High Court dismisses challenge to development plan objective citing democratic authority and workable relief requirements.

[2026] IEHC 282

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2023.0000373]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

MKN PROPERTIES LIMITED AND J. MURPHY (DEVELOPMENTS) LIMITED

APPLICANTS

AND

FINGAL COUNTY COUNCIL

RESPONDENT

Date of impugned decision: 22 February 2023

Date proceedings commenced: 14 April 2023

Date of main hearing: 22 April 2026

Date draft judgment circulated: 28 April 2026

JUDGMENT of Humphreys J. delivered on Friday 8 May 2026

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

(Unreported, Supreme Court, 21 December 2023) and McGarrell Reilly Homes Ltd & Anor. v. Meath

County Council [2023] IESC 40, [2023] 12 JIC 2110 (Unreported, Supreme Court, 21 December

2023), Hogan J., writing for a unanimous seven-judge Supreme Court, rejected two challenges to

development plan provisions, holding, or citing approvingly propositions to the effect, among other

things, that any land-use objective is “liable potentially to be changed via this democratic process

at some future stage when the next development plan is adopted”, that this “does not entitle [an]

applicant to compensation even though the value of [the] land may have been reduced as a result”,

that “the power to make a development plan is [a] function of the elected members”, that [w]hen

the Council exercises these ... powers, it acts as of necessity as a deliberative assembly”, that “any

court must be very slow to interfere with the democratic decision of the local elected representatives

entrusted with making such decisions by the legislature”, that [t]hese sentiments now apply with

even greater force following the subsequent adoption of Article 28A.1 of the Constitution in 1999

with its recognition of ‘the role of local government in providing a forum for the democratic

representation of local authorities in exercising and performing at local level powers and functions

conferred by law’”, that “one key object of ... core strategy provisions is to ensure that development

plans take proper account of projected population growth in any given areas”, that “[t]his in turn

implies that the promiscuous and unlimited rezoning of land for residential land – which in the past

was often an unhappy feature of the entire development plan process – should no longer be

permitted”, and that “the elected members were empowered by law to make a democratic decision

regarding the scope of the development plan and this they duly did”. It is the function of a trial

court to apply such principles here. While I appreciate the sincerity of the applicants as landowners

seeking to develop their properties, and the very considerable skill and subtlety mobilised in

presenting the case on their behalf, the primary legal question here is whether any sufficiently

convincing legal reason has been demonstrated to displace the foregoing.

Geographical context

2. The challenge involves objections to two elements of the current Fingal Development plan

(https://www.fingal.ie/development-plan) regarding lands at Fosterstown. The lands are

approximately adjacent to the following: https://maps.app.goo.gl/tjPEbaPnHyBpESrv7.

Facts

3. The applicants, MKN Properties Limited and J. Murphy (Developments) Limited, challenge

the decision of the respondent, Fingal County Council, made on 24 February 2023 to make the Fingal

County Development Plan 2023-2029 (2023 CDP) insofar as the council decided to (i) change the

zoning on part of the applicants’ lands, situate at Fosterstown, Swords, County Dublin, from “RA -

Residential Area” to “OS - Open Space” and (ii) adopt map-based objective no. 38, as inserted by

material amendment PA SH 8.5, in the development plan, in respect of those lands which sets a

density range of 110-115 units per hectare.

4. The applicants are property developers and owners of lands at Fosterstown, Swords, County

Dublin, which is within the functional area of the respondent. MKN Properties Limited owns

approximately 6 hectares of the lands, while J. Murphy (Developments) Limited owns 4.405

hectares.

5. The Fingal County Development Plan 2017-2023 (2017 CDP) outlined that the council

intended to adopt a series of masterplans as “an effective means of guiding new development and

providing essential social and physical infrastructure in a phased and sustainable manner”. These

Masterplans would:

“…consist of a written statement and a plan…indicating the objectives…for the proper

planning and sustainable development of the area to which it applies…”

6. Chapter 4, at objective 27, outlined that it was an objective of the council to prepare and

implement a masterplan for Fosterstown – the “Fosterstown Masterplan” (also marked on Map Sheet

8, MP 8.I).

7. A critical element of the case is that in May 2019, as part of the Swords masterplans,

the Fosterstown masterplan was made by the council. The Fosterstown masterplan contains

key green infrastructure objectives (which include the provision of high quality open space and

objectives seeking to preserve and enhance trees and hedgerows) and key built form objectives

(which include the provision of residential accommodation as a net density of 105-115 units per

hectare).

8. The draft Fingal County Development Plan 2023-2029 (draft CDP) was published on 24

February 2022. The draft CDP included objectives which sought to continue the implementation of

existing masterplans – including the Fosterstown masterplan (as did the adopted 2023 CDP).

9. The draft CDP provided that the land-use zoning objective applicable to part of the

Fosterstown Lands owned by the applicants, which had been zoned “RA - Residential Area” under

the 2017 CDP would change to “OS - Open Space”, as indicated by green shading on land-use zoning

Map Sheet 8. This reflected the approach/strategy for the proper planning and sustainable

development of the area set out in the Fosterstown masterplan.

10. The applicants, through their planning and development consultants, John Spain Associates

(JSA), each made a submission on the draft CDP to the council dated 12 May 2022 (under reference

numbers FIN-C453-1029 and FIN-C453-932 respectively), and sought the retention of the “RA -

Residential Area” zoning objective.

11. In June 2022, ministerial guidelines on development plans were adopted.

12. The chief executive prepared a report, dated 28 July 2022, on the submissions made to the

council on the draft CDP, which addressed submissions FIN-C453-1029 and FIN-C453-932, but

which did not recommend any changes to the land-use zoning policy in respect of the applicants’

lands as proposed on Map Sheet 8.

13. The elected members of Fingal County Council held a series of special council meetings in

September and October 2022. At a special council meeting on 13 October 2022, a member of the

council proposed motion no. 555, which proposed a material amendment inserting a map-based

local objective at Fosterstown which provided for a density of 110-115 dwellings per hectare. The

motion was premised upon a clear planning rationale.

14. At the meeting of 13 October 2022, Ms Roisin Burke, senior planner for the council, noted

that the density proposed was in line with the Fosterstown masterplan, and that the council would

continue to implement the masterplans and stated that a map-based objective was not

required/necessary in this instance (in her view).

15. The elected members resolved to adopt the motion.

16. On 11 November 2022, the proposed material alterations (PMAs) to the draft CDP were

published, and included inter alia, PMA PA SH 8.5, which sought to introduce a map-based objective

generally in the terms of the wording of motion no. 555.

17. On 21 December 2022, the applicants each made a submission in similar terms to the council

in response to PA SH 8.5 (under reference numbers FIN-C532-53 and FIN-C532-78, respectively),

which appended a letter of legal opinion prepared by McCann FitzGerald LLP in support of the

propositions advanced in the submissions.

18. The chief executive prepared a report on the material amendments and submitted this report

to the elected members on 15 January 2023, and recommended that the CDP be made without the

material alteration proposed.

19. On 21 February 2023, the elected members of the council considered certain motions in

relation to the PMAs to the draft CDP, including motions nos. 208 and 209 in respect of the proposed

adoption of material alteration PA SH 8.5.

20. Motion no. 209 to reject the chief executive's recommendation in respect of PMA PA SH 8.5

was put to a vote and the elected members passed the motion, with 16 councillors voting in favour,

13 against, and 7 abstaining.

21. The elected members resolved to make and adopt the development plan to include both (i)

the land-use zoning change and (ii) the map-based density objective.

22. On 22 February 2023, the elected members resolved to adopt the 2023-2029 CDP, which

took effect on 5 April 2023.

Procedural history

23. These proceedings were issued out of the Central Office on 14 April 2023.

24. The matter was opened on 17 April 2023 before Meenan J. and was adjourned to 19 June

2023.

25. The applicants filed written leave submissions on 14 June 2023.

26. The ex parte leave application was heard on 18 September 2023 by Kennedy J., who granted

leave on all grounds. The matter was adjourned to 14 November 2023.

27. On 27 September 2023, the applicants issued a notice of motion seeking certiorari of the

respondent’s decision in line with the order of Kennedy J. granting leave.

28. The matter was adjourned for mention on 14 November 2023 to the 24 January 2024. It

was indicated that there may be a change in solicitor for the applicants. The council also raised

queries about service of the pleadings.

29. The matter was adjourned on consent from time to time thereafter.

30. A notice of change of solicitor was filed on 25 March 2025.

31. The matter was adjourned on consent on 1 April 2025 to 13 May 2025.

32. On 26 May 2025, the matter was adopted into the Planning and Environment List.

33. The matter was adjourned generally on 20 June 2025.

34. The matter was listed on 3 November 2025, for a status update on the proceedings and was

adjourned to 17 November 2025.

35. On 1 December 2025, the matter received a hearing date of 22 April 2026.

36. On 20 March 2026 the applicants filed their written legal submissions.

37. On 23 March 2026, the matter was called over in the Planning and Environmental List.

38. On 31 March 2026, the applicants filed an affidavit exhibiting transcripts of relevant meetings

of the council.

39. On 16 April 2026, the council served its written legal submissions.

40. The matter was heard on 22 April 2026. Judgment was reserved at the end of that hearing.

I would like to record my thanks to all of the lawyers involved for their unfailingly courteous,

professional and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those instructed to convey such points, a

distinction that most certainly should be, and I believe generally is in fact, self-evident to all

concerned.

41. On 28 April 2026, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The rules of engagement in such a situation are that the draft is

without prejudice to the right of the court ultimately to issue a judgment in whatever form or with

whatever content it considers appropriate.

42. Any comments must be emailed to the court and uploaded to ShareFile in writing by the

notified deadline, and should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

(i) informing the court as to whether a formal judgment is required, and if so on what

issues;

(ii) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(iii) any typographical, factual or legal errors in the decision;

(iv) any redaction of personal information that the party wishes to request;

(v) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(vi) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(vii) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(viii) any other suggestions as to the wording (as opposed to substance) of the decision

if the proposed wording causes any significant issue for a party for any identified

reason.

43. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the specified period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are required to

positively confirm to the court the position including if they have no observations on the draft

legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a

concession which parties can engage with but must do so with immediate dispatch, discipline and

focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to

elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker

JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme

Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps “serious

error, to which lawyers are prone, to approach any such case on the tacit assumption that only

procedures which approximate to a criminal trial are fair, and anything which departs from that is

somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

44. Draft judgments are not public domain materials and, while they can be shared between the

lawyers concerned and their clients, subject to the following, it is inappropriate for any person to

refer to them for any purpose other than to assist the court in relation to the finalisation of the

formal judgment. Therefore anyone with information as to the text, content or proposed outcome

of any draft is required not to publish or transmit such information to others save solely by way of

private transmission for the legitimate purposes of assisting in the finalisation of the judgment and

subject to a similar restriction on any recipient. Trial participants should take reasonable steps to

keep drafts confidential. On this topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58,

[2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft

judgments is in the interests of the administration of justice; see also Baigent v. Random House

Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R.

(Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy

[2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey Vos MR; Davies

and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and

others [2022] EWCA Civ 368, [2022] 3 WLUK 291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler

LJJ. concurring); Itkin v. Wood [2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).

The contents of this paragraph constitute an immediately effective direction of the court to the

parties and anyone having notice of the draft judgment with effect from the date of circulation of

the draft.

45. The deadline for such comments from the parties was to be 16:00 on Tuesday 5 May 2026.

Relief sought

46. The reliefs sought are as follows:

“1. An Order of Certiorari by way of application for judicial review quashing the

Respondent’s decision of 22 February 2023 to indicate an area of zoning objective ‘OS’-Open

Space on Map Sheet 8 of the Fingal Development Plan 2023-2029, thereby having the effect

of de-zoning certain of the lands of each of the Applicants herein, in circumstances where

these lands, in their entirety, were zoned RA- Residential Area under the previous

Development Plan.

2. If necessary, an order of mandamus directing the Respondent to make the Fingal

Development Plan 2023-2029 without the change in zoning objective described at §1 above.

3. An Order of Certiorari by way of judicial review quashing the Respondent’s decision

of 22 February 2023 to adopt map-based objective no. 38, as inserted by material

amendment PA SH 8.5, in relation to Map Sheet 8 of the Fingal Development Plan 2023-

2029.

4. If necessary, an order of mandamus directing the Respondent to make the Fingal

Development Plan 2023-2029 without map-based objective no. 38, as inserted by material

amendment PA SH 8.5.

5. Such Declaration(s) of the legal rights and/or legal position of the Applicants and (if

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

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

6. A Declaration that Section 50B of the Planning and Development Act 2000, as

amended, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011

and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure

Campaign Limited v. An Bord Pleanála whereby in proceedings where the application of

national environmental law is at issue, it is for the national court to give an interpretation of

national procedural law which, to the fullest extent possible, is consistent with the objectives

laid down in Article 9(3) and (4) of the Aarhus Convention apply to these proceedings.

7. Further or other order.

8. Costs.”

Grounds of challenge

47. The core grounds of challenge are as follows:

“1. In making the Fingal Development Plan 2023-2029, the Respondent’s decision to

change the zoning objective of certain of the Applicants’ lands at Fosterstown, Swords,

County Dublin from zoning objective RA-Residential Area to OS-Open Space breached the

‘Development Plans, Guidelines for Planning Authorities’, June 2022 and as a result the

Respondent was in breach of its obligations pursuant to section 28(1A) of the Planning and

Development Act 2000 to have regard to ministerial guidelines, and to consider the policies

and objectives of such guidelines, and was also in breach of its obligations pursuant to

section 28(1B) insofar as it failed to provide any or any adequate reasons as to why the

policies and objectives of such guidelines could not be complied with and is therefore

unlawful, ultra vires, invalid and of no legal effect.

2. The Respondent’s decision to change the zoning of the Applicants’ lands set out at

Core Ground 1 is invalid, ultra vires, and of no legal effect in that it unreasonably, irrationally

and unjustly treated the Applicants’ land differently from other lands in the Swords area,

and there was an absence of any, or any adequate reasons provided for the difference in

treatment.

3. Insofar as the Respondent based its decision to change the zoning of the Applicants’

lands set out at Core Ground 1 above on considerations contained in non-statutory

masterplans, the Respondent took into account irrelevant considerations, failed to take into

account relevant considerations and was irrational and/or unreasonable.

4. In making the Fingal Development Plan 2023-2029, the decision to adopt map-based

objective no. 38, as inserted by material amendment PA SH 8.5, is inconsistent with

ministerial guidelines, and as a result the Respondent was in breach of its obligations

pursuant to section 28(1A) of the Planning and Development Act 2000 to have regard to

ministerial guidelines, and to consider the policies and objectives of such guidelines, and

was also in breach of its obligations pursuant to section 28(1B) insofar as it failed to provide

any or any adequate reasons as to why the policies and objectives of such guidelines could

not be complied with and is therefore unlawful, ultra vires, invalid and of no legal effect.

5. The decision of the Respondent to adopt map-based objective no. 38, as inserted by

material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 is invalid, ultra

vires, unlawful and of no legal effect because the Respondent failed to consider, whether

properly or at all, the proper planning and sustainable development of the Fosterstown area,

in breach of section 12(11) of the Planning and Development Act 2000 and failed to have

regard to relevant considerations.

6. The decision of the Respondent to adopt map-based objective no. 38, as inserted by

material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 in relation to

the Applicants’ lands unlawfully discriminated against the private property interests of the

Applicants, was irrational and unreasonable in that it applied different reasoning to factually

similar situations and failed to take into account relevant considerations.

7. The said decision to include map-based objective no. 38 was inconsistent with the

policies and objectives of both the National Planning Framework and the Eastern and Midland

Regional Assembly Regional Spatial and Economic Strategy. In failing to ensure consistency

with the objectives of the NPF and RSES, the Council erred in law, acted ultra vires its powers

and in breach of the provisions of the Planning and Development Act 2000, as amended,

including sections 12(11), 12(18) and 27(1).”

48. The applicants are no longer pursuing core grounds 2, 3 or 7 in these proceedings.

The impugned decision

49. The applicants challenge in essence two elements of the development plan:

(i) the alteration of housing zoning to open space zoning in relation to specified lands;

and

(ii) the inclusion of a map-based objective regarding density.

50. The zoning objective provided for “RA – Residential Area” on Map 8 is:

“Provide for new residential communities subject to the provision of the necessary social and

physical infrastructure”

51. The zoning objective provided for “OS – Open Space” is:

“Preserve and provide for open space and recreational amenities”

52. PA SH 8.5 provides as follows:

“PA SH 8.5:

Include a new map-based local objective for lands at Fosterstown as follows:

Provide for well-designed housing at a density of 110-115 dwellings per hectare, which is in

keeping with the masterplan and the enhancement of the character of the Key Town of

Swords.”

Domestic law issues

53. The issues are all pleaded as ones of domestic law, and divide between issues related to the

zoning (core ground 1) and related to the map-based objective (core grounds 4 to 6). We can

discuss the grounds under those two broad headings.

I – Challenge to zoning decision (core ground 1)

Core ground 1 – zoning in alleged breach of guidelines

54. Core ground 1 is:

“1. In making the Fingal Development Plan 2023-2029, the Respondent’s decision to

change the zoning objective of certain of the Applicants’ lands at Fosterstown, Swords,

County Dublin from zoning objective RA-Residential Area to OS-Open Space breached the

‘Development Plans, Guidelines for Planning Authorities’, June 2022 and as a result the

Respondent was in breach of its obligations pursuant to section 28(1A) of the Planning and

Development Act 2000 to have regard to ministerial guidelines, and to consider the policies

and objectives of such guidelines, and was also in breach of its obligations pursuant to

section 28(1B) insofar as it failed to provide any or any adequate reasons as to why the

policies and objectives of such guidelines could not be complied with and is therefore

unlawful, ultra vires, invalid and of no legal effect.”

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

“Core Ground 1

Development Plan Guidelines

Applicants’ Position

Subsection 28(1) of the 2000 Act imposes an obligation on planning authorities to ‘have

regard’ to such guidelines as may be issued pursuant to that section. Section 28(1A)

imposes a heightened obligation on planning authorities to consider the policies and

objectives of the Minister contained in such guidelines in the context of making a draft

development plan or development plan, and append a statement thereto which applies the

provisions of subsection (1B).

Subsection (1B) requires that the statement referred to above indicates how the said policies

and objectives have been implemented, or where, in the opinion of the planning authority

such implementation has not been possible, the reasons for the forming of the opinion must

be provided in the statement.

In June 2022, prior to the date of the Impugned Decision, ‘Development Plans, Guidance

for Planning Authorities’ were issued under section 28 of the 2000 Act (the ‘Development

Plan Guidelines’). It was policy and objective of those guidelines that serviced and

developable land, zoned for housing under an existing development plan, should not be

subject to de-zoning.

In the making of the 2023 CDP, the Respondent decided to ‘de-zone’ certain of the

Applicants’ lands, which were already zoned for residential purposes under the previous CDP.

In deciding to de-zone those lands from ‘RA - Residential Area’ to ‘OS - Open Space’, the

Respondent was obliged to have regard to the policy and objective outlined above. However,

there is no reference to this policy and objective in the Chief Executive’s reports, the motions

and resolutions of the elected members in making the 2023 CDP, or in the appendix to the

2023 CDP which purports to detail compliance with the provisions of subsections 28(1A) and

(1B). The Respondent’s decision is invalid as a result.

Respondent’s Position

By way of general point of opposition, applicable to each of the Core Grounds maintained by

the Applicants, their pleaded case fails to acknowledge and does not address, the planning

rationale informing the Council’s impugned decisions. In this respect, as appears from the

2017 CDP, the Fosterstown Masterplan and the 2023 CDP, the Council have adopted the

strategy approach of the continued implementation of Masterplans – including the existing

Fosterstown Masterplan. This approach (implementing existing Masterplans containing

objectives for the proper planning and sustainable development of the area) resulted in: (i)

parts of the Applicants’ Lands being partly zoned OS – to reflect the approach identified in

the Masterplan; and (ii) the addition of a map based objective to the Applicants’ Lands which

sets a density range of 110-115 units per hectare – again reflecting the Key Built Form

Objectives under the Fosterstown Masterplan.

