance water quality and resource management406 o Inconsistency with s.28 Guidelines – specifically the Flood Risk Guidelines.

o The validity of the OPR rationale for recommending a Direction.

• Encloses a draft direction accordingly – inter alia, requiring reversal of MA 147. It is in the terms envisaged by the OPR’s draft direction.

• Notes that s.31(4) PDA 2000 deems MA 147 ineffective pro tem.

29 July The 2022 Development Plan took effect save, as here relevant, for MA 147.407 2022

6 to 19 Public consultation on the Draft Ministerial Direction ensued.408 August OPW Submission on Draft Ministerial Direction 2022 • The OPW welcomes the draft as to flood risk management.

402 A planning authority in having regard to the guidelines issued by the Minister under that subsection, shall—(b) append a statement to the draft

development plan and the development plan which shall include the information referred to in subsection (1B).

(1B) The statement which the planning authority shall append to the draft development plan and the development plan under subsection (1A) shall

include information which demonstrates —

(a) how the planning authority has implemented the policies and objectives of the Minister contained in the guidelines when considering their

application to the area or part of the area of the draft development plan and the development plan, or

(b) if applicable, that the planning authority has formed the opinion that it is not possible, because of the nature and characteristics of the area or part

of the area of the development plan, to implement certain policies and objectives in the guidelines and shall give reasons for the forming of the opinion

and why the policies and objectives of the Minister have not been so implemented.

403 “A development plan shall set out an overall strategy for the proper planning and sustainable development of the area of the development plan and

shall consist of a written statement and a plan or plans indicating the development objectives for the area in question.”

404 As relevant, the statutory obligation to ensure that the development plan is consistent with the national development objectives specified in the

National Planning Framework.

405 See footnote above.

406 Emphasis added.

407 S.31(4) PDA 2000.

S.31(7) PDA 2000.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

VOYAGE (TPA) SUBMISSION TO LCCC OPPOSING DRAFT MINISTERIAL DIRECTION – 19 AUGUST 2022

Voyage (TPA) Submission to LCCC opposing Draft Ministerial Direction – 19 August 2022 This Submission, made pursuant to s.31(7) PDA 2000 inter alia and often in trenchant terms:

a. Appends the TPA Submissions of September 2021 on the Draft Plan and of April 2022 supporting MA

147 and invokes them extensively.

b. Asserts that the Flood Risk Guidelines do not propose a blanket ban on all development on lands subject to flood risk designations “which appears to be the interpretation at play”.

o Note – Given that, on any view, the lands are to be zoned for development, this is clearly hyperbolic.

c. Disputes the planning merits of the draft direction and asserts that the MA 147 Lands meet policy requirements for residential use – including the NPF, the LSMASP and requirements for compact, sustainable, urban growth.

d. Asserts that the OPR’s analysis is grounded in a misconception that the MA 147 Lands failed JBA’s PMJT. In fact, it passed both JBA’s and RPS’s JTs such that, by the Flood Risk Guidelines, LCCC may zone the lands for vulnerable uses – which is the purpose of a DPJT.

o Note: this assertion again repeats - here at a late stage in the entire process - the misconception that a JT is performed independently of consideration of any particular type or vulnerability of development.

e. Cites the OPR as asserting that the Flood Risk Guidelines allow development in Flood Zones A and B only of lands “previously developed”, whereas they also allow development of “underutilized” lands.

o Note - Voyage concedes that the OPR also concede that the Greenpark Lands could be categorised as previously developed and underutilized. There is nothing in this point.

f. Invokes the policy of compact urban growth and asserts the “site’s exceptional locational characteristics and the acute shortage of well-located residential development in Limerick City.”

g. Asserts that the OPR erroneously depicts the MA 147 Lands as peripheral to, rather than adjoining, the city centre/urban core – citing in support the Residential zoning in the 2010 Plan.

h. Asserts the OPR’s partial and unsubstantiated application of the DPJT criteria. It asserts that:

o The OPR’s assertions are unsubstantiated that suitable alternative lands not at flood risk exist.

▪ Note: While this is a fair argument as far as it goes, it does not go very far. It does not identify the suitable alternative lands not at flood risk. It must not be forgotten that residential development in Flood Zone A is exceptional to the norm. It was Voyage who bore the onus of satisfaction of the JT in this regard by way of demonstration on solid evidence. Voyage tendered assertion only in that regard.

o Neither LCCC nor JBA have suggested that such alternative lands exist.

▪ Note: This is simply incorrect.409

See below as to CE Report 26 November 2021.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Voyage (TPA) Submission to LCCC opposing Draft Ministerial Direction – 19 August 2022 o The OPR’s assertions are unsubstantiated that the lands are essential for employment uses. The quantum of land the OPR would zone for Enterprise and Employment use is not required (citing the Lisney report)410.

i. Asserts that Voyage provided LCCC with a fully detailed SSFRA for the lands by RPS (highly respected and competent flood experts), including a PMJT, as part of the September 2021 Submission and that the RPS Justification Test passed the Greenpark Lands.411 o Note: This refers to the RPS Masterplan FRA of December 2020. It included a DMJT, not a DPJT/PMJT.

j. Asserts that the OPR’s assertion of “significant concerns” by the Executive and the OPW “that the overall area, which is dependent on these earthen embankments is essentially not suitable for the development type envisaged” disregards Guidelines, the RPS SSFRA and the Board’s assessment of residential development on the lands.

k. Asserts that the principle of ignoring flood defences was applied “in full in the RPS flood risk assessment with adequate mitigation measures proposed and agreed with by An Bord Pleanála as evidenced by the SHD permission”.

o Note: This is clearly irrelevant. The Board’s assessment of residential development related to the SHD lands (housing mostly in Flood Zone C), not to the Subject Lands (entirely in Flood Zone A).

o Note: It is impossible to be precisely sure which RPS SSFRA TPA is citing at certain points. But it is clear that neither the RPS Masterplan SSFRA nor the RPS SHD SSFRA contained a DMJT and the latter did not consider the Subject Lands.

l. Disputes the OPW assertion that Residential zoning of the MA 147 Lands is inconsistent with NPO

57. NPO 57 allows Residential zoning where the DPJT is passed.

m. Asserts that the draft direction, in asserting inadequate explanation by the Members for their adoption of MA 147, discloses that the OPR did not adequately consider the Members’ reasons, Voyage’s submissions of September 2021 and the SHD permission as allegedly representing the Board’s acceptance of the suitability of the MA 147 Lands for Residential use.

o Note: again, the submission misapplies the logic of the SHD permission.

n. Asserts that the Board’s SHD permission “fully accepts that the Greenpark lands are an appropriate location in principle for higher density residential development, notwithstanding the flood designations that apply to the site.” Notes on TPA/Voyage Submission opposing Draft Ministerial Direction – 19 August 2022

410 September 2021.

p5 – “the landowner provided the Planning Authority with a fully detailed Site Specific Food Risk Assessment (SSFRA) for the lands prepared by RPS

(highly respected and competent flood experts) including a Plan-making Justification Test and all necessary mitigation measures as part of the

September 2021 Submission. The September 2021 Submission, p13, states: ”there is only a need to comply with the Development Management

Justification Test as part of this application.” p14 of the September 2021 Submission states: “the use of the Development Management Justification

Test is similarly correct in relation to the FRA for the SHD Site at Greenpark.”

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Voyage (TPA) Submission to LCCC opposing Draft Ministerial Direction – 19 August 2022

• The Minister points out, and Voyage accepts,412 that this submission does not criticise the conveyance to the OPR or to the Minister of the reasons for the Members’ decision – of a diluted version of those reasons. It did not repeat Voyage’s complaint in that regard made by its letter to the LCCC and OPR of

30 June 2022 despite LCCC’s rejection of the substance that complaint by letter of 1 July 2022 and the OPR’s refusal (by letter 15 July 2022) to consider it as a letter written outside the statutory process. Counsel for the State points out that these rejections must have conveyed to Voyage that it should raise the issue when it had opportunity within the statutory process. Rhetorically, counsel observes that the iterative process helps people to help themselves and asks: “… if you have a grievance and you fail to raise it, one has to ask the question: is it a grievance any more?” I agree that if in truth Voyage had a real complaint that the Members’ reasons for adopting MA 147 had not been adequately conveyed to the Minister to inform his decision as to making the Impugned Direction this submission of 19 August 2022, the content of which was to be conveyed to the Minister, was an obvious opportunity to pursue it and it was not pursued on that occasion. Indeed, counsel makes the fair point that nothing had prevented Voyage from complaining to Members of LCCC’s response of 1 July 2022 with a view to ensuring that the minutes approved on 11 July 2022 adequately (in Voyage’s view) recorded the Members’ reasons for approving MA 147.413

• TPA correctly asserts that the Flood Risk Guidelines do not propose a blanket ban on all development on lands at flood risk. But that is a straw man assertion – defeating a proposition the OPR never made. Indeed the OPR is later cited as accepting at least the possibility of zoning such lands.

• Notably, TPA does not engage in any real way with the Sequential Approach stipulations that:

o Residential development (highly vulnerable) of lands in Flood Zone A is to be avoided and, where allowed, “exceptional”.

o Prior to application of the Justification Test, less vulnerable uses be “substituted” for highly vulnerable uses.

TPA also persists in its erroneous attempt to divorce justification tests from the type and floodvulnerability of the form of development envisaged.

• It was clearly open to the Minister to reject the assertion that the SHD permission represented the Board’s acceptance of the suitability of the MA 147 Lands for Residential use. Indeed, on the facts, such rejection was all but inevitable. It is difficult to see how TPA can have imagined that its invocation of the Board’s SHD permission as in principle accepting residential development of the Greenpark Lands would be accepted. The SHD permission related almost entirely to almost the entire of the, relatively small, Flood Zone C part of the Greenpark Lands. While that permission overlapped the MA 147 Lands in some degree, considerably the larger part of that site on which housing was to be placed was not in the MA 147 Lands and was in Flood Zone C. In contrast, the MA 147 Lands are very primarily in Flood Zones A & B. And the Subject Lands are entirely so. That the SHD permission implicitly validated residential development of the remaining Greenpark Lands is a manifest non-sequitur.

• TPA’s assertion that RPS had, in September 2021, provided a PMJT for the MA 147 Lands which they had passed is wrong. RPS in September 2021, provided a DMJT not a PMJT. It related to the SHD Site (most

412 Transcript Day 3 p169.

Generally, these issues are canvassed in Transcript Day 2 pp129, 131, 156 – 162 and 170 – 179.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Voyage (TPA) Submission to LCCC opposing Draft Ministerial Direction – 19 August 2022 of which is in Food Zone C) and not to by far the greater part of the MA 147 Lands and specifically not to the Subject Lands.

• The assertion that neither LCCC nor JBA have suggested that alternative lands exist is also wrong.

The CE Draft Plan Report of 26 November 2021 explicitly records that the Draft Plan had zoned sufficient other Residential lands to meet core strategy requirements in areas not at risk of flooding and suitable for highly vulnerable uses in accordance with the Flood Risk Guidelines’ sequential approach.

CHRONOLOGY RESUMED – FROM 7 SEPTEMBER 2022

Date Event

7 Sept. CE Report to Members, OPR & Minister - 7 Sept. 2022 - on submissions on Draft Ministerial 2022 Direction.

s.31(8)&(9) PDA 2000

By s.31(9) PDA 2000 the purpose of this report was, inter alia, to:

• Summarise the submissions of members of the public.

• Summarise the views of and recommendations (if any) made by the Members.

• Recommend not whether, but how best, to effect the draft direction.

The report:

• Summarized the TPA Submission of 19 August 2022 on the draft direction and provided links to official summaries of the two previous TPA Submissions in the public consultations on the Draft Plan and the material alterations.

• Stated the CE’s recommendation that the draft direction, as it bore on MA 147, issue as drafted and it recommended various consequential amendments.414 It did not elaborate on the merits of or reasons for the draft direction as it bore on MA 147.

28 OPR NOTICE TO MINISTER RECOMMENDING DIRECTION - S.31AN(4) PDA 2000 - 28 SEPTEMBER 2022 Sept. • The proposed direction is, as to MA 147, in terms of: 2022 o The OPR’s draft direction of 15 July 2022.

o The Impugned Direction recorded below.

• The OPR notes415 TPA/Voyage’s submissions on MA 147, including that:

o The Greenpark Lands have not failed any Justification Test.

o A Flood Risk Assessment submitted to LCCC passed the Justification Test.

o Enterprise & Employment zoning allows uses deemed highly vulnerable by the Flood Risk Guidelines.

o An Bord Pleanála had granted permission for residential development on these lands.

414 These largely relate to necessary changes to maps and tables and the like and are not significance to these proceedings.

Notice p13.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• The OPR again notes,416 as it had done in its s.31AM(8) Notice, that notes Voyage’s “supplementary information” which had been included in the JBA SFRA of 12 March 2022 (i.e.

“Appendix D”417 – which included the documents on which Voyage now relies as showing that the Members in February 2022 had done a DPJT for Residential use of the MA 147 lands).

• The OPR repeats its previous consideration thereof and response thereto.418 It states that in its s.31AM8 Notice, in recommending a ministerial direction, the OPR had carefully considered:

o The issue of what, by the Flood Risk Guidelines, local authorities should do when considering land use zoning objectives in areas at risk of flooding.

o Voyage’s submissions – which were similar to those it had raised in response to the s.31AM8 Notice,419 and the OPR now adopts, in response to Voyage’s submissions, the same rationale as set out in the 31AM(8) Notice.420

• In particular, the OPR states that: 421 o There is “no evidence provided to demonstrate that the Core Strategy of the Development Plan has not sufficiently provided suitable lands for residential use that will provide for the sustainable growth of Limerick City and environs.”

o The “substantive issue” in its recommendation to omit MA 147, which the Members’ reasons had failed to address, was that it is “inconsistent with NPO 57, which requires the avoidance of inappropriate development in areas at risk of flooding in accordance with the Flood Guidelines.” And in the OPR’s opinion: “no adequate reasons have been provided to justify a divergence from the requirements in NPO 57.”

o “the rationale for its recommendation” is consistency “with NPO 57 which requires the avoidance of inappropriate development in area at risk of flooding in accordance with the Flood Guidelines”.422 E-mail – OPR to Minister This e-mail enclosed the s.31AN(4) Notice and the Ministerial Direction proposed by the OPR. It listed further enclosures as follows:

• An updated/corrected copy of the CE’s s31(8) and e-mail as to the correction.

• A copy of a Members’ submission to the OPR pursuant to s.31(10)(a) PDA 2000.423 Notes – Importance of S.31AN(4) Notice

416 p15.

417 Transcript Day 3 p120.

418 In its 31AM (8) Notice of 15 July 2022.

419 In submissions to the Chief Executive and as summarised in the CE’s Report of 7 September 2022.

pp4 & 13.

421 p16. Emphases below added.

422 p15.

423 i.e. a submission by a Member to the OPR. By s.31(10)(b) the Member would have already copied it to the Minister. The submission in question is

not relevant to these proceedings.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• As to the use of enclosure lists on the faces of statutory notices, I refer to my observations above as to the OPR’s s.31AM(8) Notice.

• If nothing else, the OPR, by this Notice:

o Conveyed to the Minister TPA/Voyage’s assertion that the MA 147 lands had passed the DPJT for residential use.

o Correctly identified inconsistency with NPO 57, (which requires accordance with the Flood Risk Guidelines) as the “substantive issue” in its recommendation to omit MA 147.

• With, in my view, considerable reason, counsel for the OPR describes the assertion of no demonstration by Voyage of inadequacy of suitable lands for Residential use (which can only mean adequacy of residentially zoned lands excluding the MA 147 Lands) as, ultimately, the core conclusion424 of the s.31AN(4) Notice. He says, “[u]ltimately the office decided there was enough land zoned and it wasn't appropriate therefore to zone these lands.”425 I agree. This observation correctly reflects the exceptionality of residential development in Flood Zones A and B and correctly attributes to Voyage the burden imposed by the Flood Risk Guidelines of demonstration on solid evidence that the exception applies. As I put the OPR’s reasoning at trial: “[t]here's just ample Residential zoning elsewhere and that's the end of the matter”.426

• That conclusion is, by reference to the Sequential Approach of the Flood Risk Guidelines (both the Avoidance element and DPJT §2(v)), fatal to Residential zoning of the Subject Lands.

18 OPW Submission on Draft Direction - 18 October 2022 Oct. • The OPW observed that a “core objective” of the Flood Risk Guidelines “is to avoid 2022 inappropriate development in areas at risk of flooding” and therefore supported the draft direction, including the reasoning in its Statement of Reasons.

Note – Opportunity for Elected Members to make Submissions to the Minister.

• As has been seen, Voyage impugns the conveyance by the CE to the OPR by s.31AM(6)

Notice of 23 June 2022 and, by implication the onward conveyance by the OPR to the Minister, of the Members’ reasons for adopting MA 147 at their meeting of 17 June 2022 – with particular reference to Reason 10 of the motion paper which had resulted in the Members’ first adoption of MA 147 in February 2022. Reason 10 had asserted (erroneously in my view for reason explained elsewhere in this judgment) that the MA 147 Lands has passed the DPJT for residential zoning. It will be recollected that the reasons the CE conveyed to the OPR were verbatim those later adopted by the Members on 11 July 2022 in their minutes.

• As observed earlier, the TPA/Voyage Submission to the OPR of 19 August 2022, opposing the draft direction, had not objected that the Minister was ignorant of Reason 10 and the of Voyage’s assertion that, by adoption of MA 147, the Members had themselves done a DPJT of Residential zoning of the MA 147 Lands and deemed it passed.

424 Transcript Day 3 p122.

425 Transcript Day 3 p121.

Transcript Day 3 p122

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• The respondents draw attention to the fact that no Member at this point in the process availed of their statutory opportunity to make that same objection to:

o The CE for onward transmission by the CE’s report to the OPR and the Minister.427 o The OPR - the Member being required (and so, entitled) to send a copy thereof directly to the Minister. 428

• Even assuming a probability that Voyage could have successfully canvassed the Members to raise such objections, the fact remains that a decision that a Member would do so remained outside Voyage’s power. That decision remained the Members’ alone. I am inclined to give some, but far from decisive, weight to the respondents’ submission in this regard. I am more impressed by the fact that the TPA/Voyage Submission to the OPR of 19 August 2022 did not raise the objection.

4 Nov. IMPUGNED MINISTERIAL DIRECTION TO LCCC - 4 NOVEMBER 2022 - S.31 PDA 2000429 2022

• As recited earlier in this judgment, LCCC is directed, inter alia, to re-instate the following zoning objectives to that of the Draft Plan:

(iv) MA 147 - i.e. the subject land reverts to Enterprise and Employment/Open Space and Recreation from New Residential except in respect of the lands to be developed under ABP SHD permission 311588.

• The Reasons set out in the Direction are also recited earlier in this judgment.

Minister’s Letter to LCCC – enclosing Direction

• Note: As requested by Voyage, I have considered this letter. I do not see that it affects my view.

20 RPS EXPERT LITIGATION REPORT – DECEMBER 2022430 Dec. 2022 • This report was prepared for litigation purposes. It records that RPS had prepared 3 sitespecific flood risk assessments for Voyage’s:

o Greenpark Lands Masterplan. This is the RPS document dated December 2020.431 The report confirms that the JT RPS did in 2020 was a DMJT not a DPJT.

o SHD planning application. This is the RPS document dated September 2021.432 The RPS JT of 2021 was a DMJT not a DPJT.

o Nursing home planning application.433

427 Ss.31(8)&(9) PDA 2000.

428 S.31(10) PDA 2000.

429 What follows is edited and paraphrased without changing meaning.

Exhibit JK1 Tab 6 to the Affidavit of John Keane, sworn 20 December 2022 for Voyage. The content of the report is verified by the Affidavit of its

Author, Andrew Jackson of RPS, sworn 25 January 2023 for Voyage.

431 See chronology entry above.

432 See chronology entry above.

The nursing home planning application, in the very south-eastern corner of the Greenpark Lands, is not relevant for present purposes.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• RPS reviewed JBA’s June 2021 SFRA of the Draft Plan.434 It considered that JBA failed to apply, as to the prospect pf Enterprise and Employment Zoning, the DPJT requirement435 “which demonstrates that flood risk to the development can be adequately managed and the use or development of the lands will not cause unacceptable adverse impacts elsewhere." Essentially, it considers that JBA’s:

o “high-level indication of what mitigation measures might be possible at planning application stage” does not provide the demonstration required of the DPJT. JBA failed to quantify the risk to the Greenpark Lands, including by breach of the OPW defences, and to develop suitable measures in sufficient detail to address it. That would have required modelling, which JBA did not do.

o DPJT provides no evidence of any attempt to ascertain (the risk of)436 impacts elsewhere.

• “Having reviewed the other passed DPJTs … by JBA … as part of the SFRA for either highly vulnerable or less vulnerable uses”, similar observations are made.

o I observe that this unfortunately non-specific reference refers to JBA’s DPJTs of November 2021 and March 2022. The latter considered, inter alia, MA 147 – though not to RPS’s satisfaction.

• RPS cites its application of PMJT Criterion §3437 to lands in Flood Zones A and B, in its SFRA of the Letterkenny Local Area Plan 2023, as representing the correct approach. It asserts that:

“[t]he outcome of the overall assessment outlined above was for certain sites development for both highly and less vulnerable uses was ruled out which was then zoned for a less vulnerable or water compatible use.”

Notes

• The observation that this RPS report was prepared for litigation purposes is no criticism. Nor does it mean the report is irrelevant for present purposes. But it does mean that it was not before the LCCC, the OPR or the Minister in the statutory process and could not have informed their decisions.

• I confess to not understanding the sentence above as to the outcome of the Letterkenny PMJT

– at least as it relates to less vulnerable uses – which appear to have been both “ruled out” and zoned for. However I do not see that reference to this PMJT weighs much in the case.

• That said, and as RPS’s criticisms relate to JBA’s application of DPJT Criterion §3, requiring demonstration that flood risk can be adequately managed and will not cause unacceptable adverse impacts elsewhere, to Enterprise and Employment zoning of the Subject Lands, those criticisms appear to me to have considerable force. If I may mix my metaphors, it seems to me that, rather than bite the bullet as required in a DPJT, JBA kicked the can down the road to a future DMJT.438

See chronology entry above.

435 Set out in Box 4.1 §3 of the Flood Risk Guidelines.

436 I have added these works. They clearly convey the sense of the RPS criticism.

437 Set out in Box 4.1 §3 of the Flood Risk Guidelines.

Voyage complained in this regard – Transcript Day 1 p103 et seq.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Date Event

• Conspicuously, RPS does not assert, in this report, in the affidavit verifying it, or elsewhere, that:

o TPA were correct in their repeated assertion that a DPJT is agnostic as to the type and flood vulnerability of proposed development.

o At any point RPS had done a DPJT of the MA 147 Lands (which include the Subject Lands) or, specifically, a DPJT for Residential zoning of those lands.

o Any of the work it did do equates to, or allows of any conclusion as to what the outcome is or would be of, a DPJT for Residential zoning of the MA 147 lands.

o The MA 147 lands have passed, or would pass, a DPJT for Residential zoning or that Voyage and/or TPA were correct in so asserting.

• Given the significance of those issues for this case I have no doubt that these absences were deliberate on the part of RPS and represents its exercise of proper professional judgement.

21 December 2022 These proceedings issued.

20 February 2023 Leave to seek judicial review was granted.

RESIDENTIAL DPJT - CONFUSION AS TO WHAT RPS DID

126. I have addressed this issue earlier but in view of its importance it is as well to return to it in light of the chronology above. As can be discerned from the chronology, the position as to JTs done is not as clear as Voyage’s submissions in the process assert. They repeatedly assert that a DPJT by RPS, applicable to the MA

147 Lands, upheld their residential use. Yet, as has been noted above, while RPS swore an affidavit in the proceedings, it conspicuously did not verify this assertion.

127. While perhaps not fully conceding the importance of the issue, counsel for Voyage acknowledged that a question arose whether RPS had done a DPJT/PMJT or a DMJT.439 In fact, as has been seen, RPS did two JTs – in December 2020 as to the Greenpark Masterplan and in September 2021 as to the SHD proposal. Both were DMJTs, not DPJTs. The latter encompassed only those parts of the MA 147 Lands as were included in the SHD Site. It did not include the Subject Lands, to which the Minister’s Direction applied.

128. The December 2020 Masterplan DMJT by RPS did include all of the MA 147 Lands, including the Subject Lands. But the FRA in which it was done asserted440 (incorrectly, it transpired) that a DPJT was unnecessary as the 2010 Development Plan had already applied the Flood Risk Guidelines in zoning the lands Mixed-Use and Residential. The assumption, fair as a starting point, is that a DPJT had been done in that

439 Transcript Day 3 p174.

§6.2.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

process so only a DMJT, applying the Sequential Approach, was required for the types of development proposed.441 As has been seen, “Box 5.1” of the Flood Risk Guidelines, which RPS applied, describes the DMJT. The criteria for a DMJT include that the lands have already been zoned for the type of development proposed. This implies that the lands will have already passed a DPJT for that type of development. This was the assumption – reasonable but erroneous – as applied to the Residential zoning in the 2010 Plan, on which RPS decided not to do a DPJT of Voyage’s Masterplan.442 As counsel for the OPR correctly observed of the December 2020 Masterplan FRA by RPS: “[t]hat kills any possibility of this document being a Development Plan Justification Test. They didn't do a Development Plan Justification Test”.443

129. For the avoidance of doubt, the assertion by RPS that Voyage’s Masterplan “complies with the requirements of the Development Plan Justification Test” 444 is erroneous. The text is a little unclear as to the basis for that assertion, but if based on:

• RPS’s recorded presumption that a DPJT had informed the zoning of the Greenpark lands in the 2010 Plan, it is erroneous as no DPJT had in fact been done in support of that zoning.

• Satisfaction of the “criteria in Box 5.1”, it is erroneous as Box 5.1 describes the DMJT, not the DPJT and its criteria in effect require a prior DPJT, which was not done. The view that the assertion is erroneous is consistent with RPS’s assertion that only the DMJT need be applied.

130. As has been seen, Voyage also deposes445 that it “only finally became aware” in December 2021, when LCCC so admitted in the SHD process before the Board, that no DPJT had been done in making the 2010 Plan. This averment is unfortunate. It obfuscates - not least by the word “finally” - rather than give a straightforward account of Voyage’s degree of awareness over time, and when they were on inquiry or notice of a substantial question, as to whether the premise of the RPS JT of December 2020 was correct in fact, such that a DMJT of the Masterplan sufficed and a DPJT was unnecessary. RPS’s presumption of a DPJT informing the 2010 Plan was not an unreasonable starting point. But one would presume that the absence of a record of a DPJT in the 2010 Plan FRA would at least put a landowner doing a Masterplan FRA on inquiry whether a DPJT had in fact been done and in what terms. At least some prudent curiosity is expected. Further, even after “finally” ascertaining in December 2021 that no DPJT had been done in the 2010 Development Plan, such that the premise of its December 2020 JT had been undermined, Voyage continued, without elaboration or clarification, to assert reliance on the December 2020 DMJT as bearing on the issue of DPJT of the MA 147 Lands. Yet MA 147 was first proposed only in February 2022 – by which time Voyage was already, on its own account, “finally” aware that no DPJT of the MA 147 Lands had been done for the 2010 Development Plan or by RPS. Affidavits should be straightforward not coy - Renehan, Jet2.com and Stapleton.446 The averment is unimpressive.

441 At p32, the following text appears: “Table 6.1 sets out the response to the criteria in Box 5.1 that must be satisfied. Each of the criteria have been

shown to be satisfied and therefore it is concluded that the proposed development complies with the requirements of the Development Plan

Justification Test.” However, in context it is clear that the reference to the Development Management Justification Test. Not least, Box 5.1 of the Flood

Risk guidelines, states the criteria for the Development Management Justification Test.

442 Masterplan FRA 18 December 2018, §6.2.

443 Transcript Day 3 p82.

Masterplan FRA 18 December 2018, §6.2. An assertion repeated by TPA Consultants submission for Voyage, dated 3 September 2021, on the Draft

Plan.

445 Affidavit of John Gannon of TPA, sworn 21 December 2022.

446 Renehan v T & S Taverns [2015] 3 IR 149, Supreme Court; R (Jet2.com Ltd) v Civil Aviation Authority [2018] EWHC 3364 (Admin); Stapleton v ABP &

Savona [2024] IEHC 3.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

131. I assume that both RPS JTs remained relevant to the issues before LCCC, the OPR and the Minister as to the zoning of the MA 147 Lands, including the Subject Lands. That said and in short, RPS never did a DPJT

– whether of the MA 147 Lands, the Subject Lands or the Greenpark Lands generally. As I have already noted, RPS has confirmed this to be so – if only by properly omitting any assertion to the contrary from their affidavit.

CE DRAFT PLAN REPORT, 26 NOVEMBER 2021 – ALTERNATIVE RESIDENTIAL LANDS ZONED

132. As has been seen, Criterion §2(v) of the DPJT447 is that “[t]here are no suitable alternative lands for the particular use or development type, in areas at lower risk of flooding within or adjoining the core of the

urban settlement.” This criterion, if not met, results in failure of a DPJT. If it is not satisfied, it is pointless to

proceed with the remainder of a DPJT as to the particular use or development type in question. If suitable alternative lands are available the conclusion must be that the DPJT is not satisfied. Indeed, properly, the lands will not have got past the Avoidance stage of the sequence and won’t even have got to DPJT.

133. In that light, the CE Draft Plan Report of 26 November 2021 assumes some importance. As has been seen, it states:

“Part 2 of the Justification Test requires the Local Authority to consider a number of factors, including whether the site is located within the core, or if there are suitable alternative lands, for the particular use or development type, in areas at lower risk of flooding, within or adjoining the core of the urban settlement. The Draft Plan has zoned sufficient alternative residential lands to meet the requirements of the Core Strategy, in areas that are not at risk of flooding and suitable for the provision of highly vulnerable uses in accordance with the sequential approach of the Guidelines. The Justification Test does not pass, it is recommended that these lands are not included for New Residential zoning.”448

In my view, reading it, reasonably, as valid rather than invalid, this passage demonstrates inevitable failure of Criterion 2(v)449 of the DPJT as to Residential zoning.

134. This record asserts, in effect and clearly, that as alternative lands are available to meet core strategy requirements the Greenpark Lands fail, as to Residential use zoning, both the Avoidance test of the Sequential Approach and Criterion 2(v) of the DPJT. On that basis, the assertion that those lands fail a DPJT as to Residential use must be correct without the need to take a DPJT any further in that regard. Further pursuit of a DPJT as to Residential use would be pointless.

447 Flood Risk Guidelines Box 4.1.

448 p178. Emphasis added.

449 “There are no suitable alternative lands for the particular use or development type, in areas at lower risk of flooding within or adjoining the core of

the urban settlement.”

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

ENTERPRISE & EMPLOYMENT - ARE GREENPARK LANDS IN DRSEL?

135. Whether the DRSEL includes the Greenpark Lands is arguably relevant to the zoning of the Greenpark Lands for Enterprise and Employment uses. Ultimately, as I have found, the zoning of the Subject Lands for Enterprise and Employment uses is not really the point of this case. The Minister’s countermanding of Residential zoning is the point. But as there was much dispute450 in the statutory processes and at trial (Voyage says it is “fundamental” to its case)451 as to whether the LSMASP, which forms part of the RSES, identified the Greenpark Lands as within the DRSEL, I think I should deal with the point.

RSES/LSMASP

136. Though it describes itself as “a 12-year strategic regional development framework”, the RSES is yet another regrettably undated public document – at least apparently. It ought to be, but is not, readily apparent on reading it when it was adopted and when the 12 years starts and ends.452 I understand that it

issued in early 2020. It contains the LSMASP.453 §8.4 “Employment Distribution” says that “Table 3 lists some

of the main employment centres” and that “[t]he proposed development of the Dock Road provides significant potential” for employment growth. I note the word “some” as indicating a non-exhaustive list of “main employment centres”, though I accept it as exhaustive of “Strategic Employment Locations” formally designated by the LSMASP. Table 3 includes the following:

Name/Type Employment Strategic Employment Locations - Description Capacity Numbers/ Status Dock Road In The Limerick Docklands Framework Strategy (“LDFS”) aims to grow 113.2 development existing commercial activity at SFPC’s 23-hectare Ted Russell Docks, hectares and also provides for the major development of non-core activities along a further 49 acre site.

137. The following observations may be made of the RSES/LSMASP:

a. The LSMASP contains no map of the DRSEL. No LSMASP map sheds useful light. The RSES does contain a map454 which identifies the general location of the DRSEL. But, all agree, the

See for example the TPA Submission of 3 September 2021 p51, infra.

451 Transcript, Day 1 pp14, 15 & 31.

452 I do not rule out the possibility that the period can be identified somewhere in the document. My point is that it should be obvious.

453 Introduced at p42 and set out in full at p270.

p42.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

map clearly puts the DRSEL in the wrong place – indeed on the wrong side of the city centre.455

b. While adding 23 hectares to 49 acres is inconvenient, the greater inconvenience is that it adds up to 42.83 hectares, not 113.2 hectares. 23 hectares plus 49 acres adds up to almost

106 acres. Assuming that all references to hectares should be to ‘acres’ or vice versa does not much assist.456 The quantified areas can’t be correlated to the areas stated in the 2018 Docklands Strategy.457 On any view, the LSMASP figures are wrong.

c. The Ted Russell Docks are on the other side of the Dock Road and the “further 49-acre site”

cannot comprise the Greenpark Lands, which comprise at least 47 hectares or 116 acres.

d. The text under “description” in Table 3 does read as stating that the LDFS aims both to grow activity at the docks and to provide for development of the 49-acre site. In other words, the entire locational description of the DRSEL is in terms of lands included in the LDFS.

e. The LDFS is a private document prepared by Shannon Foynes Port Company (“SFPC”) in February 2018. As relevant, it is concerned only with the SFPC “Port Estate” on the southern shore of the Shannon, north of the Dock Road, of which maps are provided.458 It is recorded as comprising 45.5 hectares (112.4 acres – at least numerically close to the 113.2 figure seen in Table 3, though the latter was in hectares not acres). It consists of:

• The operational Ted Russell Docks of 14.7 hectares (not 23 hectares as stated in the MASP).

• Surplus, non-core, commercially developable lands of 30.8 hectares (not 49 acres/19.8 hectares).

It would be at least non-surprising if the DRSEL coincided with the Port Estate.

f. Neither the LSMASP nor the LDFS mentions the Greenpark Lands by name as included in the DRSEL – either as an employment location or as a residential location – though the LSMASP does identify residential locations.459 The Greenpark Lands amount to at least 47 hectares460 and so exceed in size the SFPC lands which are identified by name in both documents. It would be at least strange not to specifically mention them if, indeed, the Greenpark Lands were included in the DRSEL.

g. Adding the total Port Estate of 45.5 hectares recorded in the LDFS to the 47 hectares owned by Voyage yields 92.5 hectares. On that view it is possible that the Port Estate and the Greenpark Lands together comprise the DRSEL identified in the MASP – but it is no more than a possibility.

455 Transcript, Day 1 p86 et seq.

23+49=72≠113.

457 Possibly disposals or acquisitions in the 2-year interim would assist explanation but I had no evidence in that regard.

458 Figures 1, 2, 3 & 4.

459 §7.1 Housing and Regeneration in the MASP.

I am not clear that Voyage bought the entire of the racecourse lands.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

h. However, 45.5 hectares equals 112.4 acres and 113.3 acres equals 45.8 hectares. As TPA point out,461 this suggests that the entire of the DRSEL identified in the MASP consists in the Port Estate which lies north of the Dock Road and does not include the Greenpark Lands.

138. All this is undoubtedly confusing and unsatisfactory in a statutory and public document such as an RSES. The possibility of confusing acres with hectares is so well-known that it should always be checked.462 If nothing else, it all demonstrates that clear maps can help a lot in such documents.

LCCC’S POSITION

139. The resulting, surprising and regrettable lack of clarity in the foregoing – in particular whether the Greenpark Lands were included in the DRSEL – was, equally surprisingly, not clarified by LCCC in its statement of opposition or on affidavit or, ultimately, at trial.463 LCCC's statement of opposition:

• At §44, denies that RSES/LSMASP “wrongly identified the Greenpark Lands as a Strategic Employment Location for the purpose of the MASP.”

• At §50, states that:

o In the PMJT in each SFRA by JBA, LCCC had noted that the LSMASP had identified “Dock Road … as key enterprise and employment location”.

o The Greenpark Lands were not mistakenly identified as part of the Dock Road.

140. As discussion at the trial revealed, §44 of that opposition statement was embarrassing and in breach of the rules of pleading as it was unclear whether LCCC:

• Denied that it had identified the Greenpark Lands as a strategic employment location for the purpose of the MASP.

• Admitted that it had identified the Greenpark Lands as a strategic employment location for the purpose of the MASP but denied that it was wrong to do so.

However, in my view §50, though in itself unclear, is to be read in the context of the text of the RSES/ LSMASP as a positive plea that the Greenpark Lands, as part of the Dock Road, were within the DRSEL.

141. At trial I asked LCCC to clarify its position – if only on the basis of instructions. The response was as follows:

• Other than the documents identified above, there is no ‘paper trail’ on the question whether the Greenpark Lands are within the DRSEL.

461 Submission 4/4/22 below.

462 Nonetheless, I confess to hoping that this observation does not prove a hostage to fortune!

Transcript Day 1 p86 to 96.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• In preparing the Draft Plan, and though it is not explicit in the Draft Plan, LCCC took the Greenpark Lands to be included in the DRSEL. It seems reasonable to infer that this was considered congruent with the Enterprise and Employment zoning recommended in that Draft Plan.

• In preparing its SFRAs and JTs for LCCC, JBA, though consulting engineers to LCCC, took the directly opposite position to that which their clients had taken in preparing the Draft Plan. JBA took the Greenpark Lands as not being in the DRSEL. It follows that JBA’s identification in its DPJTs of the Greenpark lands as “essential for the provision of lands for employment uses which cannot be accommodated in the City Centre” was not premised on their being in the DRSEL.