An important point to note, is that the Applicants do not allege any wrong by reference to

the actual strategy adopted by the Council in the 2023 CDP as to the ‘proper planning and

sustainable development’ of the plan area – i.e. the implementation of the Fosterstown

Masterplan. For example, it is not alleged that it was not open to the Council to seek to

continue to implement the Fosterstown Masterplan or that the continued implementation of

same was contrary to any provision or obligation under the PDA. The Applicants’ make no

complaint about this aspect of the Council’s strategy, the implementation of which resulted

in the impugned decisions – the absence of any challenge to same renders these proceedings

devoid of substance.

The substance of the complaints (when each of the Core Grounds is considered) which

remain in this case represent merits-based disagreement dressed up in legal language –

same do not provide any basis for relief.

As to Core Ground 1, Council complied with its obligation to ‘have regard to’ the Development

Plan Guidelines and the requirements under s.28(1B) – this is apparent from, inter alia:

- Appendix 2 of the 2023 Development Plan, entitled ‘Implementation of Ministerial

Guidelines’, outlines as follows in respect of the Development Plan Guidelines:

‘The Plan implements the policies and objectives of these Guidelines throughout.’

- The Development Plan Guidelines are also referred to in, inter alia: Chief Executive’s

Report on Material Alterations (pg.70); and the 2023 CDP (inter alia, §1.9.6 and §2.2.11).

In this respect, Chapter 2 provides, for example:

‘The amount of zoned land is in excess of the acceptable 20–25% surplus identified in the

Development Plan Guidelines 2022….’

Thus, Council had express regard to the Development Plan Guidelines – the Applicants have

not demonstrated anything to the contrary and have thus failed to discharge the burden of

proof which rests on them in relation to this complaint.

The crux of the Applicants complaint here is that the Development Plan Guidelines say you

should not ‘de-zone’ residential land and that this has occurred here because parts of their

land have been zoned OS. Respectfully, this complaint is misconceived, the following points

can be made:

- The Development Plan Guidelines expressly acknowledge that it is ‘critical to note

that Section 10(8) of the Planning Act makes it clear that there is no presumption in law

that land zoned for any purpose in a development plan shall remain so zoned in any

subsequent development plan’. As such, the Guidelines expressly acknowledge that zonings

can change as part of the new development plan process.

- Insofar as the Development Plan Guidelines refer to the concept of ‘de-zoning’, it is

in the context of providing guidance on the Core Strategy and having sufficient lands for

zoned residential use (§4.4) – which the 2023 CDP confirms there is. There is no complaint

in this case of an under-provision of residential lands. The Applicants rely on the following

extract:

‘It is a policy and objective of these Guidelines that zoned housing land in an existing

development plan, that is serviced and can be developed for housing within the life of the

new development plan under preparation, should not be subject to de-zoning.’

The term ‘de-zoning’ in this context is similar to that considered by the Supreme Court in

Killegland and Barta – where the entire zoning for residential use of the site has been

changed, which is not the case here, contrary to the Applicants’ claims. It does not purport

to concern the situation that arises in this case, which is more akin to a refinement of the

zoning of the lands to bring same into alignment with the strategy set out in the 2023 CDP

regarding the continued implementation of Masterplans.

- The Development Plan Guidelines do not comprise a prohibition on the Council

refining the zoning of lands to accord with the strategy of the Council and same should not

be read in such a restrictive manner.

- Insofar as the Guidelines refer to the ‘existing development plan’, here, that has to

involve consideration of the, then intended, Fosterstown Masterplan, and the subsequent

making of same. The Guidelines do not exist in a vacuum – they have to be considered, as

they were by the Council, in the context presenting, an approach with the Applicants

completely fail to acknowledge.

- The content of the Guidelines does not alter the fact that the obligation on the

Council was only to ‘have regard to same’ – which it did here.

- The Development Plan Guidelines acknowledge the important role of open space –

including in the context of new development (§83 et seq). It would thus be absurd to

suggest that refining zoning to include same, is contrary to the Guidelines.

- The Applicants appear to base their complaint on a lack of express reference to the

above-quoted extract of the Development Plan Guidelines. However, there is no obligation

on the Council to expressly cite a specific aspect of the Guidelines – particularly, where, as

here, the lands were not being ‘de-zoned’ in the sense referred to in the Guidelines.

As to s.28(1B) and the requirement for a ‘Statement’ containing information on s.28

Guidelines – this was done here and can be found at Appendix 2 of the 2023 CDP, entitled

‘Implementation of Ministerial Guidelines’. It is observed that there is no challenge to this

Statement in this case – for example, it is not alleged that same is inaccurate. Further,

contrary to what the Applicants appear to suggest, the requirement under s.28(1B)

comprises the provision of a ‘statement’ as to how s.28 guidelines were implemented or, if,

in the Council’s opinion, not capable of implementation, the reasons for such an opinion. In

this respect, and relevant to Core Ground 1 and Core Ground 4, the Council did not form

such an opinion for the purposes of s.28(1B)(b) – rather, as the Statement demonstrates,

it explained that the s.28 Guidelines were considered/implemented.

More generally, the Council, noting the deliberative nature of the decision-making function,

and contrary to the Applicants’ claims, is not required to address each and very

objective/policy or sentence in s.28 Guidelines for the purposes of s.28(1)-(1B) of the PDA

by reference to each and every potentially relevant aspect of the development plan as part

of the decision-making process – such an approach would be entirely unworkable.”

56. Section 28(1A) and (1B) (now repealed) as inserted by the Planning and Development

(Amendment) Act 2010 provided as follows:

“(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.”

57. The guidelines state as follows (emphasis added):

“4.4.1 Land/Sites Already Zoned

The development plan review process is an opportunity to take stock of land already zoned

for residential purposes or a mixture of residential and other uses. This must be set out in

the plan core strategy. It is critical to note that Section 10(8) of the Planning Act makes it

clear that there is no presumption in law that land zoned for any purpose in a development

plan shall remain so zoned in any subsequent development plan.

Extant Planning Permissions

In undertaking an analysis of the area of land in hectares zoned for residential development

in each settlement and the proposed number of housing units to be included in the area in

accordance with Section 10(2A)(c), regard must be had to any extant planning permissions

for residential development. The current and anticipated rate of housing delivery, both in

relation to the site in question and the settlement as a whole also needs to be considered.

Accordingly;

• A site with a planning permission that has yet to commence may be regarded as having

equivalent potential to any other zoned and serviced site for core strategy calculation

purposes.

• A site with a planning permission that has commenced, should not be wholly excluded from

core strategy calculation purposes unless almost fully built-out. A reasonable estimate

should be made of housing delivery from the permission that is likely to occur during the

plan period. This should be informed by recent levels of housing output and local market

absorption rates on a whole settlement basis, also allowing for a progressive increase in

output.

Land and sites already zoned for residential purposes may be regarded as providing a

baseline, or starting point to meet projected population and housing targets, especially in

cases where planning permission has already been granted, based on the presumption that

land subject to planning permission is already serviced or serviceable.

It is a policy and objective of these Guidelines that zoned housing land in an

existing development plan, that is serviced and can be developed for housing

within the life of the new development plan under preparation, should not be

subject to de-zoning.

Should it be the case that there is a surplus of well-located zoned and fully serviced land to

meet population and housing supply targets already zoned for development in any local

authority area when reviewing a development plan, it is recommended best practice that a

phased approach be taken to prioritise the preferred sequence of development of such sites.

However, phasing should be applied where there is a sound planning rationale for doing so,

based on factors such as site location, the availability or proximity of, or capacity to provide,

off-site services, facilities or infrastructure. This should also be viewed in the context of the

urgent need to increase housing supply

Phasing may not be necessary where the planning judgement is that unconstrained zoned

and serviced housing sites are of broadly equivalent merit for development purposes in a

particular settlement or area at the plan-making stage. In all cases, whether phasing is

applied or not, development plans must build in sufficient flexibility to ensure that housing

development not progressing on one or more sites cannot operate to prevent other suitable

sites that may be developed within the life of the development plan, from coming forward.

It is also best practice that in cases where land is zoned and has remained undeveloped and

unserviced through one or more development plan cycles, with no prospect of being serviced

within the six-year life of the development plan that is under preparation, alternative

approaches must be considered:- (i) alternative zoning objectives or (ii) discontinuing the

objective (See Appendix A).”

58. The applicants have pleaded that the land “is serviced and can be developed for housing

within the life of the new development plan” and there was not any meaningful challenge to that.

59. As an overall point, the applicants’ complaints have to be read within the context of the

broad powers of elected members to change zonings as referred to above: Killegland Estates Ltd v.

Meath County Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023).

60. As to the meaning of “de-zoning”, the text and context of the guidelines and its obvious

intention means the change of zoning from residential to something else. It does not mean removal

of all zonings. But that said, the change in the present case is not the sort of de-zoning to which

the guidelines are addressed. The guidelines, read in context, are talking about a situation where

land is zoned for housing, serviced for housing, and then removed from a zoning category that would

have permitted such housing to be actually consented. Here, the housing zoning of the overall

development site is being preserved and all that is happening is that certain green corridors within

that are being specifically zoned open space – but there would have to be open space anyway within

the development site even if the zoning was unchanged. This is not in substance “de-zoning” in the

sense of the guidelines – a conclusion reinforced by the fact that ministerial guidelines overall are

specific on the need for open space within residential developments. So for that reason none of this

properly arises anyway but if I am wrong about that I will go on to consider the applicants’

complaints.

61. Admittedly, the council’s “take” of the site for open space-type uses is potentially increased

by specifically zoning certain areas for public open space and then potentially requiring other areas

to be designated for recreation by residents of the development in the context of an individual

planning application. But that is an option that is lawfully open to them because the ministerial

guidelines allow open space-type provision both for the public generally and for residents of proposed

housing developments – if a particular council wants both types of provision made for a particular

site it can do that.

62. The applicants’ argument can be summarised under the headings of breach of sub-s. (1A),

breach of sub-s. (1B)(a) and breach of sub-s. (1B)(b). These need to be considered separately.

Alleged breach of sub-s. (1A)

63. Insofar as the core ground suggests a failure to have regard to ministerial guidelines, that

would not be correct because the guidelines are expressly referenced in the CDP.

64. The fact that the duty to have regard to the guidelines has a statutory basis in s. 28(1A) of

the 2000 Act does not elevate it into anything more than a have-regard to duty. Such a duty does

not set a very high bar for decision-takers: see generally G.K. v. Minister for Justice [2001] IESC

205, [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401 (Hardiman J.); Rana v. Minister for Justice [2024]

IESC 46 (Unreported, Supreme Court, O’Malley J., 18 October 2024) at §93.

Alleged breach of sub-s. (1B)(a)

65. Insofar as one can ask whether there was a statement under sub-s. (1B), that is at Appendix

2 of the 2023 CDP.

66. The council argues that the applicants didn’t specifically challenge the wording of Appendix

2 and thus are barred from advancing this ground. However, pleadings don’t have to cite every

micro-provision relied on as long as the point is acceptably clear – which it is here.

67. The real problem for the applicants is that the ministerial guidelines also provide policies

pointing in the direction followed by the council. Page 83 of the guidelines provides (notes omitted,

emphasis added):

“Public Open Space Provision

Of particular importance is the role that the development plan can play in the provision of

quality public open space as an essential amenity. The development plan can support a

structured approach to the contribution made by new development towards public open

space provision in an area.

This may be achieved through requirements or standards that are to be applied in the

consideration of both the quantum and quality of public open space to be provided as part

of new residential developments seeking planning permission. Such requirements should

be clearly set out in the development plan. There should be a distinction made between

public open space required to serve an individual development proposal and that

required to serve the community as a whole, which should be zoned accordingly.

There should also be alternative approaches, which may include a more flexible application

of standards to facilitate brownfield and infill development.

Broader development plan requirements or standards for public open space may seek to

address the needs of the existing community and the availability of public open space in the

form of local, town or regional public parks that are an important amenity at a wider

neighbourhood, town or regional scale. Planning authorities should incorporate a public open

space strategy into their development plan to address open space provision as part of a

wider assessment of community facilities and amenities.

The development plan should provide a strategic approach to public open space provision,

with local area plans and other strategies providing both application at a local spatial scale

and greater detail, to ensure sufficient size and quality of provision, often with opportunities

for incorporating the natural heritage and landscape features referenced in Chapter 9 of

these Guidelines.”

68. The guidelines also provide for protection of green infrastructure, hedgerows and so on:

“9.2.4 Nature Conservation

While protected areas cover a significant part of the country, the majority of the country lies

outside of this network. There are many other sites which are of local importance for flora

and fauna. Local authorities have an important role to play in preventing the loss of such

sites and the species which rely upon them for their survival. Development plans should

identify such sites of local ecological importance and endeavour to secure their protection.

Any development on or near such sites should avoid any significant adverse impact on the

features for which the site is considered to be of local importance.

Features in the countryside such as hedgerows, river corridors, ponds and small stands of

trees etc. provide important habitats for a variety of species. Development plans should

seek to address the loss of such features in line with the National Biodiversity Plan’s

commitment to no net loss of biodiversity.”

69. Section 9.4 states:

“9.4 Mandatory Objective: Amenities (Natural Features)

Section 10(2)(j) of the Act provides that a development plan shall include objectives for:

‘the preservation, improvement and extension of amenities and recreational amenities.’

The definition of ‘amenities’ is potentially quite broad, ranging from natural amenity assets

such as parks, open spaces, green infrastructure, greenways etc and also social and

community facilities. This section addresses the ‘natural features’ definition of amenities.

Part XIII of the Act deals with amenities and focusses on the natural aspect of the definition,

making provision, inter alia, for:

i Areas of Special Amenity;

ii Landscape Conservation Areas;

iii Tree Preservation Orders; and

iv Public Rights of Way.

Part IV of the First Schedule to the Act also refers to amenities and includes provision for

landscape protection; preservation of public rights of way; provision of public open space;

provision of recreation space, including space/places for children to play; and, control of

roadside advertisement structures.

The requirements of the planning authority for public open space and recreation space

provision in connection with development proposals, particularly residential development,

should be set out in the development plan. The planning authority’s own specific objectives

in this regard should also be indicated.

Rather than include policies that have a vague or aspirational intent, planning authorities

should provide a clear evidence base for open space and recreation space policies. This

evidence base could be provided in the form of an ‘Open Space Strategy’ or a more broad-

based, ‘Green Infrastructure Strategy’ which should include a detailed audit of existing open

space provision across the local authority area. The important role that such networks can

play in addressing climate change is set out in Chapter 7 above. A number of local

authorities in recent years have produced good examples of ‘Open Space Strategies’ and

‘Green Infrastructure Strategies’ which, following detailed audits and gap analysis, have led

to ‘Open Space Accessibility Standards’ - effectively targets for optimum accessibility from

homes for each type of public open space in a local authority area. These strategies can be

valuable in informing development plan policy in relation to the requirement for new open

space provision, particularly in new development areas. Protected landscapes play an

important role in providing active outdoor amenities and also acting as carbon sinks.

Furthermore, there is also a role for these landscape designations to provide ‘strategic green

corridors’ which provide for development buffers and pathways for biodiversity.”

70. One canard that is occasionally heard in discussion of planning law is that courts should not

make planning decisions or set planning policy. But obviously, courts do not make planning decisions

or set planning policy. Courts come into play at a general level in three situations – breach of norms,

conflict of norms or absence of norms. In practical terms in the planning context that generally

means when (a) planning law or legally relevant policy is not complied with, (b) law or legally-

relevant policy is in conflict or points in different directions, or a lower norm can be challenged as in

conflict with a higher norm or (c) the case at hand falls into a space where specific legal provision

or legally-relevant policy is ambiguous or lacking. That’s the way the system has to work. Other

branches of government can avoid these scenarios (with the court’s encouragement of course, for

what it’s worth – courts are not generally looking for work) by ensuring that law and policy are as

consistent and comprehensive as possible and are complied with in individual cases. That’s an

ongoing process – but people shouldn’t blame the courts if in any given case, the relevant law and

policy are not actually as consistent and comprehensive as possible, thereby necessitating recourse

to forensic refereeing.

71. The tension between different provisions of the ministerial guidelines here is a classic

instance of the phenomenon referred to in Tesco Stores Limited v. Dundee City Council [2012] UKSC

13, [2012] P.T.S.R. 983 per Lord Reed at para. 19:

“As has often been observed, development plans are full of broad statements of policy, many

of which may be mutually irreconcilable, so that in a particular case one must give way to

another. In addition, many of the provisions of development plans are framed in language

whose application to a given set of facts requires the exercise of judgment. Such matters

fall within the jurisdiction of planning authorities, and their exercise of their judgment can

only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v

Secretary of State for the Environment [1995] 1 WLR 759, 780, per Lord Hoffmann.

Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot

make the development plan mean whatever they would like it to mean.”

72. This is akin to the general problem that balancing multiple factors in the process of managing

public or private affairs is not something the courts are well equipped to micro-manage. As put in

ClientEarth v. Shell plc [2023] EWHC 1897 (Ch), [2024] Env. L.R. 1 per Trower J. at 66:

“However, the evidence does not engage with the issue of how the Directors are said to have

gone so wrong in their balancing and weighing of the many factors which should go into

their consideration of how to deal with climate risk, amongst the many other risks to which

Shell’s business will inevitably be exposed, that no reasonable director could properly have

adopted the approach that they have. This is a fundamental defect in ClientEarth’s case

because it ignores the fact that the management of a business of the size and complexity of

that of Shell will require the Directors to take into account a range of competing

considerations, the proper balancing of which is a classic management decision with which

the court is ill-equipped to interfere.”

73. We then turn to whether the council has stated “how” the guidelines are implemented.

74. Appendix 2 begins:

“Statement Outlining Compliance with Section 28 Ministerial Guidelines

Introduction

This Appendix constitutes the statement demonstrating how Fingal County Council has

implemented the relevant policies and objectives of the Minister when considering their

application to the County in the Development Plan.

Legislative Requirements

Section 28(1) of the Planning and Development Act 2000, (as amended) allows for issuing

of Guidelines to Planning Authorities (such as Fingal County Council) regarding their

functions under the Act and specifies Planning Authorities shall have regard to those

Guidelines in the performance of their functions.

Under Sections 28(1A)(b) and 28(1B) of the Act 2010 (as amended), a Planning Authority

is required to append a statement to their Development Plan to include information which

demonstrates:

• How the Planning Authority has implemented the relevant 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

• 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 relevant policies and objectives of the Minister have not been so

implemented.

In addition, Section 28(1C) of the Act includes a provision that Guidelines made under

Section 28(1) may contain specific planning policy requirements (SPPRs) with which Planning

Authorities, regional assemblies and the Board shall, in the performance of their functions,

comply.

Implementation of Policies and Objectives of S28 Guidelines in the Development Plan

In addition, Section 28(1C) of the Act includes a provision that Guidelines made under

Section 28(1) may contain specific planning policy requirements (SPPRs) with which Planning

Authorities shall, in the performance of their functions, comply. The required statement

pertaining to the Fingal Development Plan 2023 – 2029 is as below under the following

tables:

• Table 1: List of Section 28 Ministerial Guidelines

• Table 2: Implementation of SPPRs under the Building Height Guidelines

• Table 3: Implementation of SPPRs under the Apartment Guidelines

• Table 4: Implementation of SPPRs under the Interim Guidelines for Planning Authorities

on Statutory Plans, Renewable Energy and Climate Change”

75. The only statement in Appendix 2 that specifically responds to the development plan

guidelines is:

“Development Plans Guidelines for Planning Authorities (2022 - available in Draft August

2021)

The Plan implements the policies and objectives of these Guidelines throughout.”

76. The applicants’ case is that a generic statement that the guidelines have been complied with

does not constitute compliance with the statutory requirement to show “how” the guidelines have

been complied with.

77. As a general proposition there is some validity to that point in the abstract – there is an

objective distinction between a statement that something is the case and how it is the case.