• LCCC’s position for purposes of the trial was that it was “unclear” whether the Greenpark Lands are in the DRSEL. Nor could it identify the 113.2 hectares to which LSMASP Table 3 refers.464

142. The JBA SFRAs and JTs for LCCC, first for the Draft Plan in June 2021465 and later for the material alterations in March 2022,466 as to whether the Greenpark Lands were part of the DRSEL, contain almost identical text as follows in, specifically, the JT for “Enterprise and Employment lands at Greenpark”:

“Limerick’s Dock Road has been identified as a key employment and enterprise location under the MASP, which acknowledges the significant potential of this area of the City for economic development.

The lands at Greenpark off the Dock Road subject of Flood Zone A & B are essential for the provision of lands for employment uses which cannot be accommodated in the City Centre (warehousing, logistics etc.). 467

The undeveloped area at Greenpark consolidates the existing built up area between the City Centre and the natural boundary represented by the Ballinacurra Creek and N18. These greenfield and brownfield lands are therefore essential to facilitate expansion and compact growth of Limerick City in accordance with national and regional planning policy.

The delivery of development on these lands is essential to allow consolidation of the existing built up area of this employment area, achieve compact growth and enable Limerick to fulfil its economic development role in the Mid-West Region.”

143. It bears recalling that DRSEL stands for “Dock Road” SEL. This text, not least the words “essential” and “off the Dock Road” appears to me to be at best unclear. In my view it at least allows the reader to infer that JBA took it that the Greenpark Lands are part of the Dock Road “key employment and enterprise

464 Transcript Day 1 p96.

465 Draft Limerick Development Plan 2022-2028 Strategic Flood Risk Assessment 26th June 2021 §A.1.2.

466 Draft Limerick Development Plan 2022-2028 Strategic Flood Risk Assessment 12 March 2022 §A.1.3.

The only difference is the deletion of the words “(warehousing, logistics etc.)”. That is irrelevant to present concerns.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

location under the MASP” to which the introductory passage refers – in other words, are part of the DRSEL. Yet, as I have said, LCCC told me at trial that JBA took the Greenpark Lands as not being in the DRSEL.

144. LCCC’s position, as I have just described it, can only be described as uncertain (even at trial) and unsatisfactory. Voyage properly criticised LCCC’s pleadings as failing to be clear on the issue and was dissatisfied that such clarity as was provided was provided only orally at trial.468 It seems to me that LCCC, as a matter of fairness to all concerned, including JBA, was obliged and failed to at least communicate to all concerned in a timely fashion, clearly, explicitly and consistently, its reasoned position on the issue whether the Greenpark Lands were included in the DRSEL. That was so even if, as its position proved to be at trial, its position was that it was unclear whether the Greenpark Lands were included in the DRSEL. That said, I nonetheless have considerable sympathy for LCCC and JDA as neither is the author of the RSES/LSMASP – where the lack of clarity originates.

CONCLUSION - GREENPARK LANDS NOT IN DRSEL

145. All that said, it seems to me that notwithstanding the lack of clarity and inconsistencies and, put plainly, errors,469 in the RSES/LSMASP, I should take a view whether, as a matter of interpretation of the RSES/LSMASP and hence as a matter of law, the Greenpark Lands are part of the DRSEL. In my view, considering the matters set out above, the best interpretation of the RSES/LSMASP in this respect is that it identifies the DRSEL lands as those included in the LDFS. They do not include the Greenpark Lands. Also, that

45.5 hectares equals 112.4 acres and 113.3 acres equals 45.8 hectares seems to me too close to accuracy to represent coincidence. I conclude, in the end with some confidence, that the LSMASP does not identify the Greenpark Lands as part of the DRSEL.

GREENPARK LANDS NOT IN DRSEL - DOES IT MATTER?

146. Does it matter for present purposes that the Greenpark Lands are not, as I have held, in the DRSEL? I have found this a difficult question. As has been seen, JBA has opined that the Greenpark Lands, including the Subject Lands, pass the DPJT for Enterprise and Employment zoning. Such passage of the DPJT requires that Enterprise and Employment zoning be “required to achieve the proper planning and sustainable development of the urban settlement” and in particular be “essential” “in achieving compact and sustainable urban growth” and to “facilitate regeneration and/or expansion of the centre of the urban settlement”.470 JBA’s conclusions in those terms are set out above.

147. Ultimately, conscious of my duty to interpret decisions in a manner which validates them where reasonably possible, it seems to me that JBA’s opinion is capable of being read to the effect that, even if they

468 Transcript, Day 1 pp71, 97, 98 & 102.

469 Notably as to quantification of the lands in the DRSEL.

Flood Risk Guidelines Box 4.1 §2(i)&(iv).

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

are not part of the DRSEL, zoning the Greenpark Lands for Enterprise and Employment uses is essential in the senses contemplated by the DPJT criteria. Given their location vis-à-vis both the DRSEL (across the road) and the city centre (as emphasised by Voyage) it seems to me that JBA, the CE and OPR were entitled to take the view that the Greenpark Lands are substantively essential for employment uses. Though I form this view independently of the instructions as to JB’s position disclosed at trial471 my view is consistent with those instructions.

148. There is a further point. Whether or not part of the DRSEL, it is a fact that Voyage’s own 2020 Masterplan envisaged an office campus – i.e. employment uses - occupying a large area472 in the north-west of the Greenpark Lands adjacent the Dock Road. On its own view, those lands, if not in its view essential, are at least suited to Enterprise and Employment uses. TPA’s submission on the Draft Plan was not to the effect that the Greenpark Lands were unsuited to Enterprise and Employment use. It was amenable to Enterprise and Employment zoning in the north-western part which had been zoned for Mixed-Use in the 2010 Plan.473 I appreciate that a pragmatic concession in what are in effect negotiations should not weigh too heavily against a landowner. But its submission was, in effect, not that Enterprise and Employment uses were unsuited to the Greenpark Lands generally: it was for retention of the Residential zoning of the eastern part of those lands. If so, whether the Greenpark Lands are in the DRSEL seems considerably diminished as a means of distinguishing between the north-western and eastern parts of the Greenpark Lands. In this circumstance, the Substitution criterion of the Sequential Approach appears to pose Voyage a problem as offices are less flood-vulnerable than Residential uses.

149. In any event, even if they are not essential for Employment uses and could not be zoned for such uses, it would not follow that the Subject Lands could or should be zoned Residential. More likely they should be left unzoned or zoned only for water-compatible development. But if suitable for Employment purposes, the potential for application of the Substitution element of the Sequential Approach of the Flood Risk Guidelines clearly arises and contraindicates Residential zoning. That is because, if only generally, employment development is less flood-vulnerable than residential development. The primary significance of these observations is that the real issue for Voyage is whether, consistently with NPO 57 and in accordance with the Sequential Approach of the Flood Risk Guidelines, the Subject Lands can properly be zoned for Residential uses.

150. Accordingly, I do not see the question whether the Greenpark Lands are part of the DRSEL as affecting the outcome of these proceedings.

471 See above. i.e. that JBA took it that the Greenpark Lands were not in the DRSEL.

472 By my rough estimate more than a third but less than half of the developable lands. See e.g. drawing at Masterplan p74.

TPA Report 3/9/21 pp4 & 33.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

ORDER IN WHICH GROUNDS ADDRESSED

INDEPENDENT GROUNDS

151. The OPR particularly emphasised:474

• That, as to the Subject Lands, inconsistency of MA 147 with NPO 57 is at the heart of the Ministerial

Direction. If correct, that is a lawful basis for a ministerial direction – see s.31(1)(ba)(i) PDA 2000475. I agree.

• That inconsistency MA 147 with NPO 57 is also a contravention of the PDA 2000 and also, citing Tristor, that inconsistency with such a mandatory requirement justifies a finding of absence of a qualifying overall strategy – both of which are lawful bases for a ministerial direction – see s.31(1)(c) PDA 2000476 and s.31(1)(b) PDA 2000477. I agree.

• Humphreys J’s statements in FoIE v Minister for Housing478 (I will refer to it in this judgment as the “Dublin Airport Noise Case”479) as follows:

“As a general principle, if any independent ground for the direction can be upheld that is sufficient to sustain the direction, then the court should normally order accordingly”480 - citing McCarthy Meats.481

“For the OPR, the centre of gravity of the objection was breach of the NPF (s.31(1)(ba)). Much else follows from that – for example that was the basis of the OPR view that there was not an overall strategy for proper planning and sustainable development. So it makes sense to look at that first and foremost. That is an independent ground, so if the OPR and Minister are right on that, we don't need to go further.”482

152. While, having found for the Minister as to breach of the NPF, Humphreys J did consider the other grounds pleaded against the ministerial direction in that case, if there were any doubt as to the meaning of the sentence I have highlighted above, it is resolved in his summary of his decision:

“(iii) The reason given, that “[t]he inclusion of an objective in the Development Plan, which conflicts with and undermines these separate statutory provisions and processes, including the Noise Action Plan, is therefore inconsistent with National Policy Objective 65 of the National Planning Framework”, is not based on an error of law and insofar as it constitutes an evaluative judgement as to the application of NPO 65, which on the facts hasn't been shown to fall outside the zone of

474 Transcript Day 3 p57.

475 31.(1) Where the Minister is of the opinion that—(ba) a plan is not consistent with—(i) the national and regional development objectives set out in

the National Planning Framework and the regional spatial and economic strategy.

476 31.(1) Where the Minister is of the opinion that—(c) the plan is not in compliance with the requirements of this Act.

477 31.(1) Where the Minister is of the opinion that—(b) … the plan fails to set out an overall strategy for the proper planning and sustainable

development of the area.

Friends of the Irish Environment v Minister for Housing, Local Government and Heritage [2024] IEHC 588.

479 Though it may not be the only case capable of being so described. There are too many “FoIE” cases to render use of that descriptor useful.

480 §122.

481 McCarthy Meats v The Minister for Housing, Planning and Local Government [2020] IEHC 371, [2020] 7 JIC 2707.

§128. Emphasis added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

legitimate planning judgement and evaluation by the Minister, and is a valid basis for the direction independently of any other reason.”483

153. In this present case, the centre of gravity of the OPR’s and the Minister’s objection to MA 147 is also a breach of the NPF: specifically inconsistency with NPO 57 in its requirement of accordance with the Flood Risk Guidelines. As I have said earlier, NPO 57 and the Flood Risk Guidelines are at the core of the case. So, I will address Grounds 8, 15 and 5 first.

GROUNDS 8 & 15 OPR MISINTERPRETED FLOOD RISK GUIDELINES & ERRED IN CONCLUDING THAT SUBJECT LANDS FAILED A DPJT FOR RESIDENTIAL DEVELOPMENT LCCC FAILED TO CORRECTLY INTERPRET/APPLY FLOOD RISK GUIDELINES OR GIVE REASONS FOR DEPARTING FROM THEM

154. Ground 8 pleads that the OPR misinterpreted the Flood Risk Guidelines and/or failed to take into account:

• That LCCC had not done a DPJT for zoning the lands for Residential use.

• The “fact” that Voyage had satisfied all DPJT criteria. And so the OPR’s recommendation to the Minister was made in breach of fair procedures and/or is invalid. The particulars specify the OPR’s s.31AM(8) recommendation to the Minister – i.e. that of 15 July 2022 recommending a draft direction.

155. Ground 15 pleads that LCCC, in carrying out SFRAs and DPJTs as to both the Draft Plan and MA 147, and in breach of its obligation under s.28 PDA 2000 to have regard to the Flood Risk Guidelines, failed to correctly interpret or apply those Guidelines and/or to adequately explain its reasons for departing from them.

156. Ground 15 also pleads that LCCC purported to do a DPJT as to the Greenpark Lands and DPJTs for other lands in its functional area and in Flood Zones A and B which are zoned for highly or less vulnerable development. This somewhat Delphic plea is not elaborated in the particulars as to the other lands in question or as to the legal significance or consequence of the plea and I confess that its significance has eluded me. As was said in a Ballyboden TTG case,484 if on the grounds pleaded there is genuine doubt, ambiguity or confusion an applicant in judicial review cannot have the benefit of it. I will consider this issue no further.

483 §70(iii). Emphasis added.

Ballyboden Tidy Towns Group v An Bord Pleanála & Ors [2022] IEHC 7, [2022] 1 JIC 1001.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

G8&15 - VOYAGE POSITION

157. Voyage’s written submissions address Grounds 8 and 15 together, on the basis that they overlap as the OPR adopted LCCC’s alleged errors. Here, Voyage’s criticism of LCCC is of its Executive in recommending zoning the Subject Lands for Enterprise and Employment use – not of its Members, who, by MA 147, zoned them for Residential use. In particular, their alleged errors overlap in concluding (in the case of the OPR, in recommending a Draft Ministerial Direction)485 that the Subject Lands:

(i) Failed a DPJT for Residential zoning. Voyage says that LCCC did no such DPJT – that LCCC did a DPJT only for Enterprise and Employment zoning.

(ii) Passed a DPJT for Enterprise and Employment zoning.

158. Voyage also says that LCCC and OPR erred in law, and materially in fact, in:

a. Maintaining, despite not having done a DPJT for Residential zoning, that the Subject Lands had failed such a DPJT on the basis that residential use is highly flood-vulnerable. That is not, of itself, a basis for failing the DPJT. This is demonstrated by the fact that Enterprise and Employment zoning includes highly flood-vulnerable uses such as hospitals and schools.

b. Ignoring that, as Voyage asserts, the Voyage/TPA Submission of September 2021 on the Draft Plan, considered with the accompanying RPS SSFRA, satisfied all DPJT criteria for Residential zoning. The Members were entitled to, and did, take that into account in considering MA 147.

c. Misinterpreting the Flood Risk Guidelines – an error of law which results in a breach of the duty under s.28 PDA 2000 to have regard to such guidelines, as one cannot correctly have regard to what one has misinterpreted in a relevant respect – Ogalás.486 Specifically, Voyage asserts that:

o LCCC’s conclusion that Residential zoning failed a DPJT on the basis that such zoning related to “highly vulnerable uses” for the purposes of the Flood Guidelines could only have been reached on a misinterpretation of the Flood Risk Guidelines’ DPJT criteria.487 JBA’s assertion, adopted by the CE, that:

"[a]lthough not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site, less vulnerable uses (such as E&E) with appropriately detailed Flood Risk Assessment and emergency plan, may be accommodated" was, as to highly vulnerable development, not reasoned and did not address any DPJT criteria. The Flood Guidelines specifically envisage that “highly vulnerable” uses can be zoned if they pass the DPJT – a zoning cannot fail the DPJT simply because it involves “highly vulnerable” uses. LCCC’s CE in effect rejected Residential zoning in limine, without actually addressing those criteria. The OPR adopted his error.

I might paraphrase the underlying rationale of this submission by Voyage as being, essentially, that the whole point of the Sequential Approach, including the JT, is to ascertain whether inappropriate – i.e. flood-

485 Section 31AM(8) Notice of 15 July 2022.

486 Ogalás v An Bord Pleanála [2014] IEHC 487.

Set out in Box 4.1.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

vulnerable – development can, despite its inappropriateness, be zoned for on lands in Flood Zones A and/or B. Of itself, that rationale is clearly correct. Whether it undermines JBA’s assertion, and the CE and OPR in adopting it, is another matter.

o In recording488 that the DPJT can be satisfied489 with respect to redevelopment or regeneration of previously developed areas, the OPR failed to acknowledge that the DPJT can be also satisfied with respect to “under-utilised lands”.

o The OPR also failed to have regard to the fact that the Greenpark Lands could also be deemed suitable as “adjoining the core of an established or designated urban settlement”.

d. When doing a DPJT of Employment and Enterprise zoning and deeming it passed LCCC and OPR:

o Erroneously considered that the Subject Lands had been identified as a strategic employment site in the RSES/LSMASP (I have already decided above that this issue does not affect the outcome of the case).

o Failed to address the DPJT §3 criteria490 that the flood risk could be adequately managed and that development of the lands would not cause unacceptable adverse impacts elsewhere.

159. Voyage responds to the OPR’s plea491 that Voyage’s challenge to the OPR’s s.31AM(8) Notice of 15 July 2022 does not impugn the Impugned Direction because Voyage has not challenged the OPR’s s.31AN Notice of 28 September 2022. Voyage says that the OPR fails to recognise the interlocking nature of the two notices and that the Minister was expressly asked492 to rely in making the Direction on the rationale of the OPR’s s.31AM(8) Notice of 15 July 2022.

G8&15 - OPR POSITION

General

160. The OPR says that, by Ground 8, Voyage makes essentially two allegations: that the OPR erred in concluding, in its s.31AM(8) Notice of 15 July 2022, that the Subject Lands had:

488 OPR s.31AM(8) Notice of 15 July 2022 p13.

489 Assuming satisfaction of all other criteria also.

490 Flood Risk Guidelines Box 4.1 §3.

491 OPR Statement of Opposition §36 – see below under “General”.

492 Presumably this is a reference to the OPR’s s.31AN Notice of 28 September 2022:

- p4 of which states: “The issue of flood risk management was previously taken into consideration by the Office as set out in the section 31AM(8) Notice

with respect to the specific provisions set out in the Flood Guidelines as to what local authorities should do when considering land use zoning

objectives in areas at risk of flooding.”

- p13 of which states specifically as to MA 147: “As set out in the section 31AM (8) notice to your office, the reasons were carefully taken into

consideration by the Office in recommending the exercise of your function under the relevant provisions of section 31 of the Act and the Office adopts

the same rationale as set out in the 31AM(8) notice in response to those similar points raised again in submissions to the Chief Executive and as

summarised in the Report.”

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• Failed a DPJT for New Residential zoning.

• Passed a DPJT for Enterprise and Employment zoning.

161. The OPR pleads that:493

• Voyage pleads that the Direction is invalid as “premised on” the s.31AM(8) Notice of 15 July 2022, which is invalid.

• The Minister in making the Direction had regard, inter alia, to the OPR’s s.31AN Notice of 28 September 2022 (the OPR Recommendation on foot of which the Minister decided to make the Direction).

• As Voyage has not challenged the OPR’s s.31AN Notice of 28 September 2022, its challenge to the s.31AM(8) Notice of 15 July 2022 does not impugn the Direction.

Residential Zoning

162. The OPR says that:

• It did not conclude that the Subject Lands had failed a DPJT for Residential zoning. It does not assert that a formal DPJT was done for Residential zoning. Voyage’s assertions to the contrary are a straw man.

• It did lawfully conclude that:

o Residential zoning would breach NPO 57.

o The Subject Lands had not met, for Residential zoning, the requirements of the Flood Risk Guidelines’ Sequential Approach or passed a DPJT. It stated: “no Justification Test has been passed for the New Residential zoning”.494 o The JBA SFRA of March 2022 had concluded that the Subject Lands were not suitable for highly vulnerable development such as residential development.495 o As to DPJT criteria and Residential zoning:

(a) The Subject Lands might not be considered as adjoining the core of Limerick.

(b) There were suitable alternative lands for residential development in areas of lower risk within or adjoining the core of Limerick.496 It describes this as an essential point in the case.497

• These conclusions were by way of evaluative planning judgements reasonably open to it and the Minister and to which a deferential standard of review applies. In particular, the OPR was entitled to disagree, on the basis set out in its s.31AM(8) Notice of 15 July 2022 recommending a draft ministerial direction,498 with the Voyage/TPA Submission of September 2021 that the DPJT criteria had been satisfied.

493 OPR Statement of Opposition §36.

494 It cites the concluding line on page 24 of its s.31AM Notice of 15 July 2022 and p.15 of its Section 31AN Notice of September 2022.