78. The problem with applying that abstract proposition to these guidelines is that a ministerial

document that is 136 pages long and that relates to the whole plan-making process is not susceptible

to a narrative discussion as to how it is implemented in a way that can be meaningfully policed in a

justiciable manner. If a council tries to say much more than that it has had regard to the

development plan guidelines throughout the plan, it becomes immediately bogged down in a

quagmire if it starts trying to explain how it has complied with particular provisions and not others.

An attempt to explain how every single provision is complied with is not workable. The law does not

favour unworkable interpretations: Waltham Abbey/Pembroke Road Association v. An Bord Pleanála

[2022] IESC 30, [2022] 2 I.L.R.M. 417 (§43 per Hogan J.; MacMenamin, Charleton, O’Malley and

Baker JJ. concurring); Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43,

[2024] 2 I.R. 222, [2022] 2 I.L.R.M. 313 (§106 et seq. per Murray J.; O'Donnell C.J., O'Malley,

Woulfe and Hogan JJ. concurring); Save Cork City Community Association CLG v. An Bord Pleanála

[2022] IESC 52, [2024] 1 I.R. 205 (inter alia, §47 per Woulfe J.; Dunne, Charleton, O’Malley and

Hogan JJ. concurring). An attempt to distinguish important from unimportant provisions is also

unworkable as there is just too much in the guidelines to allow for that exercise to be meaningful.

79. The standard of the reply to the question “how” is not something that automatically lends

itself to a justiciable answer, especially since such a question can be answered at whatever level of

generality or whatever length you may choose. Answers to “how” can be one word (e.g.: How do

you get to Carnegie Hall? (in the version retold by Graham Linehan and Arthur Mathews in “A Song

for Europe”)) or millions of words – such as a manual of how to put a man on the moon (a manual

of how to put a woman on the moon would presumably be longer, requiring thousands of preliminary

chapters on bringing about social change). Ultimately there is no limit to the explanations that could

be demanded – Carl Sagan made this point in Cosmos: “If you wish to make an apple pie from

scratch, you must first invent the universe” (London, Book Club Associates, 1980) p. 218. If that’s

unacceptably abstract I can put it more simply – it’s easy for the applicants to strip out one line of

one set of 136-page guidelines in a decontextualised manner, focus on the one issue of de-zoning

and demand more specific “how”-type reasoning in respect of one particular site, but if such an

obligation existed it would also apply to every other sentence in those guidelines and every sentence

in the other 24 guidelines that the council had to grapple with, and would apply to all other land

whatsoever in the county where a case could be made about compliance with any provision of any

of the guidelines, as well as having the implication that all other city and county councils in the State

would have similar obligations in respect of each line of each one of the 25 sets of ministerial

guidance, which they would need to comply with in respect of every plot of land in Ireland where

there could be any question-mark about implementation of any of that.

80. It is not possible or workable for a council to set out at length its response to every provision

of dozens of guidelines, each running to many pages (as just referred to, 25 sets of guidelines under

s. 28 were considered by the council for the purposes of the sub-s. (1B) statement here), and still

less to do so in relation to individual plots of land.

81. It therefore follows that the word “how” means not only a reasons-based response (such as

a chain of reasoning between the specific guideline provision and the specific plan provision) but

also includes a process-based or decision-making based type of explanation. To that extent the

word “throughout” furnishes a sufficient albeit perhaps minimal satisfaction of the requirement to

explain “how” the guidelines were implemented. Any alternative explanation quickly becomes

unworkable.

82. If I am wrong about that, and if therefore the Appendix 2 statement is deficient in this

regard, certiorari is inappropriate if due reasons are found elsewhere in the council’s material, which

is the case here. The logic of providing open space inferentially involves compliance with the open

space/ ecological provisions of the ministerial guidelines which therefore demonstrates a more

reasons-based response to “how” the guidelines were implemented.

83. Standing back from that, an even bigger problem for the applicants is that the current zoning

in the plan reflects the masterplan (incorporated via other provisions of the CDP – see below) which

is express as to the need for open space in the Fosterstown area:

“Key Objectives

The following are the Key Green Infrastructure Objectives for the Fosterstown Masterplan

lands:

• Provide an east-west green corridor along the existing stream encompassing pedestrian

and cyclist infrastructure, connecting from existing open space at Boroimhe Birches to the

west of the lands with the R132 to the east of the lands.

• Provide a north-south green corridor along the existing stream encompassing pedestrian

and cyclist infrastructure connecting from the proposed east-west corridor to the proposed

Fosterstown Link Road.

• Provide a high quality landscaped space/ square opposite the proposed MetroLink station

on the R132.

• Ensure that the proposed Fosterstown Link Road, as well as the proposed local access

streets as shown on the road hierarchy, are lined with trees planted in constructed tree pits.

• Provide active open space facilities in the form of playing pitches adjacent to the school

site and available for use by local residents outside of school requirements.

• Provide an area of high quality landscaped open space to the north-east of the lands,

adjacent to the R132, to provide high-quality green space and provide a setback for the

proposed hotel from the R132.

• Conserve, protect and enhance existing trees and hedgerows within the Masterplan lands

to help foster biodiversity in the area.

• Ensure that new or extended open space networks are designed to facilitate people with a

broad range of ability.”

84. The air of unreality about the applicants’ point overall remains relevant even if I am wrong

that it fails in limine. This is not actually a case of radical de-zoning of already residentially zoned

lands. The actual open space zonings are lines of hedgerows/ trees along roads/ paths, a stream

across the lands, or between buildings. The site overall remains suitable for housing and zoned for

housing but the OS zonings merely confirm that there will need to be trees/hedgerows/ open space

in between those buildings. Even if it can be called de-zoning, this is very far from the sort of central

case of de-zoning envisaged by the ministerial guidelines. On the contrary, as the council forcibly

and with justification submits, this is a case of promoting plan-led development.

85. As signalled above, the CDP also provides:

“14.13.2 Quantity

For all developments with a residential component, the overall standard for public open

space provision is a minimum 2.5 hectares per 1000 population. In order to provide existing

and future communities with adequate recreational and leisure opportunities, the Council

will employ a flexible approach to the delivery of public open space and more intensive

recreational/amenity facilities. It is the intention of the Council, however, to ensure, except

under exceptional circumstances, public open space provision exceeds 12% of a

development site area. The development site area cannot include lands zoned RU, GB, OS

or HA.

Objective DMSO51 – Minimum Public Open Space Provision

Require a minimum public open space provision of 2.5 hectares per 1000 population. For

the purposes of this calculation, public open space requirements are to be based on

residential units with an agreed occupancy rate of 3.5 persons in the case of dwellings with

three or more bedrooms and 1.5 persons in the case of dwellings with two or fewer

bedrooms.

Consideration may be given by the Council to the inclusion of civic spaces within overall open

space quantum calculations, but only on a case-by-case basis and only in instances where

the space proposed is of a size and layout suitable to cater for civic events, is of an

exceptionally high standard of finish, including the planting of large street trees and

associated landscaping and does not fulfil ancillary functions associated with commercial or

other land uses.”

86. Insofar as the applicants complained in submissions that open space within a development

site could be doubled merely by specifically zoning green areas as open space (because there would

then have to be additional recreational space for development users in the context of a given

consent), and even allowing for the possibility that reasonable people could disagree about whether

that is a good idea, it has not been established that that is unlawful. For what it is worth, the

compact settlement guidelines 2024 provide that a net site area may be 65-80% of the gross site

area:

“In applying this methodology in the preparation of a Core Strategy under Section 10 of the

Act, the planning authority will need to account for net and gross areas when calculating

land requirements. It will be necessary to make an informed estimate of net developable

area taking account of factors such as the need for major roads and parks, schools,

commercial uses and the presence of flood zones and other environmental sensitives etc.,

and to determine an appropriate density range for each area. The general rule of thumb is

that the net site area would be between 65 to 80 percent (approx.) of the gross area but

this will depend on the area of land involved and local circumstances. Appendix B Measuring

Residential Density sets out more detail in relation to net and gross site areas.”

87. The guidelines also envisage that public open space provision would be 10-15% of the net

site area, not the gross area – so a deduction of 24% of the gross area (the 12% zoned OS and a

hypothetical 12% minimum provision for residents under the plan) would not be out of line:

“Policy and Objective 5.1 - Public Open Space

It is a policy and objective of these Guidelines that statutory development plans include an

objective(s) relating to the provision of public open space in new residential developments

(and in mixed-use developments that include a residential element). The requirement in

the development plan shall be for public open space provision of not less than a minimum

of 10% of net site area and not more than a minimum of 15% of net site area save in

exceptional circumstances. Different minimum requirements (within the 10-15% range)

may be set for different areas. The minimum requirement should be justified taking into

account existing public open space provision in the area and broader nature conservation

and environmental considerations.

In the case of strategic and sustainable development sites, the minimum public open space

requirement will be determined on a plan-led basis, having regard to the overall approach

to public park provision within the area.

In the case of sites that contain significant heritage, landscape or recreational features and

sites that have specific nature conservation requirements, a higher proportion of public open

space may need to be retained. The 10-15% range shall not therefore apply to new

development in such areas.

In some circumstances a planning authority might decide to set aside (in part or whole) the

public open space requirement arising under the development plan. This can occur in cases

where the planning authority considers it unfeasible, due to site constraints or other factors,

to locate all of the open space on site. In other cases, the planning authority might consider

that the needs of the population would be better served by the provision of a new park in

the area or the upgrade or enhancement of an existing public open space or amenity. It is

recommended that a provision to this effect is included within the development plan to allow

for flexibility. In such circumstances, the planning authority may seek a financial

contribution within the terms of Section 48 of the Planning and Development Act 2000 (as

amended) in lieu of provision within an application site.”

88. So there is nothing obviously unlawful, or inherently contrary to existing policy, for what

that is worth, about a deduction under both headings from developable lands along the lines that

could arise here, even accepting that both parties’ positions on this are well within the zone of the

reasonable.

89. Ultimately in terms of the relief sought, no breach of the statutory requirement to show

“how” the ministerial guidelines has been demonstrated.

Alleged breach of sub-s. (1B)(b)

90. The basic problem for the applicants is that the council did not formulate the view that the

guidelines were not complied with. Therefore the obligation to formulate reasons as to why it was

not possible did not arise.

91. Furthermore the council’s decision is not objectively in contravention of guidelines which

contain text which points in potentially different directions and thus which has to be reconciled

and/or applied in the exercise of evaluative judgement. More overarchingly, this is not a case of

overall de-zoning of the type to which the guidelines are directed – rather it is a case of providing

for open space within a larger site that remains zoned for residential development.

92. If I am wrong about that, the reasons for the change in zoning are acceptably clear in any

event namely the provision of additional open space, for reasons referred to above.

II – Challenge to map-based objective (core grounds 4 to 6)

Core ground 4 – map-based objective in alleged breach of guidelines

93. Core ground 4 is:

“4. In making the Fingal Development Plan 2023-2029, the decision to adopt map-based

objective no. 38, as inserted by material amendment PA SH 8.5, is inconsistent with

ministerial guidelines, and as a result the Respondent was in breach of its obligations

pursuant to section 28(1A) of the Planning and Development Act 2000 to have regard to

ministerial guidelines, and to consider the policies and objectives of such guidelines, and

was also in breach of its obligations pursuant to section 28(1B) insofar as it failed to provide

any or any adequate reasons as to why the policies and objectives of such guidelines could

not be complied with and is therefore unlawful, ultra vires, invalid and of no legal effect.”

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

“Core Ground 4

Density – s.28 Guidelines

Applicants’ Position

In a similar vein to Core Ground 1 above, where subsections 28(1A) and (1B) require that,

where a local authority has formed the opinion that it cannot comply with relevant policies

and objectives as contained in applicable guidance it must give reasons in the statement to

be appended to the CDP the reasons for reaching this conclusion.

Map-based objective no. 38, as inserted by material alteration PA SH 8.5, as adopted by the

Respondent, had the effect of restricting the density of residential units on the Applicants’

lands to a range of 110 to 115. In adopting the material alteration, the Respondent was

obliged to have regard to the ‘Guidelines for Planning Authorities on Sustainable Residential

Development in Urban Areas (Cities, Towns & Villages) (2009) (the ‘Sustainable Residential

Development Guidelines’) and ‘Sustainable Urban Housing: Design Standards for New

Apartments (2020) (the ‘Apartment Guidelines’), both of which provide for higher densities

in suitable locations. The relevance of these guidelines were highlighted to the Respondent

in submissions made on behalf of the Applicants.

In failing to engage with those relevant policies and objectives in the guidelines, insofar as

they related to the Applicants’ lands in the context of material alteration PA SH 8.5 as part

of the 2023 CDP, particularly where these had been put in issue in terms in submissions,

the Respondent breached subsections 28 (1A) and (1B) by not setting out in a statement

appended to the 2023 CDP the manner in which the Council formed the opinion that the

policies and objectives of the Sustainable Residential Development Guidelines and the

Apartment Guidelines could not be implemented.

Respondent’s Position

Insofar as the Applicants complain that the Council contravened to s.28(1)-(1B) of the PDA

by reference to: (i) the Sustainable Residential Development in Urban Areas (Cities, Town

and Villages) (‘the Sustainable Residential Development Guidelines’) (2009); and (ii) the

Sustainable Urban Housing, Design Standards for New Apartments: Guidelines for Planning

Authorities (2020) (‘the Apartment Guidelines’) – these complaints lack substance.

The substance of the complaint here is that the Applicants did not want a density range

ascribed to their lands and/or wanted a higher density range ascribed (a reasonable

inference that may be drawn from the extracts quoted by the Applicants from the said

Guidelines). However, simply because the Applicants did not get what they wanted in the

2023 CDP, this does not mean or evidence a failure to have regard to the Guidelines – which

is the height of this complaint.

The Applicants quote from relatively generic parts of these Guidelines, however, they do not

explain, either in their pleaded case or Submissions, how they say any issue arises from the

approach of the Council in this respect. These Guidelines do not prohibit or restrict an

objective of the nature imposed, nor do they suggest that such an objective is not in

alignment with the Guidelines

The Applicants maintain that the Council was ‘obliged to consider’ these Guidelines– put

simply: it did.

The Applicants also contend that the Council was required to append a statement to the

2023 CDP to demonstrate how the Guidelines were so considered/implemented, and if, in

the opinion of the Council, not capable of being implemented, the reasons why this was not

possible – again, it did.

As Appendix 2 to the 2023 CDP makes clear both Guidelines were considered in the process

of making the Development Plan - there is no challenge to this Statement. In respect of the

Sustainable Residential Development Guidelines, same provides that same were considered

in, inter alia:

‘Chapter 3: Sustainable Placemaking and Quality Homes, Chapter 4: Community

Infrastructure and Open Space and Chapter 12: Implementation and Monitoring implement

the relevant policies and objectives of these Guidelines.’ [pg.43]

In respect of the Apartment Guidelines, same provides that same were considered in:

‘Chapter 3: Sustainable Placemaking and Quality Homes and Chapter 14: Development

Management Standards, contain the relevant policies and objectives for these Guidelines,

including compliance with SPPRs.’ [pg.41]

That regard was had to these Guidelines is also clear from the Written Statement of the

2023 CDP.

As with Core Ground 1, contrary to the Applicants’ complaints, the Council did not form the

opinion that these Guidelines could not be implemented.

The approach adopted in respect of the adoption of the map based objective on the

Applicants’ land does not evidence any failure to have regard to the Sustainable Residential

Development Guidelines and the Apartment Guidelines in making the 2023 CDP. As outlined

above, the Guidelines were expressly considered and the Applicants have not demonstrated

anything to the contrary in making this complaint.”

95. The basic reason why this point fails follows from the previous heading. Subsection (1A) is

a have-regard-to obligation and was clearly complied with. The general statement in Appendix 2 is

adequate for the purposes of sub-section (1B) for reasons explained. Subsection (1B)(b) does not

apply but even if it did, reasons are apparent from the material overall rendering certiorari

inappropriate.

96. Insofar as additional guidelines are relied on by the applicants, Appendix 2 states as follows:

“Sustainable Urban Housing, Design Standards for New Apartments: Guidelines for Planning

Authorities (2020) – (Apartment Guidelines)

Chapter 3: Sustainable Placemaking and Quality Homes and Chapter 14: Development

Management Standards, contain the relevant policies and objectives for these Guidelines,

including compliance with SPPRs.

…

Sustainable Residential Development in Urban Areas (Cities, Town and Villages): Guidelines

for Planning Authorities (and the accompanying Urban Design Manual: a best practice guide)

(2009)

Chapter 3: Sustainable Placemaking and Quality Homes, Chapter 4: Community

Infrastructure and Open Space and Chapter 12: Implementation and Monitoring implement

the relevant policies and objectives of these Guidelines.”

97. Given the constraints of workability, these general statements can’t be regarded as

transgressing the bounds of the lawful.

98. Furthermore the applicants haven’t established that anything in these guidelines was clearly

infringed by the CDP. The apartments guidelines, for example, are pleaded at paras. 50-51 of the

statement of grounds as referring to accessible (sub)urban locations, of which this is clearly one.

But that in itself doesn’t warrant any specific density and nor is any specific density pleaded other

than by way of an unspecific contrast between undefined “increased” density (para. 53) and the

alleged “restrict[ed]” density under the objective (para. 46 of the statement of grounds). The

premise is incorrect – if anything the objective is slightly more favourable to the applicants than the

position that would otherwise apply under the masterplan. But more generally, 110-115 units per

hectare is itself an increased density over many urban environments (and in particular is over and

above the other two masterplan areas – see below).

99. If it will assist the applicants, I will include a recital in the order that the map-based objective

does not constitute a reduction of the density that would otherwise apply by virtue of the

incorporation of masterplans into the CDP (a suggestion I made in the draft judgment, which

stimulated no adverse reactions).

100. The Sustainable Residential Development and Compact Settlements Guidelines for Planning

Authorities do envisage specific ranges potentially in excess of what this plan provides (i.e., up to

150 dph). The development site at issue in this case appears to me on the face of things to be

suburban land in proximity to transport links. No doubt the commission will decide that in due

course but if my impression is correct, the following text would apply (notes omitted, emphasis

added):

“City - Suburban/Urban Extension

Suburban areas are the lower density car-orientated residential suburbs constructed at the

edge of cities in the latter half of the 20th and early 21st century, while urban extension

refers to the greenfield lands at the edge of the existing built up footprint that are zoned for

residential or mixed-use (including residential) development. It is a policy and objective of

these Guidelines that residential densities in the range 40 dph to 80 dph (net) shall generally

be applied at suburban and urban extension locations in Dublin and Cork, and that densities

of up to 150 dph (net) shall be open for consideration at ‘accessible’ suburban/urban

extension locations (as defined in Table 3.8).”

101. By definition the council can’t be expected (nor did the applicants expect them) to anticipate

guidelines published after the making of the CDP and it wasn’t argued that they were obliged to vary

their plan automatically merely because subsequent guidelines are made. But the commission will

no doubt consider those guidelines to the extent that they think it appropriate in the context of any

specific planning application.

Core ground 5 – failure to consider proper planning and sustainable development

102. Core ground 5 is:

“5. The decision of the Respondent to adopt map-based objective no. 38, as inserted by

material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 is invalid, ultra

vires, unlawful and of no legal effect because the Respondent failed to consider, whether

properly or at all, the proper planning and sustainable development of the Fosterstown area,

in breach of section 12(11) of the Planning and Development Act 2000 and failed to have

regard to relevant considerations.”

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

“Core Ground 5

Alleged failure to have regard to relevant considerations

Applicants’ Position

Section 12(11) of the 2000 Act requires that, in the making of a CDP, the elected members

are restricted to considering the proper planning and sustainable development of the area,

the statutory obligations of local authorities and relevant governmental policies and

objectives. It is apparent that the decision to make a development plan may be successfully

impugned if it is apparent that extraneous and impermissible matters were taken into

account in the making of the decision.