The OPR cites p23 of its s.31AM Notice of 15 July 2022. It cites the SFRA as “crucially” having concluded that the lands were “not suitable for highly

vulnerable development due to the level of residual risk and the brownfield nature of the site.”

496 The OPR cites p23 of its s.31AM Notice of 15 July 2022.

497 Transcript Day 3 p27.

p22.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

163. The OPR says that Voyage’s Submission that:

• The OPR had failed to have regard to the Voyage/TPA Submission of 3 September 2021 on the Draft Plan and the accompanying RPS SSFRA does not survive the OPR’s express record and evidence of having done so.499 Voyage has adduced no evidence in that regard and fails to discharge the onus, established by authority,500 of proving such failure of regard.

• The Minister misinterpreted the DPJT criteria and failed to have regard to the “fact” that MA 147 satisfied them is a bare assertion for which it provides no basis.

164. The OPR says that Voyage has failed to engage with the following issues:

• Applying the Sequential Approach, in which the first step is to avoid flood risk by preferentially locating the development in question in lower risk flood zones, a formal DPJT for Residential zoning was

unnecessary. This is another iteration (in fact earlier in the sequential Approach) of OPR’s “essential point” to

which I have referred above. It arises here where:

o The lands were, as the JBA SFRA of 12 March 2022 and the LCCC Executive correctly concluded, clearly inappropriate to highly vulnerable residential development. Accordingly zoning them for Residential use is possible only exceptionally and via the Sequential Approach.501 Voyage has not stated a basis for contending otherwise.

o Avoidance was possible - alternative, suitable lands not in Flood Zones A or B were available for residential development. Voyage has asserted, but not demonstrated, otherwise.

• Alternatively, viewing the question of availability of alternative lands through the prism of the DPJT, Voyage had not demonstrated on a solid evidence base that DPJT Criterion 2(v) was satisfied.502

165. The OPR says that it is unclear what material error of fact Voyage alleges. But assuming it to be the alleged OPR conclusion that the MA 147 Lands had failed a DPJT for Residential use, that error was never made as the OPR never so concluded. Rather it concluded that the lands had not passed such a DPJT. I understand this distinction, which might at first seem fine, to reflect OPR’s appreciation of the strong presumption against Residential zoning of lands in Flood Zone A, that any such zoning is exceptional and that anyone positing it bears the onus of demonstrating satisfaction of the Sequential Approach, including the DPJT, on a solid evidence-base.

166. As to the argument that the Enterprise and Employment zoning matrix encompasses some highly vulnerable uses (e.g. hospitals) the OPR says that:

• There is a difference between the entire zoning objective being for highly vulnerable residential development and a small number of highly vulnerable uses being “open for consideration”.

499 The OPR cites p23 of its s.31AM Notice of 15 July 2022 and p15 of its s.31AN Notice of 28 September 2022 and §17 of its Affidavit of Erika Casey,

sworn 21 September 2023 verifying the OPR Statement of Opposition that it had had regard to that TPA Submission and RPS SSFRA.

The OPR cites Cork County Council v Minister for Housing [2021] IEHC 683, §§42-43; GK v Minister for Justice, Equality and Law Reform [2001] IESC

205, [2002] 2 IR 418; Jones v Dublin City Council [2024] IEHC 301, §163.

501 This sentence is not expressly pleaded but clearly represents the gravamen of the plea. See Table above: Flood Zone/Development Vulnerability

Matrix.

The OPR cites p22 of its s.31AM Notice of 15 July 2022.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• The Flood Risk Guidelines identify the typical “Enterprise and Employment” in as “less vulnerable” and/or “water compatible”.503

Enterprise & Employment Zoning

167. The OPR says that:

• JBA’s DPJT of March 2022 did assess the Lands as satisfying DPJT Criterion §3504 as to Enterprise and Employment zoning.505

• The OPR did not fail to acknowledge that the DPJT can be satisfied506 as to development of “underutilised lands”.507 Indeed, the OPR considered that the lands could be considered under-utilised508 and did not find non-compliance with the DPJT in this regard.

G8&15 - STATE & LCCC POSITIONS:

168. The Minister says that:

• Ground 8 is for the OPR to address.

• However, Ground 1 (asserting the invalidity of the Minister’s Direction) does not arise unless Ground

8 succeeds as a challenge to the OPR’s s.31AN(4) Recommendation of 28 September 2022.

• Ground 8 is pleaded only as to the OPR’s s.31AM(8) Notice of 15 July 2022 and does not challenge the OPR’s s.31AN(4) Recommendation of 28 September 2022 – which Voyage did not even exhibit.

169. LCCC says that:

• Ground 15 is in reality directed at LCCC’s SFRAs and DPJTs. But no relief is sought against LCCC in respect of those SFRAs and DPJTs. Nor do the Grounds state a basis on which Ground 15 could justify relief against LCCC.

• The Flood Risk Guidelines’ Sequential Approach requires consideration whether highly vulnerable development on lands in Flood Zones A and B can be avoided and, where avoidance is not possible, allows the zoning of less vulnerable uses. This resulted in the CE recommending against zoning for residential

503 Flood Risk Guidelines p25 – notably, less vulnerable uses include buildings used for retail, leisure, warehousing, commercial, industrial and

non-residential institutions.

504 Requiring an FRA demonstrating that flood risk to the development can be adequately managed and that the use or development will not cause

unacceptable adverse impacts elsewhere.

Flood Risk Guidelines Box 4.1 §3 - that the flood risk could be adequately managed and that development of the lands would not cause

unacceptable adverse impacts elsewhere.

506 Assuming satisfaction of all other criteria also.

507 See Flood Risk Guidelines Box 4.1 §2(ii).

The OPR cites pp21-22 of its s.31AM Notice of 15 July 2022.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

development, as highly vulnerable development, on the Subject Lands. In reality, Voyage’s only criticism of LCCC is that its CE did not accept Voyage’s submissions (including the RPS SSFRAs) in the plan-making process. On the material before him, the expert CE was entitled to conclude that the Subject Lands were unsuitable to be zoned Residential and to recommend accordingly. This is an impermissible merits-based challenge dressed up as an assertion of misinterpretation of the Flood Risk Guidelines.

I observe that the phrase “dressed up” invokes multiple authorities identifying, as it was put in Jones,509 “a

merits-based disagreement dressed up in legal language”. The phrase has its origin in Cart510 in which Lady Hale said that “it is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon ... factual conclusions”.

G8&15 - DISCUSSION

Pleading, Technical Points, Failure to Impugn s.31AN(4) Notice & Domino Effect

170. The OPR and the State are correct in asserting that Grounds 8 and 15 as pleaded do not impugn the validity of the s.31AN(4) Notice of September 2022. Voyage is correct as to fact in asserting that the OPR’s s.31AN(4) Notice of September 2022 explicitly incorporates the reasoning of its s.31AM(8) Notice of July 2022. I am not inclined to hold against Voyage on this somewhat formalistic basis.

171. As has been seen, the statutory process at issue here is highly iterative and sequential. That is a virtue of the process tending to the quality of decision-making. The iterations are directed, for example, at ensuring not merely consultation with the public and other stakeholders but that such consultation can inform the process. The decision of Humphreys J in the Cork County Council case511 is authority that, as the

“first legally critical step – the first domino”, if a s.31AM(8) Notice is invalid, or if a s.31AN(4) Notice is invalid,

so too is a ministerial direction ultimately based on it. Humphreys J described an error in the OPR’s s.31AM(8) recommendation as having “contaminated everything thereafter”512 – the “process went wrong at its conception”.513

172. I accept this view as applicable in some, perhaps many, factual circumstances – notably where the later step in substance relies on the earlier error. But, though the domino principle is valid, it is not simplistic. The domino effect should not be applied inevitably and mechanistically as if the iterative process were a trap for the decisionmaker. The whole point of iteration is to improve decision-making – including by correcting earlier errors in earlier iterations if the need arises. It does not seem to me that Humphreys J intended to hold that all errors earlier in the process cannot be later corrected – though perhaps some could

509 Jones v South Dublin County Council [2024] IEHC 301 §230. See recently Colbeam v Dun Laoghaire Rathdown County Council [2025] IEHC 437 and

Moran v An Bord Pleanála [2025] IEHC 510.

R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, §47.

511 Cork County Council v Minister for Housing [2021] IEHC 683, §§26 & 27. See also Mount Salus Residents v An Bord Pleanála, Minister for Housing,

OPR & Smyth [2025] IEHC 14 – in particular at §190 et seq.

512 §41.

§35.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

be irremediable. Of course remediation, if possible, may in practice require a willingness in decision-makers to acknowledge and correct errors. Also, some errors earlier in the process (or, for that matter, later) are, viewed in the process as a whole, harmless or may not merit certiorari – either as certiorari would be disproportionate or as it is discretionary relief. Ultimately the question as to certiorari by reason of an error earlier in the process is whether it actually and legally significantly affected (or, as counsel for the Minister put it, infected514) the final decision by way of ministerial direction.

173. So it does not suffice in an applicant for judicial review to say, simpliciter, that, for example, a s.31AM(8) Notice being flawed, a domino principle inevitably requires that the ministerial direction must be quashed. However, the quid pro quo of taking that overall view of the process is that a plea, in opposition, of failure to seek to quash an earlier part of the process does not avail if an applicant for judicial review has adequately pleaded error in that earlier part of the process. Here, in my view, Voyage has adequately pleaded error in the s.31AM(8) Notice – though not error in the s.31AN(4) Notice. However, the s.31AN(4) Notice explicitly and repeatedly invokes the s.31AM(8) Notice. Inter alia, it says

• By way of general observation:

“In forming this recommendation, this Office reiterates the submissions made to you in the Notice which issued from this Office to your office on 15th July 2022 pursuant to section 31(AM)(8) of the Act.”

“The issue of flood risk management was previously taken into consideration by the Office as set out in the section 31AM(8) Notice with respect to the specific provisions set out in the Flood Guidelines as to what local authorities should do when considering land use zoning objectives in areas at risk of flooding.”

• Specifically as to the MA 147 lands:

“As set out in the section 31AM (8) notice to your office, the reasons were carefully taken into consideration by the Office in recommending the exercise of your function under the relevant provisions of section 31 of the Act and the Office adopts the same rationale as set out in the 31AM(8)

notice in response to those similar points raised again in submissions to the Chief Executive and as summarised in the Report.”

“Further, as set out in the section 31AM(8) notice letter, the Office considered the justification test criteria, together with the CE Report and the submission from OPW in relation to MA no. 147, both of which conclude that the lands are not suitable for highly vulnerable residential development.”

“In relation to the Office’s consideration of the reasoning and analysis provided by the elected members, the Office is satisfied that the reasons have been fully taken into consideration as set out in the section 31 AM(8) notice letter.”

Transcript Day 2 p127 et seq.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

174. In the foregoing light, I am, as I have said, not inclined to hold against Voyage on the somewhat formalistic basis of failure to explicitly challenge the s.31AN(4) Notice. In fairness to the Minister, he ultimately did not press the formalistic issue.515

Law as to Mistake of Fact & Pleading such Mistake

175. Voyage correctly cites various authorities516 for the jurisdiction to quash a decision for material error of fact – ultimately citing the approval in Hennessy of the four criteria for so doing. I observe that they were recently repeated in Grassridge517 and Rye.518 They are that:

• The mistake was as to a fact existing at the time of the impugned decision.

• That fact is uncontentious and objectively verifiable.

o I observe that a conclusion by way of evaluative judgement rarely, if ever, asserts an uncontentious and objectively verifiable fact.

• The mistake was not the fault of the claimant or the claimant’s advisers.

• The mistake played a material (but not necessarily decisive) part in the decision-maker's reasoning.

o I observe that in this respect, questions of degree may arise but it must be kept in mind that the premise of a plea of mistake of fact is that it is so material to the impugned decision as to amount to a mistake of law and hence is a ground for relief in judicial review. While the fact may not necessarily be decisive it must at least be important to the impugned decision.

176. Mistake of fact is a very particular plea and is difficult to bring home - not least because the court must refrain from descent into the merits of an impugned decision. Given that the fact must be uncontentious and objectively verifiable, mistake of fact will not (save in the case of irrationality - in which event the plea of mistake of fact will, at least usually, be unnecessary) derive from a decisionmaker’s exercise of discretion or evaluative judgement. Further, misinterpretation of a statute or of a document to which statute requires regard or with which statute requires compliance is a mistake of law in the ordinary sense - not of fact. For example, Voyage’s written submission as to Ground 11 that alleged misinterpretation of the RSES and LSMASP was a material error of fact is misconceived.

177. As has been seen, the OPR submits that it is unclear what material errors of fact Voyage alleges in these grounds. The usual strict rules of pleading in judicial review apply. Not least, a pleader in judicial review can’t have the benefit of doubt, ambiguity or confusion in his/her pleading – e.g. Ballyboden TTG, Jones and Heavey.519 It is insufficient to plead “mistake of law and/or mistake of fact”, or a similar phrase, followed by a melange of complaints as to the quality of the impugned decision. Such a plea does not enable clear analysis of whether the criteria for a finding of mistake of fact, described above, are satisfied.

515 Transcript Day 2 p127.

516 Citing Efe v Minister for Justice, Equality and Law Reform [2011] 2 IR 798; and Baile Eamoinn Teoranta v An Bord Pleanála [2020] IEHC 642; Hennessy

v An Bord Pleanála [2018] IEHC 678; and Lewis, ‘Judicial Remedies in Public Law’ (5th Ed’n, 2015) for the jurisdiction to quash a decision for material

error of fact.

517 Grassridge Ltd v Dún Laoghaire Rathdown County Council [2024] IEHC 669.

518 Rye v Secretary of State for Levelling Up [2024] EWHC 358 (Admin).

519 Ballyboden Tidy Towns Group v An Bord Pleanála & Ors [2022] IEHC 7, [2022] 1 JIC 1001; Jones v South Dublin County Council [2024] IEHC 301,

Heavey v An Bord Pleanála [2024] IEHC 480.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

178. Mistake of fact must be distinctly pleaded by:

• First, identifying specifically the alleged fact in respect of which the mistake was allegedly made (e.g. the car was blue).

• Second, pleading such matter as is proffered to establish that the alleged fact is uncontentious, objectively verifiable and was in being when the impugned decision was made. (e.g. that the car was in fact blue).

• Third, identifying the alleged mistake as to that fact (the decision-maker thought the car was red).

• Fourth, identifying clearly the alleged materiality to the impugned decision of the fact and/or the mistake as to that fact - such that it is proper to treat that mistake of fact as a mistake of law.

179. Voyage’s pleas in Ground 8 of the “fact” that Voyage had satisfied all DPJT criteria and the “fact” that MA 147 satisfied the DPJT criteria are misconceived and unhelpful. These are not facts. What these pleas in truth refer to is the asserted evaluative judgement of Voyage’s expert advisors that the DPJT criteria had been satisfied for Residential zoning of the MA 147 Lands. And in fact RPS never did a DPJT. Voyage’s submission520 as to Grounds 8 and 15, that “the OPR mistakenly concluded that, as a matter of fact, the criteria under the DPJT had been met for the Employment and Enterprise zoning” is similarly misconceived – whether those criteria were met is a matter of evaluative expert judgement. Likewise, Voyage’s plea that the OPR “failed to have regard to the fact that the location of the Greenpark lands could also be deemed suitable for the purposes of the DPJT”521 unhelpfully characterises as “fact” what is in truth a legal entitlement to exercise evaluative judgement – as is revealed in the words “could also be deemed”.

180. I have not found Voyage’s pleading or deployment of the concept of mistake of fact in this case to be useful in its favour. In my view, the respondents are justified in characterising it as an attempt to mobilise complaints as to merits rather than law and to elevate to the status of fact what are in truth Voyage’s experts’ evaluative judgements (ignoring for arguments’ sake, the fact that RPS never did a DPJT). These pleas are dressed up merits.

Existing Development Status & Location of Lands - “under-utilised” & “adjoining the core”

181. I see nothing in Voyage’s argument that, in recording that the DPJT can be satisfied522 with respect to redevelopment or regeneration of previously developed areas, the OPR failed to acknowledge that it can be

satisfied with respect to “under-utilised lands”. True, the s.31AM(8) Notice of 15 July 2022 initially omitted523

reference to under-utilised lands. But the omission was later in that same Notice corrected524 - indeed with specific reference to the MA 147 Lands. I accept the OPR argument in this regard. Further, the criterion is

Written submission §117.

521 As adjoining the core of an established or designated urban settlement.

522 Assuming satisfaction of all other criteria also.

523 p13.

pp21 & 22.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

deemed satisfied by the Enterprise and Employment DPJT and such satisfaction is premise of the Enterprise and Employment zoning. There was no failure of regard in this regard.

182. Similarly, there is nothing in Voyage’s argument that the OPR failed to have regard to the fact that the Greenpark lands could also be deemed suitable as “adjoining the core of an established or designated

urban settlement”. It is not entirely clear if it is suggested that satisfaction of this criterion is an alternative to

that requiring the lands to be previously developed or under-utilised. If so, the suggestion is misconceived as DPJT Criteria 2(i) - (v)525 are cumulative, not alternatives. If the allegation is that OPR applied only the

requirement to be “within” the core and failed to consider the word “adjoining” in criterion Criteria 2(iii) –

“[i]s within or adjoining the core of an established or designated urban settlement”, it is also misconceived. The s.31AM(8) Notice of 15 July 2022 explicitly considered the issue – recording that “the lands might not be considered as adjoining the core (as defined in the guidelines)” – though in my view the OPR should have taken a clear position on the question.

183. In any event and more importantly, there is no evidence or any reason to infer that the current development status of the lands – (whether previously developed or under-utilised) or their relationship to the city core (whether within or adjoining) played any part in the preference by any of the respondents for Enterprise and Employment over Residential zoning. Indeed, that is exactly to have been expected as, on an application of the DPJT and as between the competing zonings, satisfaction of these criteria was equally necessary to both zonings and, once satisfied, militated equally for each and did not form a basis for distinguishing between them. Nor did the respondents deploy these criteria as a basis for distinguishing between them. Again, there was no failure of regard in this regard.

Residential Zoning

184. The OPR is correct in asserting that it did not conclude that the Subject Lands had failed a DPJT for Residential zoning but did conclude that they had not passed or met the requirements of the Flood Risk Guidelines’ Sequential Approach and DPJT for Residential zoning. As I have said this may seem a distinction without a difference until one remembers the Guideline’s presumption against inappropriate zoning of lands in Flood Zones A and B. The starting point - the default - is that Residential zoning is inappropriate and zoning is contraindicated unless the requirements of the Sequential Approach and DPJT are positively met and demonstrated on a solid evidence base to have been met. Mere absence of failure of a DPJT does not suffice to render inappropriate zoning allowable.

185. As to Voyage’s ambitions for a Residential zoning, my salient finding of this case is that Residential zoning is contraindicated as the requirements of the Sequential Approach and DPJT have not been positively met and demonstrated on a solid evidence base to have been met. Simply, no DPJT for Residential zoning was ever done – by anyone.

Flood Risk Guidelines Box 4.1.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

186. As will be recollected, I have found that Voyage’s assertion that its TPA Submission of September 2021 on the Draft Plan, considered with the accompanying RPS SSFRA, satisfied all DPJT criteria for Residential zoning and that the CE and OPR had ignored that DPJT is wrong. RPS only ever did two DMJTs.526 It never did a DPJT and has conspicuously refrained from asserting that it did. And so, Voyage cannot be correct in asserting that, in considering MA No.147, the Members were entitled to take into account that RPS had demonstrated satisfaction of the DPJT criteria. I can’t see that the Members could take account of a DPJT that RPS never did. In these respects there was no mistake by the OPR or the Minister – whether of law or fact.

187. I have had greater difficulty with JBA’s reasoning, adopted by the CE and OPR, that "[a]lthough not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site, less vulnerable uses (such as E&E) with appropriately detailed Flood Risk Assessment and emergency plan, may be accommodated". Voyage’s criticism of it has some substance. I agree with Voyage that it is a very purpose of the Flood Risk Guidelines to allow for at least the possibility of zoning for highly vulnerable uses on Flood Zones A and B – even if only exceptionally and I agree that a zoning proposal cannot fail the DPJT merely because it for “highly vulnerable” uses. The purpose of the Sequential Approach, and within it the DPJT, is to discern whether it is allowable to zone for uses ordinarily inappropriate from a flood risk perspective. It is not at all apparent that the references to “the level of residual risk and the brownfield nature of the site” derive from a DPJT by JBA of Residential zoning.

188. I have appreciable sympathy with Voyage’s frustration at what may appear to be the failure of the LCCC Executive to accept, as they were bound to do, at least for purposes of the analysis required of them, the Members’ instruction, by their adoption of MA 147, to properly consider Residential zoning of the MA

147 Lands for residential development by doing a DPJT for Residential use. The Executive was not obliged to change its view. But it was obliged to do the formal analysis necessary to enable proper consideration of the Members’ view. One would have expected the Executive’s response to the Members’ adoption of MA 147 to have been to explicitly apply the Sequential Approach, and a DPJT if appropriate, to specifically Residential use and report on the outcome of so doing. As I say, it is not apparent that JBA did so – I presume as they were not asked by the LCCC Executive to do so. Certainly it is not apparent that the Executive asked JBA to do so. As this creates the impression that the Executive, by omitting to do the DPJT positively required if Residential zoning was to proceed, frustrated the Members’ intentions, I consider that position regrettable.

189. However, and not without some misgivings, I have concluded that the answer lies in part in the CE Draft Plan Report of 26 November 2021, which preceded MA 147. I have set out the relevant passage527 above and I have explained why I consider that it encapsulates the inevitable failure, as to Residential zoning, of both the Avoidance element of the Sequential Approach and DPJT Criterion 2(v). In short and as to MA 147, DPJT of Residential zoning was doomed to fail as adequate suitable lands to meet housing zoning requirements were zoned elsewhere.

526 One for the Greenpark Lands Masterplan and another for the SHD – though the latter did not include the Subject lands

CE Draft Plan Report of 26 November 2021, p178.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

190. Reading JBA’s reasoning in that context and in the contexts that the lands are in Flood Zones A and B and as it is clearly reasoning central to the Impugned Decision, I think it is just possible and just fair and reasonable to read this passage in a way which validates rather than invalidates the Impugned Decision. If that is so I should so read it – see, for example, Fernleigh528 and FoIE v Minister for Housing.529 Ultimately, JBA’s reasoning seems to me to be legible as an expression of the view that:

• whether or not the MA 147 Land in Flood Zones A and B is suitable for highly flood-vulnerable residential development;

• and as zoning it for residential development can be avoided;

• and as the Sequential Approach (including DPJT) reveals that generally less vulnerable uses (employment and enterprise) can be accommodated;

• the lands should be zoned for those less vulnerable uses. Put another way, the DPJT of Employment and Enterprise uses allows, and so the Substitution principle requires, that if the lands are to be zoned for development they are to be zoned for less vulnerable Employment and Enterprise uses in preference to highly vulnerable Residential uses. I do not decide this matter on the merits but it is at least reassuring to see that this conclusion in law appears to make - almost obviously to make - practical sense.

191. As to the argument that the Enterprise and Employment zoning matrix encompasses some highly vulnerable uses (e.g. hospitals), I accept the OPR’s argument. I have explained earlier why zoning matrices do not map precisely onto flood-vulnerability classes. There is a great difference between the entire zoning objective being for highly vulnerable residential development and a small number of highly vulnerable uses being “open for consideration”. The typical uses of Enterprise and Employment lands are identified in the

Flood Risk Guidelines530 as “less vulnerable” and/or “water compatible”. If hospitals or schools are proposed

that can be addressed via a DMJT.

Enterprise & Employment Zoning

192. As I have said Voyage’s attack is two-pronged. Its second prong attacks the Enterprise and Employment zoning as not having passed a valid DPJT. It concentrates its fire on DPJT Criterion §3, which requires that a DPJT “demonstrates that flood risk to the development can be adequately managed and the use or development of the lands will not cause unacceptable adverse impacts elsewhere.” In the chronology above I have noted that this criticism has considerable substance – that JBA kicked this can down the road to a future DMJT. But assuming Voyage’s attack correct that the Enterprise and Employment zoning had not been shown to have passed a DPJT, it would clearly not follow that Residential zoning had been shown to have passed a DPJT. Given NPO 57 and the Flood Risk Guidelines531 contraindicating a zoning where it had not been demonstrated on a solid evidence base that it will satisfy the DPJT, it would clearly not be correct,

Fernleigh v ABP & Ironborn [2023] IEHC 525, §14 et seq.

529 Friends of the Irish Environment v Minister for Housing [2024] IEHC 588.

530 Flood Risk Guidelines p25 – notably, less vulnerable uses include buildings used for retail, leisure, warehousing, commercial, industrial and

non-residential institutions.

Flood Risk Guidelines §4.23.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

based merely on success of Voyage’s attack on the Enterprise and Employment zoning, to grant relief applying Residential zoning to the Subject Lands. Voyage by this means cannot achieve its aim in these proceedings. As I have said, Enterprise and Employment zoning is not the core of this case – Residential zoning is.

193. However, this attack on the Enterprise and Employment zoning is in any event flawed. Voyage is hoist with the petard of its own submission in support of MA 147.532 It positively asserted, albeit incorrectly, that as Enterprise and Employment passed the DPJT, so too must Residential use and that, in either case, “[f]he flood risk can be managed and the residual risk will not cause unacceptable adverse impacts elsewhere.” In other words, Voyage’s own submission was that both uses passed DPJT Criterion §3. And, one may add, Voyage has not in these proceedings resiled from its own submission or provided any evidential basis contradicting it.

194. Further, it is clear that, assuming both uses passed DPJT Criterion §3 and that sufficient residentially zoned lands are zoned elsewhere, the Avoidance and Substitution principles of the Sequential Approach would require a zoning preference of less vulnerable Enterprise and Employment use over highly vulnerable Residential use. And as:

• In truth Voyage’s only and ultimate objective is clearly Residential zoning.

• Its impugning the DPJT of Enterprise and Employment zoning is merely its means to that end.

• It has not demonstrated on solid evidence an insufficiency residentially zoned lands zoned elsewhere and that the OPR and the Minister erred in taking the view that sufficient residentially zoned lands are zoned elsewhere.

• Absent insufficiency residentially zoned lands zoned elsewhere, there is no prospect of Residential zoning in accordance with the Flood Risk Guidelines as required by NPO 57. It follows that there would be no purpose, by reference to Voyage’s objective of Residential zoning, in quashing and remitting the Impugned Direction by reference to any deficiency in the DPJT of Enterprise and Employment zoning. On that basis, and assuming deficiency in the DPJT of Enterprise and Employment zoning, I would refuse certiorari - if needs be on discretionary grounds.

G8&15: DECISION

195. For the foregoing reasons, I dismiss Grounds 8 and 15.

4 April 2022.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

GROUND 5 - MINISTER ERRED IN LAW IN CONCLUDING THAT LCCC FAILED TO HAVE REGARD TO FLOOD RISK GUIDELINES

G5 - VOYAGE POSITION:

196. Here, in some contrast to Grounds 8 and 15, Voyage’s reference to LCCC is to the Members in residentially zoning the Subject Lands – not to the Executive in recommending Enterprise and Employment zoning.

197. Voyage says that:

• The Minister erred in law as his Direction stated and/or implied that LCCC failed to have regard to the Flood Risk Guidelines.

• LCCC’s obligation of regard to s.28 guidelines cannot be converted by the s.31/s.31AM processes into an obligation of compliance – see the Cork County Council case.533

• A Government policy document such as the NPF cannot override s.28 PDA 2000 to convert an obligation of regard to guidelines to one of compliance - as that would be inconsistent with the constitutional separation of powers.

• The Members did have regard to the Flood Risk Guidelines.

• The Members “had regard to the fact that the TPA submission on the Draft Plan taken together with the RPS SSFRA which accompanied it satisfied all of the criteria for the purposes of the DPJT under Box 4.1 of the Flood Guidelines.” I have explained above why this is not a “fact”.

G5 - STATE & OPR POSITION:

198. The Minister and OPR say the Minister did not err. He did not directly534 require LCCC to comply with the Flood Risk Guidelines. The OPR and the Minister did not “elevate” the status of the Flood Risk Guidelines in the manner deprecated in the Cork County Council case. However, the Government, in making the NPF, incorporated in NPO 57 the requirement of accordance with the Flood Risk Guidelines. So, plan-making consistent with NPO 57 and NPF in accordance with the Flood Risk Guidelines, must avoid inappropriate development in areas at risk of flooding.

199. The Minister concluded that, as to the MA 147 Lands:

• LCCC had not complied with NPO 57. Its CDP was not in accordance with the Flood Risk Guidelines.

• LCCC’s s.28(1A) statement was inadequate.

• LCCC’s reasons for not complying with the Flood Risk Guidelines were inadequate.

• LCCC’s Development Plan was not made consistently with, and LCCC failed to implement, the OPR’s recommendations.

533 Cork County Council v Minister for Housing, Planning and Local Government [2021] IEHC 683.

I have added the word “directly” as representing the sense in which I understand the Minister’s and the OPR’s position.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

200. The Minister and OPR say that even where a planning authority has had regard to guidelines, by s.31(1)(ba) PDA 2000:

a. A ministerial direction may issue if the plan is not consistent with the NPF. Reason II of the Ministerial Direction cites:

o The inconsistency of the Plan with NPO 57 of the NPF, which requires accordance with the Flood Risk Guidelines.

o The absence in the s.28(1A) statement in the Plan of information sufficient to demonstrate and justify the opinion that the achievement of the Guidelines’ objectives is not possible.

b. The Minister adopts §54 of the OPR’s Opposition. §54 pleads that:

o The “central thrust” of its recommendations was that zoning the Subject Lands for Residential use would be inconsistent with NPO 57.

o NPO 57 gives the Flood Risk Guidelines “additional force” (beyond the regard to them required by s.28 PDA 2000) “by making flood risk management in accordance with those Guidelines an objective of the NPF.”

o By so doing, NPO 57 applies to flood risk management in accordance with the Flood Risk Guidelines planning authorities’ statutory obligations with respect to the NPF under, inter alia, sections 10(1A), 10(2A)(a), 11(1A) and 12(18) PDA 2000.

c. The combined effect of NPO 57 and the statutory obligation on LCCC in making development plans to act consistently with, inter alia, NPO 57 is to require LCCC to act in accordance with the Flood Risk Guidelines. So plan-making consistent with NPO 57 in accordance with the Flood Risk Guidelines must avoid inappropriate development in Flood Zones A and B. The OPR cites the Dublin Airport Noise Case.535 d. The Minister’s conclusion that the Plan was inconsistent with NPO 57 was evaluative, reasonably open to him, entitled to curial deference and reviewable as to its merit only for irrationality. Voyage has set out no basis for quashing it as irrational: its argument is the misconceived one that the height of the Members’ obligation was to have regard to the Flood Risk Guidelines – that they have no mandatory force as to the terms of development plans. That is misconceived given the effect of NPO 57.

e. Finally, as to Voyage’s assertion that the Voyage/TPA Submission of September 2021 on the Draft Plan, considered with the accompanying RPS SSFRA, satisfied all DPJT criteria for Residential zoning and that the Members were entitled to, and did, take that into account in considering MA 147, the OPR takes a pleading point. I will address that point further below.

Friends of the Irish Environment v Minister for Housing, Local Government and Heritage [2024] IEHC 588.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

G5 - DISCUSSION & DECISION

Statutory context

201. Sections 10(1A), 10(2A)(a), 11(1A) and 12(18) PDA 2000 require, inter alia:

• S.10(1A) &(2A)(a) - that the core strategy statement in a development plan show that:

o the development objectives in the plan are consistent, as far as practicable, with NPOs of the NPF; and o the plan and its housing strategy536 are consistent with the NPF.

In Cork County Council537 Humphreys J cited s.10(1A) for the view that the category of “[m]andatory criteria where consistency is required” includes, in the development plan context, the NPF.

• S.11(1A) – that development plan-making be strategic, for the purposes of developing:

(a) the objectives and policies to deliver an overall strategy for the proper planning and sustainable development of the area; and

(b) the core strategy;

and shall take account of the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or of any Minister of the Government.

• S.12(18) – section 12 prescribes the process of making a Development Plan. Inter alia, it provides that a CE report on a draft plan and requires that a CE report on material alterations take account of the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or of any Minister of the Government and that the members consider those obligations in making the Development Plan. By s.12(18), "statutory obligations" includes the obligation of a local authority to ensure that the development plan is consistent with NPOs of the NPF.

202. Also and importantly, s.31(1)(ba)(i) PDA 2000 clearly entitles the Minister to issue a direction where a Development Plan “is not consistent with … national … development objectives set out in the” NPF. Such objectives are in the form of NPOs.

Standard of review

203. In the Dublin Airport Noise Case,538 FoIE challenged a ministerial direction to Fingal County Council to remove from its development plan an objective539 to reduce the noise level threshold for the application of, and hence in practice expand the geographical range of, a Residential Noise Insulation Scheme for homes

536 S.93 PDA 2000 - "housing strategy" means a strategy included in a development plan in accordance with section 94(1).

537 Cork County Council V Minister for Housing, Ireland and The Attorney General [2021] IEHC 683, [2021] 11 JIC 0502.

Friends of the Irish Environment v Minister for Housing, Local Government and Heritage [2024] IEHC 588. Since the trial of these proceedings, the

Court of Appeal (Hyland J) has upheld the High Court’s judgment - [2025] IECA 128. Hyland J found “no fault in the trial judge’s conclusion that the

challenge to the Direction involved mixed questions of fact and law and as such involved a somewhat deferential review, given the reference to the

Minister’s “opinion” under s. 31 of the 2000 Act, and the significant factual elements that the Minister was required to consider.”

§PA CH 8.1.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

affected by aircraft noise around Dublin Airport. For present purposes,540 its significance lies in the fact that the ministerial direction was based on alleged inconsistency of the development plan objective with NPO 65. The High Court (Humphreys J) held that the Minister was entitled to so conclude and issue a direction accordingly.

204. NPO 65 is to “[p]romote the proactive management of noise where it is likely to have significant adverse impacts on health and quality of life and support the aims of the Environmental Noise Regulations through national planning guidance and noise action plans”. Those aims included implementation of the ‘Balanced Approach’541 to the management of aircraft noise as set out in EU Regulation 598/2014. That ‘Balanced Approach’ had been adopted in the applicable Dublin Airport Noise Action Plan.

205. The High Court held that:

• There is no special standard of review for challenges to ministerial directions. The general law applies.542

• The Minister’s opinion, formed for the purpose of s.31 PDA 2000 as underlying his direction, related to mixed questions of fact and law, requiring consideration of significant factual elements, as to which a somewhat deferential standard of judicial review for rationality applied.

• The members of Fingal County Council had failed to apply the required ‘Balanced Approach’ so the Minister had acted lawfully in concluding that the development plan objective was not in compliance with the Noise Action Plan and so failed to support NPO 65.

• It was “reasonably open to” the Minister, in the complex circumstances of that case,

“to conclude that inclusion in a development plan of an objective to take measures premised on the inadequacy of existing noise mitigation measures … is not consistent with the current noise action plan, and is therefore not consistent with the requirement to support the environmental noise directive through noise action plans as embodied in (NPO 65) … and is therefore a valid basis for a finding of inconsistency with s. 10(1A) of the 2000 Act, and is therefore also a valid basis for a finding of a lack of an overall strategy for the proper planning and sustainable development of the area concerned, and thus ultimately a lawful basis for a notice by the OPR, a draft direction and a final direction.”

540 The case was complex and only a very brief account is possible here. Inter alia, the circumstances involved a division of functions by the Aircraft

Noise (Dublin Airport) Regulation Act 2019. Thereby, the Aircraft Noise Competent Authority (ANCA) was responsible for adopting the relevant

Residential Sound Insulation Grant Scheme for dwellings within the Initial Eligibility Contour Area with a proposal to review in 2027 commencing with

dwellings in the 55 dB Lnight contour. As it happens, the ANCA is Fingal County Council – but acting by its executive, not its Members. In crude

summary, the elected Members wanted a threshold of 40 dB.

541 Promulgated by the International Civil Aviation Organisation.

§45 – citing Tristor Ltd v Minister for Environment [2010] IEHC 397, [2010] 11 JIC 1103, §5.7.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

206. The OPR properly drew attention to Humphreys J’s citation in FoIE of the “central holding” by Clarke J in Tristor,543 that mere disagreement by the OPR and Minister with the members’ policy choices in making their development plan and their development plan strategy does not empower the Minister to impose by direction his own views on proper planning and sustainable development over the members’ view. The OPR and Minister must discern illegality in the members’ decision. Their role is to police the implementation of existing planning law and binding policy – they are law enforcers not lawgivers.544 In my view, while statutory changes since Tristor have affected the answers to questions what is legal and what is illegal on the part of elected members adopting a development plan, illegality of a development plan remains the central legal touchstone as to the validity of ministerial directions.

207. Humphreys J in FoIE emphasised that:

• "While the statutory detail has changed since the decision in Tristor it hasn't changed so much that the basic point made by Clarke J. there no longer applies, namely that the Minister has to do more than simply disagree with the council as to what is the most desirable provision to make."

• What Clarke J says and means is that the Minister can't impose his own view of proper planning and development “simply because the Minister may prefer it”.545

• In his view, the inadequacy to validate a direction of simple OPR and ministerial disagreement with members’ policy choices and strategy does not mean that a ministerial direction is invalid if the members have adopted:

“… anything that can reasonably be described as an overall strategy. Nor does it mean that the Minister can't intervene if the question of compliance is a mixed question of fact and law which involves evaluative judgement rather than either mere preference at one end of the scale (where intervention isn't permitted) or clear illegality at the other (which obviously does warrant a direction). The present case falls within that intermediate zone where there is a scope for evaluative judgement as to compliance with binding national policies, so in principle the Minister has a legitimate role.”

208. When one remembers that:

• The necessary basis for a direction is a ministerial opinion of illegality by the members of the planning authority.

• Nonetheless, directions may not be deployed merely to vindicate the Minister’s view of what is more desirable in local planning policy as between lawful alternatives; As counsel for the Minister accepted, if

543 Tristor Ltd v Minister for Environment [2010] IEHC 397, [2010] 11 JIC 1103, §138.

544 §§125, 126 and 138.