It is the Applicants case that, in voting in favour of an motion which proposed an amendment

to the CDP, regard was had to extraneous matters which are not appropriate in the context

of a decision on the zoning of a site. The decision of the Council to vote in favour of the

adoption of material alteration PA SH 8.5 – so as to incorporate map-based objective no.

38, in the 2023 CDP did not comply with the obligation to consider only planning

considerations.

Respondent’s Position

The Applicants are confined to their pleadings on this Core Ground – which do not actually

specify any factor allegedly taken into account which should not have been.

By ignoring the entire development plan process which preceded the Motion, which is clearly

relevant to understanding the Council’s strategic/planning rationale, the Applicants adopt an

erroneous approach to understanding the comments made during the debate – see Bartra

(§105 – ‘the ultimate decision needs to be considered in its legislative context, but also in

the context of the overall process’). The Applicants’ approach to this Core Ground of

challenge is based on a misunderstanding and inaccurate description of the Council’s

approach to density at the site. The Council’s reasoning and rationale for its decision should

be considered by reference to the complete context to same and it is not appropriate to seek

to isolate a debate on a Motion without any reference to the consideration of the Masterplan

and the policy approach relevant to same in the 2017 CDP and the 2023 CDP.

The Applicants purport to impermissibly expand the scope of the pleaded case and seek to

identify a number representations made by Cllr Mulligan during the course of the debate.

However they have not particularised which, if any, of these representations are not related

to the proper planning and sustainable development of the area, nor have the Applicants

particularised how such representations, which relate to the appropriate densities for

appropriate locations in an area or ensuring consistency with locally adopted masterplans,

constitute extraneous or irrelevant considerations. They do not and there is a real lack of

substance to this Core Ground.

The Applicants have failed to identify which, if any, of the comments made in the course of

the debate constitute either personalised or non-planning matters which are not valid

planning considerations. Nor have the Applicants engaged with the question of whether any

such comments were marginal or central. No attempt has been made to properly advance

this complaint, most probably because when one looks at the facts objectively, there is no

evidential basis to support same.”

104. Section 12(11) (now repealed) provided:

“(11) In making the development plan under subsection (6) or (10), the members shall be

restricted to considering the proper planning and sustainable development of the area to

which the development plan relates, the statutory obligations of any local authority in the

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

Minister of the Government.”

105. The applicants essentially argue that non-planning considerations were taken into account

by the members in adopting the map-based objective.

106. Stating the obvious by way of context:

(i) as with all decisions, the decision should be read as valid if a valid reading is

available: see M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020]

IEHC 41 (Unreported, High Court, 29 January 2020) at §7; Mulloy v. An Bord

Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12 March 2024) at

§178 (citing O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High

Court, 1 November 2023)); Save Roscam Peninsula CLG v. An Bord Pleanála (No.

6) [2024] IEHC 335 (Unreported, High Court, 7 June 2024) at §64); thus for example

“unhelpful” statements should not be read as inconsistent with statutory factors if

the decision can be read as valid – E.M. v. Minister for Justice and Equality [2024]

IESC 3 (Unreported, Supreme Court, 21 February 2024) per Dunne J. (Charleton,

Woulfe, Murray and Donnelly JJ. concurring); Friends of Killymooney Lough v. An

Coimisiún Pleanála [2025] IEHC 407 (Unreported, High Court, 16 July 2025); Moran

v. An Bord Pleanála [2025] IEHC 510 (Unreported, High Court, 26 September 2025)

per Farrell J. at 13, and this applies even if the wording is sub-optimal: Duffy v. An

Bord Pleanála [2025] IEHC 715 (Unreported, High Court, Farrell J., 30 December

2025) at 32; and

(ii) if there is any departure from legal parameters one has to ask how central such a

comment is.

107. One then asks what are the alleged improper considerations here. The applicants summarise

their claim at para. 60 of submissions:

“60. As set out in the Affidavits and exhibits grounding the application for judicia[l]

review, in the debate on material alteration PA SH 8.5, which proposed to insert map-based

objective no. 38 in the CDP, Councillor Dean Mulligan, who proposed Motion No. 209 to

reject the Chief Executive’s recommendation not to adopt material alteration PA SH 8.5,

made the following representations to the meeting of the Council:

(a) he is trying to solidify the density on the site, given the importance of having a legal

precedent in a document that actually has and is considered as part of the legal framework

of planning documents;

(b) masterplans have been materially contravened successfully on numerous occasions;

(c) it is not fair when the Council gives generous densities, and developers come in with

net densities of 170, 180, 190 and say ‘like it or lump it because it is getting agreed’;

(d) appropriate densities should exist in appropriate locations and that those locations

should be solidified in the development plan;

(e) we do not know what the new process after the SHD will look like, and not enough

large scale developments have gone through the process to be able to say how fruitful it will

be in terms of solidifying masterplans.

(f) the Apartment Guidelines ruined good planning and created a situation where

developers are hoarding land because they want to make more money on it and build over

and above.

(g) this was why ‘we have so much bloody land zoned and we can’t build’ because after

2017 and 2018, developers realised they have [planning] permission for 5 years and so

could wait the 5 years because they could get double what they want then.”

108. The problem for the applicants is that Cllr Mulligan was clearly talking about developers

generally. The manner and timing by reference to which developers generally make applications is

a valid consideration because any given plan provision has to fit into an actual practical system. To

put it another way, his essential logic seems to me to be something along the following lines: given

that developers generally act in manner X, we need to make provision Y in order to achieve planning

outcome Z.

109. What is obvious from that is that in substance Cllr Mulligan was – legitimately and lawfully

– directing his attention and remarks to the planning outcome. The comment about developers was

in the context of what needed to be done in order to achieve what he considered to be that proper

planning outcome. This is all totally within the legitimate scope of evaluative judgement in the plan-

making process by members of a political assembly. Reasonable people can agree or disagree with

his analysis but it is within the realm of the legally valid.

110. To interpret this as some sort of impermissible personalised criticism of these applicants is

to commit the fallacy of interpreting a decision as invalid when a valid reading is available. These

comments could apply and can be read as applying to development on this land no matter who

owned it – they are not expressed as, nor are they in substance, personal to the current owners.

The mere fact that these applicants are in fact the present owners of the land concerned does not

have the implication that he was talking about them in some erroneously personal way or indeed at

all – his remarks are more properly to be construed as referable to whoever was going to develop

the land from time to time during the currency of the development plan. As with any text or

document, if a valid reading is available, as it is here, that is the reading to be preferred. There is

thus no analogy with daa plc v. Fingal County Council [2024] IEHC 589 (Unreported, High Court, 17

October 2024), where specific actions and stances of named landowners and occupiers were being

heavily referenced.

111. The overall problem for the applicants is that the density in the objective is nearly identical

to the density in the masterplan (at p. 1):

“Density Net: 105 -115 units/ ha”

112. The material amendment incorporated in the adopted plan was thus slightly more favourable

to the applicants as developers than the masterplan, since it pitched the density at 110-115 units/ha.

The applicants can’t plausibly complain about an aspect that is in their favour.

113. Thus the disagreement between Cllr Mulligan and the officials was not as to the principle but

as to the necessity for a plan provision given that it was already provided for.

114. The problem for the applicants’ argument is that the plan itself specifically provides for the

masterplans to be implemented. At p. 62:

“Operational Masterplans

The Council will continue to implement the Masterplans currently in place at the time of

adoption of the Development Plan. The operational Masterplans for Fingal County Council

are listed in Table 2.17 below.

Table 2.17: Operational Masterplans

• Dublin Airport Central Masterplan (MP 11.A)

• Swords Masterplans, June 2019 - includes Barrysparks (MP 8.B), Crowscastle (MP

8.D), Fosterstown (MP 8.C) and Estuary West (MP 8.A)

• Castlelands Masterplan, March 2021 (MP 4.A)”

115. At p. 63:

“Policy CSP8 – Implementation of Masterplans Implement Masterplans prepared in

accordance with the Development Plan.”

116. At p. 80:

“Objective CSO29 – LAPs, Masterplans and Frameworks Plans for Dublin City and Suburbs

As set out in Tables 2.15, 2.16, 2.17, 2.18 and 2.19

• Implement existing Local Area Plans and Masterplans within Dublin City and Suburbs

• Prepare and implement Local Area Plans for identified areas

• Prepare and implement Masterplans for identified areas

• Prepare and implement Framework Plans for identified areas within the Dublin City

and Suburbs area.”

117. At p. 83:

“Objective CSO44 – LAPs, Masterplans and Framework Plan for Swords

As set out in Tables 2.15, 2.16, 2.17, 2.18 and 2.19:

• Implement existing Local Area Plans and Masterplans within Swords.

• Prepare and implement Local Area Plans for identified areas.

• Prepare and implement Masterplans for identified areas.

• Prepare and implement Frameworks for identified areas within Swords.”

118. The applicants implausibly try to minimise these references as implementation without

incorporation. But you can’t implement something that doesn’t apply – the above provisions involve

applying the masterplans by necessary implication.

119. In short, the amendment is merely making express on the map what is already provided for

in the plan via the policy of implementing the masterplan. Certiorari makes no difference (and thus

would be inappropriate) even if counterfactually the premise of this ground had been made out.

Core ground 6 – discrimination and irrationality

120. Core ground 6 is:

“6. The decision of the Respondent to adopt map-based objective no. 38, as inserted by

material amendment PA SH 8.5, in the Fingal Development Plan 2023-2029 in relation to

the Applicants’ lands unlawfully discriminated against the private property interests of the

Applicants, was irrational and unreasonable in that it applied different reasoning to factually

similar situations and failed to take into account relevant considerations.”

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

“Core Ground 6

Alleged application of different reasoning to factually similar situations

Applicants’ Position

The Chief Executive’s Report on the submissions and observations made on the Draft CDP,

at page 578, referenced a submission which had been received in connection with lands at

Auburn House, Little Auburn and Streamstown off the R107 Malahide Road.

It was considered in that report that the requested insertion of a new Local Objective in

relation to that site would not be appropriate in circumstances where the site was subject to

a live planning application.