Emphasis added.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

there is a range of options for complying with national policy the Minister can't intervene merely on the basis that (s)he prefers a different option to the complaint option chosen by the planning authority.546

• The members’ decision to adopt a particular policy in their development plans will typically have been based on at least an appreciable degree of evaluative planning judgement (ordinarily judicially reviewable for illegality as to substance on the demanding test of members’ irrationality);

It seems to me that allowing the Minister to act merely on a contrary evaluative judgement in making a direction (likewise ordinarily reviewable for illegality as to substance on the demanding test of irrationality by the Minister) amounts, as was observed in Mount Salus547 to a delicate question for the court whether it was irrational of the Minister to find the members’ decision irrational? And presumably both the court and the Minister must apply the same high bar test of irrationality – whether “the decision impugned is fundamentally at variance with reason and common sense.”

209. Of this statutory architecture I observe as follows:

a. It appears to me to create an appreciable danger that in practice the Minister is empowered to discern an illegality in a circumstance in which the court could or would not do so. At least ordinarily, questions of legality are ultimately for the courts. All things being equal, I confess that I would have been reluctant to conclude that a decision whether development plan content is illegal could differ as between the Minister and the courts and yet the former prevail.

b. Yet, as was observed in Mount Salus, Clarke J in Tristor considered that once the Minister has acted on a correct understanding of the law and of the relevant materials, his/her opinion whether the facts of the case amount to a breach of the law is reviewable as to its merit only for irrationality. This may have been obiter as Clarke J actually quashed the direction in Tristor on a different basis - that the Minister had misconstrued the law as requiring compliance with a retail strategy and/or retail guidelines and/or had misconstrued s.31 PDA as entitling him to issue a direction if merely he differed from the council as to a matter of evaluative planning judgement of the substantive quality of the overall strategy in the development plan as compared to that which he advocated.

c. I find it difficult to discern a principled basis on which to identify, either generally or in a particular case, in the intermediate zone identified by Humphreys J, a satisfactory watershed between a valid ministerial opinion of illegality and an invalid mere disagreement by the Minister with members’ policy choices and development plan strategies. I confess that I am unclear why, assuming no other species of illegality is at issue, the members may not adopt what Humphreys J describes as “anything that can reasonably be described as an overall strategy” – the mildly pejorative “anything” here being outweighed, one would think, by the word “reasonably”. After all, what is reasonable on the part of the members is not illegal for irrationality.

546 Transcript Day 3 p59.

Mount Salus Residents v An Bord Pleanála, Minister for Housing, OPR & Smyth [2025] IEHC 14. That decision is under appeal at present.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

d. If that watershed consists in the high bar of irrationality by the Minister, the intermediate zone in which his decision is accorded deference will in reality occupy all but the far end of the spectrum from mere preference to clear illegality.

e. In short, the question seems to arise whether the prohibition on the Minister’s issuing a direction based on mere disagreement with the members’ preferences is liable to be whittled towards insignificance.

This question resulted in the following exchange between me and counsel for the OPR – which I have edited for clarity.

▪ I asked the following question as it related to the power of a local authority to determine the content of its development plan, reviewable as to merit only for irrationality, and the power of the minister to form an opinion, reviewable as to merit only for irrationality, that the resulting plan was inconsistent with the NPF: and if on any reasonable basis the Minister can characterise his opinion as being that there is an inconsistency as opposed to a mere disagreement as to planning policy choice and can do so on the basis of evaluative judgement reviewable as to merit only for irrationality, what's left in the power of a local authority?

▪ Counsel replied: “I don't shy away from the fact that that, in my respectful submission, is the centralisation of power that the Oireachtas intended.”

210. While I consider that in law the present statutory architecture confines the Minister to issuing a direction only in the case of illegality of a development plan, I respectfully remain dubious that the present statutory architecture in reality is effective to so confine the Minister. While it is entirely within the power of the Oireachtas to strike, as to the adoption of planning policy, the balance of power in as between central and local government, I remain dubious that the present statutory architecture represents the statutory clarity and precision required by Collins J in Spencer Place548 for the transfer of planning powers from local to central government.

211. It seems to me that these difficulties of balance between members’ and ministerial powers are susceptible also to amplification in a given case by reference to the decision of Hogan J in Killegland549 (not, it seems, canvassed in the Dublin Airport Noise Case) to the effect that, as to their adoption of development plans, the NPF constrains the members “to some degree”. Their plan must align with it “generally” and not “in every detailed and minor particular” and, in at least certain respects, the NPF and its NPOs are “largely precatory and aspirational” – articulating “(“a preferred approach”) rather than imposing a legally prescriptive standard” and “leaving some zone of discretion in actual implementation.” Where applicable, Killegland appears to give members substantial scope for legality of their development plans. In both Tristor and Killegland, the Court cited Article 28A of the Constitution as mandating particular respect for decisions of local government organs.

548 Spencer Place Development Company Limited v Dublin City Council [2020] IECA 268, [2020] 10 JIC 0202.

Killegland Estates v Meath County Council & Giltinane [2023] IESC 39, [2023] 12 JIC 2109, §100 et seq.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

212. Since the trial of this action, I have in Mount Salus (a decision at present under appeal) expressed the view that the Dublin Airport Noise Case was less in the intermediate zone than at the “clear illegality” end of the spectrum and that, on its facts, the decision was unsurprising - not least as NPO 65 could be read as non-precatory. But I must note that the Court of Appeal has since upheld the decision in the Dublin Airport Noise Case by reference to the irrationality standard of review of a direction in its factual aspects.550 In Mount Salus, I described this area of the law as difficult and as requiring a delicate tripartite balance of mutual respect, deference and restraint as between local government, central government (both the Minister and the OPR) and the courts.

213. All that said, it does seem to me that, in this particular case, a resolution of Ground 5 is possible. That is so not least as the Minister was content to rest on the narrow case that NPO 57 is not precatory and aspirational and requires compliance with Flood Risk Guidelines expressed in imperative terms.

Effect of NPO 57 & Flood Risk Guidelines & Decision on Ground 5

214. Voyage argues that:

• The height of the Members’ obligation was, by s.28 PDA 2000, to have regard to the Flood Risk Guidelines – that they have no mandatory force as to the terms of development plans.

• Accordingly, non-compliance with the Flood Risk Guidelines could not constitute an illegality in the Development Plan capable of validating the Ministerial Direction.

215. As my consideration of this question above records, I accept the view of OPR and the Minister that Voyage’s argument is misconceived – essentially as I accept their view of the interpretation and combined effect of NPO 57, the Flood Risk Guidelines the statutory context described above551 and s.31(1)(ba)(i) PDA 2000.552 NPO 57 is not in the Killegland category of merely precatory or aspirational NPO. It requires that development plans accord with the Flood Risk Guidelines. I accept the State’s analogy with Four Districts for purposes of interpreting NPO 57. as Humphreys J said in that case: “[t]he distinction between regard and compliance is fundamental in planning law and in law generally” and “[a]ccord or accordance means compliance.” 553 In the particular instance of NPO 57, the combined effect to which I have referred is to give the Flood Risk Guidelines a legal status enhanced as compared to that conferred by s.28 PDA 2000. That obligation is to require that a Development Plan be consistent, as far as practicable, with the Flood Risk Guidelines. And absent such consistency, s.31 empowers the Minister to issue a direction, in effect, amending a development plan to remedy a breach of that obligation.

216. I should say that I do not see here an issue of constitutional separation of powers. I understand Voyage’s invocation of the principle as objecting to what it sees a purported ministerial amendment of

550 Friends of the Irish Environment v Minister for Housing, Local Government and Heritage [2025] IECA 128.

551 Sections 10(1A), 10(2A)(a), 11(1A) and 12(18) PDA 2000.

552 A Ministerial Direction may issue if the plan is not consistent with the NPF.

Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335, §119.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

primary legislation – s.28 PDA 2000 (the ‘have regard to’ obligation as to Guidelines) – by means of the NPF,

which is not primary legislation. But just as much as the Oireachtas by s.28 stipulated a mere duty of regard to guidelines, by Part II, Chapter IIA PDA 2000 it required the Government to make the National Planning Framework, which must address the identification of nationally strategic development requirements and the promotion of sustainable settlement strategies. And there is no plea that the NPF, in setting objectives as to flood risk management, exceeded that remit or that NPO 57 is ultra vires Chapter IIA PDA 2000. Further, the Oireachtas, by s.10(1A) and (2A)(a) PDA 2000, explicitly stipulated development plan consistency with the NPF. As Killegland shows, the requisite degree of that consistency may vary as between NPOs as they are more or less precatory and aspirational. But, as I have said, NPO 57 is not in merely precatory or aspirational terms. In short, the powers exercised by the Government in adopting the NPF and the effect of their exercise on development plans are explicitly conferred on it by Oireachtas in the PDA 2000 just as much as s.28 PDA 2000 imposes on planning authorities, save where otherwise provided, a mere duty of regard to guidelines.

217. Nor, as relevant, are the Flood Risk Guidelines in merely precatory or aspirational terms. Even allowing that they envisage the exercise of evaluative judgement, they are in my view adequately specific to enable reliable assessment of accordance with them or not – at least in the present case. They set a clear and rigorous presumption against flood-vulnerable development in Flood Zones A and B and clearly contemplate highly vulnerable development in Flood Zone A as exceptional. Whether one views the facts of the present case as the application of Avoidance and/or Substitution – the first and second elements of the Sequential Approach - or as the subsequent application of Criterion 2(v) of the DPJT mandated by those Guidelines, it is inescapable that a less flood-vulnerable use, such as Enterprise and Employment, of the Subject Lands in Flood Zones A and B is available as a substitute for (or, as I would say, to be preferred to) residential development. Further the CE554 and the OPW555 clearly took the view that a more than adequate quantum of suitable lands elsewhere is zoned to meet the Plan’s housing targets. TPA’s criticism of this view as “unsubstantiated” purports to reverse the presumption against flood-vulnerable development in Flood Zones A and B. It is in my view ineffective criticism absent substantiated contradiction. To put it another way, it is ineffective criticism absent refutation - as opposed to merely rejection - of the view that an adequate quantum of suitable lands had been residentially zoned elsewhere. I refer to my note above as to the content of the CE Report of November 2021 on the Consultations as to the Draft Plan. On this view and applying the Sequential Approach, Residential zoning of the MA 147 Lands was avoidable – or, to put it another way, unnecessary to achieve the Plan’s housing targets. This conclusion is amplified by the objection that the Subject Lands are predominantly in Flood Zone A, residential development of which is, explicitly by the Guideline, to be “exceptional”.

218. Application of Criterion §2(v)556 of the DPJT produces the same result.

219. Voyage’s plea that the “members had regard to the fact that the TPA submission on the Draft Plan taken together with the RPS SSFRA which accompanied it satisfied all of the criteria for the purposes of the

CE Report to Members on Draft Plan Consultation - November 2021. See chronology above.

555 OPR Submission on Material Alterations (incl. Recommendation #4) - April 2022 - See chronology above.

556 The zoning or designation of the lands for the particular use or development type is required to achieve the proper planning and sustainable

development of the urban settlement and, in particular: … (v) There are no suitable alternative lands for the particular use or development type, in

areas at lower risk of flooding within or adjoining the core of the urban settlement.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

DPJT under Box 4.1 of the Flood Guidelines” is misconceived in that, as recorded above, the TPA Submission was significantly erroneous.

220. Further, regard to the Flood Risk Guidelines required regard not just to the question of application of a DPJT – it required such regard as part only of regard to the Sequential Approach and, as counsel for the OPR points out,557 there is no evidence of such regard by the Members. Notably, there is no evidence of their regard to the principle of avoidance and, perhaps more notably given Enterprise and Employment zoning had passed a DPJT, there is no evidence of regard to the principle of substitution which, at least at first view, would have favoured Enterprise and Employment zoning over Residential zoning and have required their regard accordingly. Notably also, if, on Voyage’s logic, the Members had regard Reason 10 they must also have had regard to the other reason – including Reason 7. On that view, Reason 7 mislead them (I do not suggest deliberately) as to the interpretation of the Guidelines, in asserting that “Under this sequential

approach, once the lands are in Flood Zone A, both ‘Highly Vulnerable’ and / or ‘Less Vulnerable’ uses require

a Justification Test and once this test is passed the authority are not restricted regarding land use that can be applied.” This ignores the necessity of applying the Avoidance and Substitution tests before applying a DPJT and ignores the result that a DPJT is done only as to a form of use which has passed those tests. Of course, an obligation of regard to a document is satisfied only if the decision-maker has both fully informed itself of its content and interpreted the document correctly - as was said in Coyne, citing numerous authorities.558 In any event, the Members’ view did not bind the CE, the OPR and the Minister as to the question whether the Subject Lands were zoned inconsistently with NPO 57.

221. In those circumstances and whether considered as an issue of clear illegality or as a conclusion reviewable as to merit only for irrationality, I cannot see that the Minister erred in law in concluding that the MA 147 lands were zoned by LCCC’s Members inconsistently with NPO 57 and that the Members gave no or no adequate reasons of proper planning and sustainable development (which reasons would have had, by the Flood Risk Guidelines,559 to have consisted in demonstration on a solid evidence-base that Residential zoning satisfied the DPJT) and with OPR recommendations in that regard.

222. Thereby, and but for the Minister’s Direction, the Development Plan:

• Was inconsistent with NPO 57 of the NPF in breach of s.10(1A) &(2A)(a) – within the meaning of s.31(1)(ba)(i) PDA 2000;

• On the authority of the Dublin Airport Noise Case,560 lacked an “overall strategy” - within the meaning of s.31(1)(b) PDA 2000;

557 Transcript Day 3 p79.

558 Coyne v ABP, Ireland & EngineNode [2023] IEHC 412 §20, citing:

As to the duty to inform oneself fully: McEvoy v Meath County Council [2003] IR 208; Board of Management of Temple Carrig Secondary School v An

Bord Pleanála [2017] IEHC 452, Pinewood Wind Ltd & Element Power Ltd v The Minister for Housing [2018] IEHC 697; Merriman & FIE v Fingal County

Council [2017] IEHC 695.

As to the necessity of correct interpretation: Redmond v An Bord Pleanála [2020] IEHC 151 §94: “A decision-maker cannot be said to have properly had

regard to objectives or policies which it has misunderstood”; Killegland Estates Limited v Meath County Council [2022] IEHC 393, regard “presupposes a

correct understanding”; Tesco Stores Limited v Dundee City Council [2012] UKSC 13 “a planning authority must proceed upon a proper understanding

of the development plan … the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have

regard to the provisions of the plan if it fails to understand them”.

559 Flood Risk Guidelines §4.23.

560 “For the OPR, the centre of gravity of the objection was breach of the NPF (s.31(1)(ba)). Much else follows from that – for example that was the

basis of the OPR view that there was not an overall strategy for proper planning and sustainable development”.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• Failed to implement the OPR’s recommendation - centrally based on NPO 57 - within the meaning of s.31(1)(a)(i) PDA 2000;

• And by reason of each of those features, was non-compliant with the PDA 2000 within the meaning of s.31(1)(c) PDA 2000.

223. Accordingly, on this, the core of the case, Ground 5 dismissed and in that regard the Direction is upheld.

G5: PLEADING POINT

224. As recorded above, and as to Voyage’s assertion that the Voyage/TPA Submission of September 2021 on the Draft Plan, considered with the accompanying RPS SSFRA, satisfied all DPJT criteria for Residential zoning and that the Members were entitled to, and did, take that into account in considering MA 147, the OPR takes a pleading point on Ground 5.561 It says that:

• Only the Members can do a DPJT. (I observe that this is common case).

• Voyage’s pleaded case is that LCCC never did a DPJT criteria for Residential zoning.

• Voyage never pleaded that LCCC (whether or not by its Members) did a DPJT for Residential zoning.

225. The OPR points to the following in the Amended Statement of Grounds as, it says, the closest Voyage came to pleading that LCCC (whether or not by its Members) did a DPJT for Residential zoning.

• 16 “… the elected members … did have regard to the Flood Guidelines … [they] had regard to the fact that the TPA submission on the Draft Plan taken together with the RPS SSFRA which accompanied it satisfied all of the criteria for the purposes of the DPJT. … However, the Minister … failed to have regard to the fact that … MA147 satisfied the criteria under the said DPJT.”

• 57 On 18 February 2022, a councillor moved a motion for a material amendment of the Draft Plan, listing 10 reasons which included, substantially, the wording of the DPJT in the TPA Submission of

3 September 2021 on the Draft Plan.562 However, the version presented by the forward planning team to the elected members was a substantially summarised version i.e. three bullet points on one page including a map of the lands. The elected Members passed the motion. Their reasons as recorded in the minutes did not include any of the DPJT text relating to the lands referred to in the motion. Thereby LCCC acted, inter alia, in breach of fair procedures.563

226. For my part, I would add reference to the following in the Amended Statement of Grounds:

561 Transcript Day 3 p79.

562 This assertion is also pleaded in the Amended Statement of Grounds at Part 2 – Factual Background and Chronology §19.

563 I have considerably edited this plea to simplify it. However, I am satisfied that I have preserved any content which Voyage might mobilise against the

pleading point.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

• 3&4 Insofar as §II of the Statement of Reasons in the Impugned Direction states that the 2022 Development Plan, as made, includes “significant lands” zoned inconsistently with NPO 57 and without passing the Flood Guidelines’ sequential approach and DPJT and thereby refers to the Greenpark lands, the Minister erred in law and fact in concluding that a DPJT was not done as to the Greenpark lands. That

conclusion appears to have been based on the incorrect statement in the OPR’s s.31AM Notice that the zoning of the Greenpark lands for New Residential had failed the DPJT done by the Council.564

• 20 The OPR erred in law and in fact in concluding in its s.31AM Notice “that the proposed zoning of the Greenpark lands for New Residential had failed a DPJT … where the only DPJT carried out by the Council was in respect of Enterprise and Employment zoning on the said lands.” 565

• 24 “… the OPR failed to have regard … to the fact that no DPJT was carried out by the Council in respect of New Residential zoning on the Greenpark lands”.566

I think it is also fair to say that at least one thrust of the pleaded grounds was that the conclusion that the MA 147 Lands had failed a DPJT for Residential zoning was in error precisely because LCCC had not done a DPJT for Residential zoning of the MA 147 Lands.

227. As is well-understood from the cases,567 pleading requirements in judicial review are strict. Clarity, precision and particularity are required. That strictness is tempered, though only somewhat, by the principle that pleadings are to be read in a fair and reasonable way to discern what is “acceptably clear”. For the avoidance of doubt I would extend the concept of acceptableness also to the requirements of precision and particularity – though in truth the concept of acceptable clarity is in any event overarching. And acceptable clarity can be provided by necessary implication from express pleas. Nonetheless if, on such an interpretation of the pleadings, a matter is found not to have been pleaded, the rule is strict – it is excluded from consideration at trial. A point not pleaded and particularised acceptably clearly cannot be made. And the requirements of clarity and precision mean that, as was said above, if a pleading in judicial review leaves genuine doubt, ambiguity or confusion, the pleader cannot have the benefit of it. Without elevating it to a rule, I think it can be added that, as a general principle of acceptability of clarity, to be applied contextually by reference to the particular circumstances of the case, the more important a point is likely to be in the case, the more important it is that it be clearly pleaded. That is a consequence of the purpose of pleading – which is that the pleader’s opponent must know what case (s)he will have to meet at the trial. Pleadings should not, even if unintentionally on the part of the pleader, be a puzzle for the opponent to solve. The opponent should not need to ferret about the pleading to find the case to be made against him/her.

564 I have considerably edited this plea to simplify it. However, I am satisfied that I have preserved any content which Voyage might mobilise against the

pleading point.

565 I have considerably edited this plea to simplify it. However, I am satisfied that I have preserved any content which Voyage might mobilise against the

pleading point. Emphasis added.

Emphasis added.

567 E.g. St Audoen’s National School v An Bord Pleanála [2021] IEHC 453; Sweetman v ABP & Bord na Mona [2021] IEHC 390; Atlantic Diamond Ltd v An

Bord Pleanála [2021] IEHC 322; Ballyboden Tidy Towns Group v An Bord Pleanála & Ors [2022] IEHC 7, [2022] 1 JIC 1001; Environmental Trust Ireland v

An Bord Pleanála & Cloncaragh Investments [2022] IEHC 540 §211 et seq; O’Donnell v An Bord Pleanála & Drumakilla [2023] IEHC 381; Sherwin v An

Bord Pleanála & CWTC [2023] IEHC 26; Dunne & Ors v Kildare County Council & Ors [2023] IEHC 73 and Croft v Dublin City Council [2025] IEHC 656.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

228. As Voyage argued the case at trial, it said that LCCC, in the form of its Executive, had not done a DPJT for Residential zoning (with the consequential arguments described above) but that LCCC, in the form of its Members, had on 18 February 2022, by adopting the motion, adopted the 10 reasons on which the motion was moved. That included Reason 10 - which asserted that the lands “passed the Justification Test for Residential on the following basis” and set out, essentially a response to the DPJT questions posed in the Flood Guidelines Box 4.1. Such a factual assertion sits incongruously with Voyage’s plea that the LCCC Executive had unfairly failed to properly inform the Members of the 10 reasons on which the motion was moved. Of itself, that incongruity would not have prevented a plea in the alternative that, if the Members were aware of Reason 10 it followed from their passing the motion that they had done a DPJT of Residential zoning of the MA 147 lands and they had passed. I will leave aside whether that is a realistic view in all the circumstances of a motion passed unopposed and, as I have said, I do not consider that TPA/RPS had in fact done a DPJT. However, as a matter of pleading requirements, that incongruity does amplify the importance of actually and clearly making that alternative plea and actually and clearly, in referring to LCCC in the pleading, identifying at any given point whether it was the acts and omission of the Executive or of the Members which was in issue.

229. In my view, the argument that the Members on 18 February 2022 did a DPJT of Residential zoning of the MA 147 Lands and they had passed that test was highly important to the case and so needed to be clearly, precisely, particularly and unambiguously pleaded – all to a standard of acceptability. That requirement is amplified by the clear, precise, particular and unambiguous pleas directly to the contrary - that the only DPJT done by the Council was for Enterprise and Employment zoning and it had done no DPJT for Residential zoning

of the relevant lands. To put it colloquially and without expressing a legal test, in the particular context of this

case, I would have expected that a plea that LCCC had a DPJT of Residential zoning of the MA 147 lands and they had passed would have been up in lights.

230. In my view the Amended Statement of Grounds is not acceptably clear that LCCC had done a DPJT of Residential zoning of the MA 147 lands and they had passed. The OPR’s pleading point succeeds and Ground

5 is dismissed on this basis also. However, as will have been seen, and lest my view on the pleading point is wrong, I have dismissed Ground 5 on substantive bases also.

CONSEQUENCE OF DISMISSAL OF GROUNDS 5, 8 & 15 – DISMISSAL OF PROCEEDINGS

231. At this point it is to be recollected that at the root of my dismissal of Grounds 5, 8 and 15, by reference to the requirement of accordance with the Flood Risk Guidelines, is my finding that that the requirement of such accordance derives from the necessity that the development plan be consistent with the non-precatory requirements of NPO 57 of the NPF. As I have already said, that seems to me to be the centre of gravity of the OPR’s and the Minister’s objection to MA 147. I return to my consideration of the Dublin Airport Noise Case568 and McCarthy Meats.569 Applying the rationale there expressed, it appears to

568 Friends of the Irish Environment v Minister for Housing, Local Government and Heritage [2024] IEHC 588.

McCarthy Meats v The Minister for Housing, Planning and Local Government [2020] IEHC 371, [2020] 7 JIC 2707.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

me that dismissal of these Grounds 5, 8 and 15 such that the Minister’s reliance on NPO 57 is upheld, confirms what Humphreys J described as “a valid basis for the direction independently of any other reason.”

232. On that basis these proceedings in their entirety fall to be dismissed.

233. Given the view I have just expressed, I will try to address the remaining grounds briefly.

GROUND 2 - DIRECTION INVALIDATED BY ULTRA VIRES CE RECOMMENDATIONS

234. Voyage asserts that the Ministerial Direction is invalid as it required the Greenpark Lands to be zoned for Enterprise and Employment as recommended by the CE Draft Plan Report of 26 November 2021 and the CE MA Report of 10 May 2022. It says that, as particularised in the grounds pleaded against LCCC, (i.e. Grounds 11 and 14) those recommendations were made ultra vires, inter alia: because they were made in breach of fair procedures and s.12 PDA 2000; failed to take into account relevant considerations; failed to exclude irrelevant considerations; were irrational and/or unreasonable and/or not evidence-based. In its written submissions Voyage relies for purposes of Ground 2 on its submissions as to Grounds 8 and 15.

235. The State asserts that the Ministerial Direction is not “premised” on the CE Draft Plan Report or the CE MA Report. The Minister is entitled to have regard to such reports and to any recommendations therein but the exercise of his powers are not predicated on a prior consistent recommendation by the CE. Any invalidity of those reports does not impair the lawfulness of the Direction.

236. First, as Ground 2, as advanced, overlaps and/or is dependent on Grounds 8, 11, 14 and/or 15, and as for the reasons set out elsewhere in this judgment, those other grounds fail, Ground 2 fails. Second, I

accept the State’s position that the Ministerial Direction is not “premised” on the CE Draft Plan Report or the

CE MA Report. Here again Voyage attempts a mechanistic application of the “domino theory” that any

earlier error inevitably justifies certiorari of the Ministerial Direction. Third, even if erroneous (which I do not

hold), those reports were rejected by the Members to whom they were addressed – who adopted MA 147. So Voyage was not prejudiced by them. Fourth, and as I have said, the zoning for Enterprise and Employment is in reality an effect of, not the purpose of, the Impugned Direction and correctly impugning that zoning does not imply Residential zoning. It might imply that the land should go unzoned but Voyage does not seek that outcome and, paraphrasing counsel for the Minister, complaining about the Enterprise and Employment zoning gets Voyage nowhere it wants to go – it’s looking for Residential zoning.570

Transcript Day 2 pp133 - 135.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

GROUND 3 – DIRECTION VOID FOR WANT OF REASONS & UNCERTAINTY

G3 - VOYAGE POSITION - REMAINING ELEMENTS

237. Ground 3 is only partly pursued.571 To avoid confusion I set out what remains. I have edited it for clarity without changing meaning.

238. Core Ground 3 asserts that: “[t]he Minister failed to give any or any adequate reasons for the Direction and in particular for the requirement to reinstate the Enterprise and Employment Zoning in respect of the Greenpark lands referred to under MA No. 147 and/or the decision is void for uncertainty.”

239. The remaining particulars of Ground 3 assert, as to §II of the Impugned Direction’s Statement of Reasons, that:

• §4. The Minister erred in law and fact in concluding that no DPJT was done as to the Greenpark lands. That conclusion appears to have been based on the OPR’s incorrect statement in its s.31AM(8) notice to the Minister that New Residential zoning of the Greenpark lands had failed the DPJT done by LCCC.

• §7. It states that no or no adequate reasons or explanations of proper planning and sustainable development had been given as to:

o why the lands were zoned for residential use; and o how this zoning is consistent with an overall strategy for the proper planning and sustainable development of the area.

• The Minister does not identify who did not provide any or any adequate such reasons or explanations.

• The Minister’s reasons lack precision and are inadequate.

240. Ground 3 §8 also remains, but I will address it with Grounds 10 and 6.

241. Voyage, wisely in my respectful view, abandoned the assertion that §II of the Impugned Direction’s Statement of Reasons was void for uncertainty on the basis that the reference to “significant lands” being zoned was vague as to whether it referred to the MA 147 Lands.

242. Voyage, in submissions, purport to add the following assertions to their particulars of Ground 3: that

• The Minister failed to give proper reasons for the requirement to reinstate the Enterprise and Employment Zoning of MA 147 lands.

• The Members gave reasons for their decision.

Voyage Property did not pursue §§3, 5, 6, and 9 of the particulars of Ground 3.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

G3: STATE & OPR POSITION

243. The allegation that the Minister erred in criticising the Members’ reasons is not pleaded. Pleading apart, that criticism was rational and lawful.

244. Ground 3 mischaracterises the nature and purpose of the Direction. The "reinstatement" of the Enterprise and Employment zoning was a consequence of, not the purpose of the Direction. Its purpose was the removal of a "highly vulnerable" zoning from a Flood Zone A and B area. Thereafter the zoning of the area was not material to the Direction provided the area was zoned either for "water compatible" uses or for uses which passed the Justification Test.

245. The Minister stated adequate reasons in his s.31(3)&(4) Notice of his intention to issue a Direction. Voyage’s submission of 19 August 2022 engaged with and disagreed with those reasons but asserted no incapacity to understand them. The Minister considered and agreed with the CE Report of 7 September 2022 on the draft direction and the OPR’s s.31AN(4) Recommendation of 28 September 2022 to Issue a Direction. Both specifically addressed the Voyage submissions as to MA 147 and the latter also explained and contextualised OPR’s reasons for its recommendation. The Minister, in the Direction, agreed with that OPR recommendation.

G3: DECISION

246. The pleaded Core Ground 3 – of which the particulars are, or at least are supposed to be, an elaboration as opposed to the introduction of new or additional grounds – is that the Minister failed to give any or adequate reasons for the Direction’s requirement to reinstate the Enterprise and Employment Zoning. I accept the Minister’s submission that this mischaracterises the purpose of the direction. I have earlier:

• Accepted the State’s submission that the real nature and purpose of the Direction lay in the removal of the Residential zoning and its resultant zoning thereafter, whether for water-compatible uses or less flood-vulnerable uses, was not material to the Direction. In substance, the reinstatement of the Enterprise and Employment zoning was a consequence of the Direction but not its purpose – it was an effect, not a cause.

• Said that this position is in effect mirrored by Voyage’s true anxiety in the proceedings – which is not to quash the Enterprise and Employment zoning (a means not an end) but to positively achieve a Residential zoning.

• Said as to Ground 15 that there would be no purpose, by reference to Voyage’s objective of Residential zoning, in quashing and remitting the Impugned Direction by reference to any deficiency in the DPJT of Enterprise and Employment zoning and that assuming deficiency in the DPJT of Enterprise and Employment zoning, I would refuse certiorari on discretionary grounds.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

247. I take an analogous view of Ground 3, as to the reasons for reinstatement of the Enterprise and Employment zoning, to that which I took of Ground 15 as to any deficiency in the DPJT of Enterprise and Employment zoning. Even assuming any deficiency of reasoning, I would refuse certiorari on discretionary grounds. It is not the presence of Enterprise and Employment zoning that is Voyage’s true complaint – it is the absence of Residential zoning. That consideration alone suffices to dismiss this aspect of Ground 3.

248. However, that consideration aside, yet viewing Enterprise and Employment zoning as a consequence, not an end, of the Direction and remembering both that the adequacy of reasons is about enabling an affected person to understand the decision and that a reason is not inadequate merely because it fails to convince such a person or, even, is incorrect as a matter of fact, I ask myself the “stand back” question: “what the decision is fundamentally saying?”572 It seems to me that the answer is obvious and adequate: Residential zoning of the MA 147 Lands is inappropriate by reason of flood risk and they fail to display, as to Residential use, the exceptionality contemplated by the Sequential Approach (and, for that matter, the DPJT) – not least as the quantum of residentially zoned land elsewhere suffices to meet housing requirements. The main reason for the Direction on the main issue is clear and is adequate in law.

249. Ground 3 §7 appears to me easily decided. The only criticism pleaded with adequate particularity is the Minister’s alleged failure to identify in the Direction the decision-maker whose reasons he considered inadequate. The criticism, which may be merely my personal view, that the active rather than the passive tense should be used where at all possible as it tends to clarity (“John crossed the road” is more informative

than “the road was crossed”) is mild here. In context, there is no mystery. The Minister’s criticism is clearly

directed at the Development Plan as adopted by the Members of LCCC and hence to the reasons and explanations those Members in their corporate capacity as LCCC exercising their reserved function of adopting that Plan and in, as here relevant, zoning the MA 147 lands for residential use. The Minister’s allegation is against the Members. In my view, the assertion that “the Minister does not identify who it is contended did not provide any or any adequate reasons” is without substance. Counsel for Voyage was wise to say he was not making a big deal of this point.573

250. I agree that the allegation that the Minister erred in criticising the Members’ reasons is not pleaded.

251. For these reasons I reject Ground 3.

572 O’Donnell & Ors v An Bord Pleanála [2023] IEHC 381 §54; St Margaret’s Recycling v An Bord Pleanála [2024] IEHC 94 §57; Moran v An Bord Pleanála

[2025] IEHC 510 at 13.

Transcript Day 2 p27.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

GROUND 7 – MINISTER ERRED IN CONCLUDING DEVELOPMENT PLAN LACKED OVERALL STRATEGY

252. Ground 7 reads: “[b]y reason of all of the foregoing grounds directed against the Minister, it can be concluded that the Minister erred in law and in fact in concluding that the Development Plan failed to set out an overall strategy for proper planning and sustainable development.” The pleaded particulars consist merely in referral back to the particulars of those earlier grounds. Voyage made no written submissions on Ground 7. Its entry in the Statement of Case asserts that:

• The Minister erred in law and in fact in concluding, in §IV of the Impugned Direction and in light of the matters referred to in §§I to III of the Direction, that the Development Plan failed to set out an overall strategy for proper planning and sustainable development.

• The Grounds pleaded against the Minister demonstrate the invalidity of the conclusions and/or matters on which §§I to III (and in turn, §§IV) are based.

253. Ground 7 is clearly parasitic on the other grounds pleaded against the Minister. As they fail, it fails.

254. It appears to me that Ground 7 is also governed by the Dublin Airport Noise Case, in which the “centre of gravity” of the OPR’s view consisted, as it does in this case, of breach of the NPF. Humphreys J said: “[m]uch else follows from that – for example that was the basis of the OPR view that there was not an overall strategy for proper planning and sustainable development. So it makes sense to look at that first and foremost. That is an independent ground, so if the OPR and Minister are right on that, we don't need to go further.”574 I refer also to McCarthy Meats to similar effect.

GROUNDS 10, 6 & 3§8 LCCC FAILED TO ADVISE OPR OF ALL MEMBERS’ REASONS FOR ZONING SUBJECT LANDS FOR RESIDENTIAL USE MINISTER FAILED TO CONSIDER ALL MEMBERS’ REASONS FOR ZONING SUBJECT LANDS ‘NEW RESIDENTIAL’

255. For the avoidance of doubt I set out Ground 3§8 in full:

“Further, insofar as the Direction states that “No or no adequate reasons or explanations relating to the proper planning and sustainable development of the area have been provided to explain why the lands have been zoned in such a way and how this approach is consistent with an overall strategy for the proper planning and sustainable development of the area”, and in so far as this is aimed at the elected members, which is uncertain in terms of the vague wording of the Direction, the Minister did not receive all of the reasons furnished by the elected members for rejecting the recommendation of the Chief Executive on MA No. 147, as these were not all furnished to the Minister by Ms. Maria Woods of LCCC, when sending the notice to be issued by the Chief Executive to the OPR under Section

31 AM of the 2000 Act. As a consequence, the omitted reasons were also omitted from the Notice issued by the OPR under Section 31 AM to the Minister. Therefore, the conclusion that the Minister reached, which is set out in his Statement of Reasons is in breach of fair procedures and/or Section

§128.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

31AM of the 2000 Act and failed to take account of relevant considerations, namely the omitted reasons of the elected members, as a consequence of which the Direction was invalid.”

256. By Ground 10, Voyage says that LCCC breached s.31AM(6) PDA 2000575 in failing to furnish to the OPR, by its letter of 23 June 2022, the Members’ seven reasons, and/or all of those reasons, for not complying with the OPR’s recommendations and for proceeding with Residential zoning of the Greenpark Lands via MA 147 against the CE’s recommendation of 10 May 2022. By Ground 6, Voyage says that the OPR, in its s.31AN(4) Recommendation to Issue a Direction, did not refer the Minister to all of the Members’ reasons and so, in breach of fair procedures, the Minister did not consider all those reasons and, in turn, give reasons for their rejection. However, in its written submissions Voyage addressed this issue on the basis, correct in principle, that if Ground 10 succeeds, Ground 6 follows.

257. I have in effect, already explained, earlier in this judgment why Ground 10 fails.576 I have emphasised that while s.31AM(6) permits a CE to summarise members’ reasons in its letter to the OPR, that summary must fairly, impartially, accurately and in substance completely notify the OPR of the Members’ actual reasons for their decision. I have explained why the OPR may not simply refuse to consider credible evidence that members’ reasons for their decision in fact differed from those stated in the s.31AM(6) notice. Not least the members’ minutes of the meeting, approved after the s.31AM(6) Notice is sent, may record reasons which differ from those in the s.31AM(6) Notice. However, in point of fact, the Members in this case later approved minutes, including reasons, in precisely the terms as the s.31AM(6) Notice. I have also explained why, on the facts of the case, I have concluded that the OPR was adequately in possession of the Members’ reasons for the adoption of MA 147 and that that Voyage was not substantively prejudiced in this regard.

258. Ground 6 in effect asserts that whatever about the OPR, the Minister was not adequately in possession of the Members’ reasons for the adoption of MA 147. Voyage’s difficulty here is that even had that been so, it had the opportunity provided by the iterative process to both draw the Minister’s attention to and to remedy any deficit in that regard. It there was a defect, Voyage was by statute given the chance to repair it. And as the chronology above records, Voyage/TPA not merely had but availed of the opportunity to make a lengthy (12 pages) and detailed submission of 19 August 2022 to LCCC opposing, in often trenchant terms, the OPR’s analysis of MA 147 and its draft ministerial direction. It also referred the recipient back to its September 2021 submission (57 pages plus voluminous appendices).

259. In its submission of 19 August 2022 Voyage set out at length and in detail its objections to the draft direction. Voyage canvassed the Members’ reasons and complained that, in its view, the OPR did not adequately consider them. Having had its compliant in this regard rejected by both LCCC and the OPR it now had its opportunity – indeed, its right – within the statutory process to make, for conveyance to the Minister,

575 (6) A planning authority shall notify the Office within 5 working days of the making of a development plan or a variation to a development plan and

send a copy of the written statement and maps as duly made and where the planning authority—

(a) decides not to comply with any recommendations made in the relevant report of the Office, or

(b) otherwise make the plan in such a manner as to be inconsistent with any recommendation made by the Office,

then the chief executive shall inform the Office accordingly in writing, which notice shall state reasons for the decision of the planning authority.”