As at the date of the Impugned Decision, both the Applicants’ lands were similarly the subject

of ‘live’ planning applications. The Applicants were entitled expect that the Respondent

would act consistently, as any rational decision-maker should and, at the level of principle,

would not apply different considerations to situations involving practically identical planning

considerations.

In failing to act consistently in this regard, the Respondent’s decision was irrational,

unreasonable and failed to take into account a relevant consideration in that the same issue

had been dealt with in a diametrically opposed fashion in very similar factual and planning

circumstances arising on the same development plan-making process.

Respondent’s Position

The Applicants attempt to impugn the density objective imposed on their Lands by reference

to how other lands were treated during the 2023 CDP process is misconceived. Each decision

has to be considered by reference to the particular reasoning informing same – the

Applicants have failed to set out the full reasoning to the Councils’ decision in respect of

their land, and equally, the other lands which they purport to rely on.

In this respect, the Applicants seek to draw an equivalence between the Council’s decisions

on this Lands and those at Auburn House. However, beyond referring to an extract from

the Chief Executive’s Report, the Applicants make desultory efforts in purporting to present

that the situation in respect of the Auburn House lands was the same as that presenting in

respect of the Applicants’ Lands – it was not. For example, the Applicants do not refer to

the fact that the density range objective imposed over their Lands flowed from the strategic

approach to the Fosterstown area – with the 2023 CDP seeking to implement the Fosterstown

Masterplan. No attempt has been made to show how similar considerations presented for

Auburn House.

More fundamentally, the Council’s policy decisions in respect of one area/land, do not dictate

or govern its decision on others.

As has been set out above, the Elected Members acted in accordance with the requirements

of the PDA in adopting this objective and provided a clear planning rationale for so-doing,

which has not been impugned, or even addressed, by the Applicants.

The flaw with this Core Ground is perhaps best illustrated by the Applicants complete failure

to engage with the planning rationale informing the Council’s approach. The Applicants

cannot credibly seek to draw a comparison in decisions without properly understanding the

basis for the decisions – which would necessarily require them to engage with the

strategic/planning approach informing the Council’s decision for their lands, which they have

simply failed to do.”

122. I do appreciate that one could make a theoretical argument for inclusion of a similar express

provision as to density for other masterplan areas in the interests of complete academic consistency.

However, there are two reasons why that doesn’t translate into relief. The first reason is as set out

above – the map-based objective essentially repeats what is in the masterplan and what is thus

incorporated in the CDP, in terms that are slightly more favourable to the applicants. So none of

this properly arises.

123. To add to that, the densities in this masterplan are well in excess of those in either of the

other two Swords masterplans. The applicants acknowledge that in their statement of grounds:

“63. Each of the three areas of Fosterstown, Barrysparks & Crowscastle and the Estuary

West Masterplans provide density figures and general guidance. The Estuary West

Masterplan states: ‘Lower density houses have been incorporated along Jugback Lane, while

higher density apartments are located through the centre and south of the lands.’ The

Estuary West Masterplan also includes a map of density areas, a figure of 70-75 u/ha is

provided.

64. The Barrysparks & Crowscastle Masterplan does not provide a similar diagram of

density areas but instead provides a map of heights and residential typographies. A key

objective in relation to density provides as follows:

‘Provide residential accommodation at a net density of 95-105 units per hectare, with an

appropriate mix of houses and apartments to meet the needs of future residents of the area

and to diversify Swords’ existing housing stock.’”

124. But even if it provided for something materially less favourable (which it doesn’t), the

principle of non-discrimination does not preclude a degree of experimentation. It would be an unduly

doctrinaire and rigid application of the concept of equality to prohibit initial attempts to provide for

specific situations merely because other situations could be represented as comparable. What

O’Donnell C.J. said in O’Meara v. Minister for Social Protection [2024] IESC 1, [2024] 1 I.L.R.M. 437

at 22 has a resonance here even allowing for a somewhat different legal context: “there is some

benefit in the Legislature being allowed to experiment and to proceed incrementally”.

125. So this point does not in fact arise but if it did arise, no unlawful discrimination or a fortiori

irrationality would have been made out.

126. For similar reasons the complaint regarding inconsistency with the council’s response to

another development site the subject of a live planning application is unfounded:

“67. Further, the Chief Executive’s Report on Draft Plan Consultation referenced, at page

578, a submission which was received in connection with lands at Auburn House, Little

Auburn and Streamstown off the R107 Malahide Road requesting ‘...inclusion of a special

objective in the new County Plan that Auburn House and attendant grounds are only suited

to extremely low density and limited residential development and any development to be

subject to proper protection of Auburn House and Attendant Grounds.’

68. The Chief Executive responded as follows:

‘The lands at Auburn House have been zoned for residential development for many years.

National policy on building heights and densities set out direction on the form of the

redevelopment of the lands at this location. Auburn House and lands are the subject of a

live SHD Planning Application, with a decision due in August 2022 (TA06F.313360 refers).

The description of development is: “Preservation of Auburn House (a Protected Structure)

and stables as 1 no. residential dwelling, conversion of stables to provide storage space for

Auburn House, construction of 368 no. residential units (87 no. houses, 281 no. apartments),

creche and associated site works.” It would not be appropriate to insert a new Local

Objective in relation to Auburn House, while this area is subject to a live planning

application.’”

127. That was a case where the amendment would have been a significant change to the density

applicable to the site. In this case, the density associated with the development site would not have

been significantly different without the amendment.

128. The applicants claim that the amendment “elevates a non-statutory master plan” into CDP

status – but that downplays the existing incorporation of the masterplans by way of wording

elsewhere.

129. Thus an argument based on different treatment of identical situations (relying on O’Neill J.

in Grealish v. An Bord Pleanála [2006] IEHC 310, [2007] 2 I.R. 536, [2006] 1 I.L.R.M. 140 and

Porter v. An Bord Pleanála [2017] IEHC 783 (Unreported, High Court, O’Regan J., 21 December

2017), in particular at §25) doesn’t get off the grounds – these are not identical situations.

130. As of the adoption of the CDP there were two live planning applications as pleaded:

“71. Of particular relevance in this context is the existence of a pending application for

permission for SHD made by the Second Applicant (Board ref. ABP-313331-22). The Board’s

decision on that application is awaited.

72. Similarly, as noted in Part 3 below, on 3 February 2021 An Bord Pleanála (the

‘Board’) granted permission to the MKN Property Group for strategic housing development

on the part of the subject lands within the ownership of the First Applicant (ref. ABP-308366-

20). That application was made with the consent of the First Applicant as landowner. That

permission is under legal challenge, and, in the event that challenge is successful, the Board

may be required to reconsider the application for permission for SHD anew. In those

circumstances, the de-zoning of the subject lands and the insertion of a density cap is an

impermissible attempt to interfere with any future consideration of the application by the

Board.”

131. ABP-313331-22 (the Murphy lands to the south) was refused.

132. ABP-308366-20 (the MKN lands to the north) was granted (278 units) but quashed by order

of 27 July 2024 perfected on 9 August 2024 (2021 0245 JR O’Reilly v. An Bord Pleanála – MKN

submitted opposition papers but the matter was not in the end contested for reasons that I do not

have a record of to hand) and remitted. The remitted application is numbered PA06F 320806-24

and remains pending (https://www.pleanala.ie/en-ie/case/320806).

133. To be clear, the fact that I am not persuaded that the plan should be quashed obviously

does not inhibit the commission from considering whether to permit additional densities in the light

of the compact settlement guidelines, climate legislation or otherwise, in the context of either the

existing strategic housing development (SHD) application to the north of the lands or any future

hypothetical large-scale residential development (LRD) application to the south. More generally, it’s

not obviously apparent how compliance with the ambitious climate targets in domestic and EU

legislation can be achieved without a greater concentration of any new development in terms of both

density and building height, although consideration of that is of course for planning decision-takers

in the first instance subject to contrary submissions from process participants and to judicial review,

which as the present case illustrates is open to all stakeholders, including developers. The rule of

law is meant to ensure appropriate recourse for everyone, not just for particular groups that may

be societally favoured from time to time. I am open to being corrected as usual, but it seems to me

that the evaluative judgement of the commission is a more promising route for the applicants to

make their points than quashing the plan or any part of it on the basis of the complaints made here,

even if counterfactually grounds for that had been established.

Summary

134. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that the elected members are entitled to change the zoning of

land and that the court should be slow to interfere with their democratic decision in

that regard;

(ii) applying such law to the facts here, the applicants have not overcome the onus to

show any illegality in that decision;

(iii) it is settled law that an applicant’s point must be workable in order to warrant the

grant of relief;

(iv) applying such law to the facts here, even if counterfactually this was a case where

land was being de-zoned in the sense of the relevant guidelines, any alleged duty to

set out at greater length than was done here how the council implemented hundreds

of pages of text in more than two dozen ministerial guidelines would not be workable

– the fact that the applicants single out one single favourable decontextualised

provision and demand more narrative analysis of that alone does not provide a valid

legal basis to restrict the unfeasibly extensive obligation that would be thereby

unleashed;

(v) it is settled law that a decision should be read as valid if a valid reading is

available; and

(vi) applying such law to the facts here, the remarks of the elected member who

proposed the impugned map-based objective can be read as valid, but in any event

the objective adopted was more favourable to the applicants than the density that

would otherwise apply via incorporation of the masterplans even in the absence of

the objective, so certiorari of that objective would be inappropriate in any event.

Order

135. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed;

(ii) there be a recital in the order that the development plan incorporates densities as

set out in the masterplans which it states are to be implemented, and thus the

impugned map-based objective is not less favourable to the applicants than the

density that would otherwise apply in the absence of that objective;

(iii) unless any party applies otherwise by the time and in the manner set out below, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

(including no order as to any reserved or adjourned costs or costs not otherwise

dealt with);

(iv) the foregoing proposed order be subject to contrary written legal submission or any

consequential application supported by a written legal submission, such submission

to be delivered within 7 days, with replies by other parties within a further 7 days;

(v) for the avoidance of doubt, any unsuccessful application to vary any provisional

order as to costs proposed in this judgment may be addressed pursuant to O. 103

r. 40(4) RSC; and

(vi) the matter be listed at 09:30 on Monday 18 May 2026 to confirm the foregoing.