Under heading: “LCCC Reasons for Zoning Greenpark Lands Residential & their Communication to OPR & Minister”.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

its complaint that LCCC had inadequately conveyed the Members’ reasons to the OPR and that they had not been adequately conveyed to the Minister. But it did not make that complaint. Nor did it purport to make up any such deficit.

260. In turn, the CE under s.31(8)&(9) PDA 2000 on 7 September 2022 reported, inter alia directly to the Minister, summarising that Voyage/TPA Submission of 19 August 2022. Notably, Voyage does not criticize that summary, which runs to about 2½ pages and also provides links to the earlier CE Reports on Voyage submissions on the Draft Plan and the material alterations. Further, the OPR’s s.31AN(4) Recommendation to the Minister of 28 September 2022 explicitly summarizes what it considers to be the “additional reasons” submitted by Voyage/TPA (i.e. in the Submission of 19 August 2022) and Voyage does not, in these proceedings, impugn that summary either.

261. Accordingly, Voyage/TPA clearly had, in this submission of 19 August 2022, the opportunity to remedy any deficit in the Minister’s knowledge of the Members’ reasons and did not take it. In any event, more importantly and whatever about the Member’s reasons, Voyage, as their actual author, clearly had and availed of the opportunity in August 2022 to again submit its reasons for Residential zoning of the Subject Lands. It can only be concluded that any such deficit was overtaken by that opportunity of which Voyage availed. Again Voyage’s submission is in effect based on a flawed, mechanistic, application of a domino theory that all earlier flaws in the process (assuming there were any) fatally and irreparably ruin the entire process. A very purpose of iterative process is the possibility of repair.

262. I accept the State’s submission that Ground 10 does not go to the validity of the Ministerial Direction having regard to the statutory process as a whole. I accept the State’s argument as to the complaint Voyage now makes that LCCC had inadequately conveyed the Members’ reasons to the OPR and that they had not been adequately conveyed to the Minister, Voyage ought to have made that complaint in its Submission of

19 August 2022 and that failure to avail of the statutory process weighs heavily against the grant of

discretionary relief in judicial review as to that issue of the Minister’s consideration of the Members’ reasons

for adopting MA 147.577

263. Voyage cite Ashbourne Holdings578 in resisting an argument that by failing in their submission of 19 August 2022, take the opportunity to remedy any deficit in the Minister’s knowledge of the Members’ reasons and to assert that the Members had done a DPJT of the Subject Lands for Residential zoning, which test they had passed, Voyage/TPA is estopped from complaining of that deficit now. I need not decide that estoppel issue as I can consider the same factual matrix through the lens of discretion. Specifically to Grounds 10, 6 and 3 §8, I have said that failure to avail of the statutory process weighs heavily against the grant of discretionary relief in judicial review. Here the assertion that the Members had done a DPJT of the subject lands for Residential zoning and it had passed was a salient argument by Voyage/TPA in seeking certiorari. Yet they had ultimately failed to make it in the process. It is not the same point as a failure to

577 I also canvassed these issues in the chronology above in my “Notes on TPA/Voyage Submission opposing Draft Ministerial Direction – 19 August

20222 and cited Transcript Day 2 pp129, 131, 156 – 162 and 170 – 179.

Ashbourne Holdings v An Bord Pleanála & Cork County Council [2003] 2 IR 114.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

exhaust remedies prior to judicial review but there is some analogy. Humphreys J in Baile Bhruachlain579 was concerned with a case in which landowners disappointed by a zoning decision criticised, inter alia, the CE’s summary, in his report to the members, of their submissions. The ratio of the decision on that issue was that their criticism was rejected: the CE’s summary was adequate.580 But as an alternative581 Humphreys J observed582 that if the landowners had any real grievance about the summaries they could have done a lot about it at the time. The obvious thing to have done would have been to themselves contact the members, informing them of content of their submissions which, in their view, the CE had inadequately summarised. But “they did nothing” and “In such matters, the law helps those who help themselves”.583

264. For these reasons and if needs be as a matter of my discretion, I dismiss Grounds 10 and 6. The failure of Grounds 10 and 6 implies the failure of Ground 3 §8.

A GENERAL DISCRETIONARY MATTER

265. It seems to me that the reasoning above as to refusal of relief on a discretionary basis is in fact general to the case. Voyage’s assertion that the Members had done a DPJT of the subject lands for residential zoning and it had passed was salient in seeking certiorari. Yet they had ultimately failed to make it in the process.

GROUNDS 11 & 14 - LCCC MISINTERPRETED RSES/LSMASP AS TO WHETHER THE GREENPARK LANDS ARE STRATEGIC EMPLOYMENT LANDS FAILED TO GIVE REASONS FOR ZONING SUBJECT LANDS DESPITE ERROR IN TREATING THEM AS A STRATEGIC EMPLOYMENT SITE OR FOR WHY THEY WERE SO TREATED

266. Voyage impugns the CE’s Draft Plan Report of 26 November 2021 and the CE’s Material Alterations Report of 10 May 2022 as legally invalid and ultra vires on the bases that, in recommending Enterprise and Employment zoning of the Subject Lands, the CE:

• Erred in law by misinterpreting the RSES and LSMASP as identifying the Greenpark Lands as strategic employment lands.

• Acted contrary to s.12 PDA 2000 and in breach of fair procedures and failed to adequately provide effective public participation in the Plan-making process, in that the Report of 10 May 2022 on MA 147:584 o Mentions the Voyage/TPA Submission of 4 April 2022 that LCCC and JBA had misinterpreted the RSES and LSMASP as identifying the Greenpark Lands as a strategic employment site and refers to Voyage’s Lisney Report.

o Fails to indicate whether the CE agreed or disagreed with this submission.

579 Baile Bhruachlain Teoranta v Galway County Council [2024] IEHC 604.

§§62 – 68.

581 §69 “Even if I am wrong on all that, and even if, counter-factually, there was a legal breach, there are two reasons why certiorari isn’t appropriate.”

582 §73.

583 Humphreys J cited Benjamin Franklin and Euripides to the effect that the ancient Greek gods took a similar approach.

pp56-59 of this report.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

o Thereby breached the duty to give reasons.

267. LCCC says that:

• Those reports are not justiciable. They were not themselves decisions and do not represent the views of a decision-maker.

• The Members’ decisions which the reports informed – more accurately by which they were rejected - were the Members’ decisions, favourable to Voyage, which zoned the Subject Lands for Residential use.

• The CE in those Reports addressed Voyage’s submissions in the Plan-making process and explained the basis for his recommendation that the Subject Lands be zoned Enterprise and Employment not Residential - including the fact that the lands were in Flood Zone A and B.

G11&14: DECISION

268. Grounds 11 and 14 are dismissed. Ultimately they are a sideshow to the proceedings. In substance they ventilate the assertion that the Greenpark Lands are not in the DRSEL. I have already both accepted the factual accuracy of that assertion and explained why it does not assist Voyage.

269. I would not rule out the justiciability of any statutory reports. But viewing the process as a whole, it is clear that:

• LCCC’s Members accepted Voyage’s submission and decided to zone the Subject Lands as Residential so no question of failure by LCCC to give reasons for a decision adverse to Voyage arises. Put another way, as the Members rejected the reports any such error was harmless. So no issue of fair procedures arises.

• The OPR and the Minister accepted what I have interpreted as being the Executive’s and JBA’s view, by reference to OPR 57 and in accordance with the Flood Risk Guidelines, that if the Subject Lands are to be zoned for development they can be, and so are to be, zoned for less flood-vulnerable Employment and Enterprise uses in preference to highly flood-vulnerable Residential uses. That is, in the end, at the core of the Impugned Direction and is a reason both legally valid and easy to understand.

It bears recollection that one is not entitled to reasons with which one agrees or finds convincing. Disagreement with the substance of the reasons given does not, per se, render them unlawful. That Voyage disagrees with that reason is beside the point of its adequacy in conveying why the decision “went the way it did” – Connelly, Sherwin, Duffy, Coolkill and Larkin.585 So, again, no issue of inadequacy of reasons or fair procedures arises. Accordingly I dismiss Grounds 11 and 14.

270. I also dismiss these Grounds, if needs be on a discretionary basis, as incapable of achieving, even indirectly, the Residential zoning which is Voyage’s true aim and/or as based in the erroneous mechanistic

585 Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752; Sherwin v An Bord Pleanála [2024] IESC 13; Duffy v ABP & McDonagh [2024] IEHC 558;

Concerned Residents of Coolkill v An Bord Pleanála & Midsal Homes [2025] IEHC 265; Larkin v Roscommon County Council [2025] IEHC 250.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

‘falling dominoes’ view of the statutory process I have described above. The idea that this matter should be remitted to the stage in the process at which either of these reports was issued is, in light of the reason for the Direction I have just expressed, entirely disproportionate.

GROUND 9 – DEVELOPMENT PLAN INVALID AS MINISTER’S DIRECTION INVALID

271. This is a technical ground (I do not criticise it on that account) designed to ensure as against LCCC that the 2022 Development Plan as amended by the Minister’s Direction would not survive the invalidity of the Minister’s Direction. As I hold the Minister’s Direction valid, Ground 9 fails.

GROUND 1 – DIRECTION INVALID AS OPR’S S.31AM(8) NOTICE INVALID

272. Voyage pleads that the Ministerial Direction contravenes s.31 and/or s.31AM PDA 2000 as it was premised on the OPR’s s.31AM(8) Notice of 15 July 2022 recommending a draft ministerial direction which s.31AM(8) Notice was itself ultra vires and invalid. Voyage relies on the other Grounds pleaded as to that Notice and in its written submissions Voyage does not elaborate on Ground 1.

273. The Minister and the OPR say:

• The s.31AM(8) Notice is valid on the bases set out as to Grounds impugning its validity.

• Voyage has failed to impugn the OPR’s s.31AN(4) Recommendation to the Minister dated 28 September 2022 on foot of which the Ministerial Direction was ultimately made.

• The Minister was entitled to treat the OPR Notices and Recommendations as valid and in compliance in particular with ss.31AM and 31AN and to agree with the OPR’s Recommendations.

• S.10(8) PDA 2000 precludes any presumption in law that land zoned in a development plan shall remain so zoned in any later development plan.

G1: DECISION

274. As the foregoing text indicates, Ground 1 is essentially parasitic on other grounds. As I have dismissed all other grounds it follows that Ground 1 is to be dismissed also.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

CONCLUSION

275. These proceedings will be dismissed for the reasons stated above. While I have dismissed all grounds on which relief was sought, my decision rests primarily and independently on my dismissal of Grounds 5, 8 and 15. Without taking from the detail set out above, issues that characterise the dismissal of the proceedings include:

• That Voyage never demonstrated on a solid evidence base that the Avoidance principle of the Sequential Approach or Criterion §2(v) of the DPJT had been satisfied as to the Subject Lands - it never demonstrated that insufficient lands had been residentially zoned elsewhere to meet the housing targets set by the core strategy of the Development Plan. That is illustrated by its abandonment of Ground 13. On that view, Residential zoning is inevitably contraindicated, by reference to the legal necessity that a development plan be consistent with NPO 57, as the requirements of the Sequential Approach and DPJT were not demonstrated by Voyage, on a solid evidence base, to have been met. No such demonstration was made - whether to the LCCC Executive, the LCCC Members, the OPR or the Minister.

• Sounding in discretion as to remedy (counsel for Voyage accepted that the issue sounded against Voyage),586 that on its central point (which, in any event, I do not accept in substance) that the Members had done, and the MA 147 Lands had passed, a DPJT for Residential zoning, and as to its complaint that this alleged fact had not been conveyed to the Minister as a reason for the Members’

decision to zone the Subject Lands for Residential use, Voyage had failed to avail of its statutory opportunity, in an iterative process designed to progressively improve the quality of decisionmaking, to make that point in its submission of 19 August 2022 to LCCC for conveyance, by its CE report, to the Minister.

• Voyage’s attack on the Enterprise and Employment zoning of the Subject Lands is on the form and effect rather than on the substantive purpose or end of the Impugned Ministerial Direction – which was to remove the Residential zoning of the Subject Lands.

276. I provisionally consider that there should be no order as to costs. The case will be for mention on 12 January 2026 for final orders.

16/12/25

Transcript Day 3 p199.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

GLOSSARY

Term Meaning CE Chief Executive (of LCCC). CE Draft Plan Report CE Report to Members on Draft Plan Consultation & Updated JBA SFRA, 26 November 2021. CE MA Report CE Report to Members on Public Consultation on Material Alterations, 10 May 2022. DMJT Development Management Justification Test - Flood Risk Guidelines.

A sub-type of PMJT. DPJT Development Plan Justification Test. It is sub-type of PMJT. It is described in Box 4.1 of the Flood Risk Guidelines. DRSEL Dock Road Strategic Employment Location – Identified in the MASP. EPO Environmental Protection Objective.

These are applied in SEA by Schedule 2B PDR 2001. It requires that an environmental report identify: “(e) the environmental protection objectives, established at international, European Union or national level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation”. Flood Risk Guidelines Planning System and Flood Risk Management Guidelines for Planning Authorities (2009). Flood Zone A High probability of flooding - Flood Risk Guidelines. Flood Zone B Moderate probability of flooding - Flood Risk Guidelines. Flood Zone C Low probability of flooding - Flood Risk Guidelines. FRA Flood Risk Assessment - Flood Risk Guidelines. Greenpark Lands The former Greenpark Racecourse, most of which (47 ha) Voyage owns. Greenpark Prepared in 2020, it encompassed Voyages’ 47 ha and broadly envisaged an office Masterplan campus in the north/west of the lands and residential development in the south/east.

Broadly, the SHD Site and the MA 147 Lands, including the Subject Lands, were to comprise the residential element. It was accompanied by a SSFRA by RPS which included a DMJT but not a DPJT. HTP Higher Tier Plan. This is a term relative to the task in hand. See EPO. JBA Consulting Engineers to LCCC – authors of SFRAs of June 2021, November 2021 and March 2022. JT Justification Test - Flood Risk Guidelines (see also DMJT, DPJT, PMJT). LCCC Limerick City and County Council.

LDFS Shannon Foynes Port Company - Limerick Docklands Framework Strategy. Limerick 2030 Limerick 2030: An Economic and Spatial Plan for Limerick.

Published 2013 and updated periodically it was prepared by KPMG and O’Mahony Pike, initially for Limerick County Council and Limerick City Council and latterly for LCCC.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Term Meaning The June 2021 version was included in the Draft Plan. The June 2022 version was included in Volume 6 of the 2022 Development Plan. Limerick-Shannon Limerick-Shannon Metropolitan Area Strategic Plan. MASP / LSMASP Part of the Southern Region RSES MA 147 Material Alteration 147 – to amend the Draft Plan by zoning 14.7 hectares of the Greenpark Lands for New Residential use instead of the Employment and Enterprise use envisaged in the Draft Plan.

The Members of LCCC made the Development Plan 2022 accordingly.

The Minister’s Impugned Direction required the reversal of MA 147 such that the MA

147 Lands would be zoned for Employment and Enterprise use instead of Residential. MA 147 Lands The land described in MA 147. See Figure 1 above.

MA 147 describes it as comprising 14.7 hectares. That land is elsewhere described as comprising 19.55 hectares. Nothing seems to turn on that discrepancy and the MA

147 are clearly identifiable in the relevant maps. It consists, broadly of:

• A southern strip, formerly zoned for open space and incorporated in the SHD Site. It is of little relevance in the case.

• A northern area, which can be considered in two parts:

o Some southern parts are incorporated in the SHD Site.

o The remainder, north of the SHD Site and apparently comprising about 10 hectares, comprises the “Subject Lands” – with which these proceedings are primarily concerned. Members The elected members of LCCC. NPF National Planning Framework. NPO A National Planning Objective of the NPF. OPR Office of the Planning Regulator. OPR MA In its Submission of 11 April 2022 to LCCC on the Material Alterations, the OPR made Recommendation #4 Recommendation #4, that LCCC make the 2022 Development Plan without multiple listed MAs - including MA 147. OPW Office of Public Works. The lead agency for flood risk management in Ireland. PMJT Plan-Making Justification Test – Flood Risk Guidelines. DPJT is a sub-type. PSFRMG The Flood Risk Guidelines. i.e. the Planning System and Flood Risk Management Guidelines 2009. This acronym is not used in this judgment but is used in some of the case papers. Recommendation #4 OPR MA Recommendation #4. RPS RPS Ireland Limited (NI), Environmental Consultants to Voyage – authors of FRAs. RSES Regional Spatial & Economic Strategy (for the Southern Region 2020). S.31AM(6) Notice Notice issued by LCCC CE to OPR dated 23 June 2022 pursuant to s.31AM(6) PDA 2000.

Voyage Property v Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696

Term Meaning It advised the OPR of the Members’ adoption of the 2022 Development Plan and of their reasons, in so doing, for zoning the MA 147 for New Residential use and thereby rejecting the recommendations of the OPR and CE in that regard. S.31AM(8) Notice Notice issued by OPR to the Minister dated 15 July 2022 pursuant to s.31AM(8) PDA 2000.

For reasons set out therein, it recommended that the Minister issue a Direction in terms of an attached draft direction, inter alia, reversing MA 147. It prompted public consultation on the terms of the draft direction. S.31AN Notice Notice issued by OPR to the Minister dated 28 September 2022 pursuant to s.31AN(4)

PDA 2000.

It responded to the issues raised in the public consultation on foot of the s.31AM Notice and recommended that the Minister issue an attached proposed direction in terms of what became the Ministerial Direction. SEA Strategic Environmental Assessment. Sequential Approach As the phrase implies this approach, prescribed by the Flood Risk Guidelines, to determining whether land uses inappropriate to a flood zone may nonetheless be acceptable there, prescribes criteria to be sequentially applied. It can be summarised as Avoid, Substitute, Justify, Mitigate.587 SFPC Shannon Foynes Port Company. SFRA Strategic Flood Risk Assessment - Flood Risk Guidelines. SHD Strategic Housing Development within the meaning of the 2016 Act. SHD Site This Site, in the south-east of the Greenpark Lands, has SHD planning permission. It is not controversial in these proceedings. It includes the southern part of the MA 147 Lands and parts of the northern part of the MA 147 Lands. The area earmarked for housing is largely, in Flood Zone C. See Figure 1 and legend above. Southern Region Southern Region Regional Spatial & Economic Strategy – prepared by the Southern RSES Regional Assembly pursuant to Part II Chapter III PDA 2000.

Inter alia, it contains the LSMASP, which designates the DRSEL. SSFRA Site Specific Flood Risk Assessment - Flood Risk Guidelines. Strategic A Strategic Environmental Assessment is the name generally used to denote the Environmental environmental assessment required by Directive 2001/42/EC on the Assessment of Assessment the Effects of Certain Plans and Programmes on the Environment – which is known as the “SEA Directive”. It is transposed to Irish Law by the SEA Planning Regulations.588 Subject Lands The lands the zoning of which is controversial in these proceedings.

They consist of that part of the MA 147 Lands which lies north of the SHD Site and apparently comprise about 10 hectares. See Figure 1 and legend above. TPA Tom Phillips & Associates, Planning Consultant to Voyage.

587 See figure 2 above.

588 S.I. No. 436 of 2004 (the Planning and Development (Strategic Environmental Assessment) Regulations 2004), as amended by S.I. No. 201 of 2011

Planning and Development (Strategic Environmental Assessment) (Amendment) Regulations 2011.