High Court dismisses judicial review claiming Minister ignored applicant's planning submissions in housing direction decision.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

THE HIGH COURT PLANNING & ENVIRONMENT JUDICIAL REVIEW [2026] IEHC 46 Record No. 2023/1070 JR IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

Between MICHAEL DUFFY Applicant and THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE and OFFICE OF THE PLANNING REGULATOR Respondents and CLARE COUNTY COUNCIL Notice Party JUDGMENT OF MR JUSTICE DAVID HOLLAND, DELIVERED ON 30 JANUARY 2026

Contents JUDGMENT OF MR JUSTICE DAVID HOLLAND, DELIVERED ON 30 JANUARY 2026 ............................................. 1

INTRODUCTION & SOME PRELIMINARY DECISIONS............................................................................................ 2

Grounds 4, 3 & 1 & some Introductory Observations as to the Law .............................................................. 3

Access to National Roads & Others’ Submissions - Decision .......................................................................... 4

Unusual Proceedings ....................................................................................................................................... 5

Collateral Attack .............................................................................................................................................. 7

CHRONOLOGY & CONSIDERATION OF GROUNDS ............................................................................................... 9

Ground 4 – Decision ...................................................................................................................................... 16

Ground 3 – Decision ...................................................................................................................................... 17

Chronology Resumed .................................................................................................................................... 17

Scope of Minister’s Power on Receipt of OPR’s S.31AN(4)(a) Recommendation to issue a Direction &

Tactical Implications thereof ......................................................................................................................... 20

Chronology Resumed .................................................................................................................................... 21

Ground 1 - Decision ....................................................................................................................................... 22

CONCLUSION ..................................................................................................................................................... 22

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

INTRODUCTION & SOME PRELIMINARY DECISIONS1

1. Mr Duffy, a lay litigant, engineer, environmental activist and resident of Kilfenora, County Clare, with a particular interest in what he considers to be the inadequacies of wastewater treatment in that county, seeks by these proceedings certiorari quashing the First Respondent’s (the “Minister”) Planning and Development (Clare County Development Plan 2023-2029) Direction 2023 (“the Impugned Direction”) made on 3 August 2023 under section 31 PDA 2000.2 Thereby, on the statutory recommendation of the Second Respondent (the “OPR”), the Minister directed amendments to the Clare County Development Plan 2023- 2029 (the “CDP”) as it had been adopted by the elected members (“the Members”) of the Notice Party (“the Council”) on 9 March 2023.

2. I do not propose here to recite the highly complex and iterative statutory processes leading to a ministerial direction under section 31 PDA 2000. I respectfully refer the reader to decisions such as FoIE3 and Mount Salus.4

3. Broadly, the Impugned Direction has two aspects:

• §2a deletes from the CDP its residential zoning of 20 identified areas – reverting in 19 of them to various non-residential zonings which had been envisaged for those areas in the Draft CDP5 but which had been residentially zoned in the CDP on foot of Material Alterations to the Draft CDP statutorily adopted by the Members in the plan-making process. The Minister’s stated reasons include the view that Material Alterations had residentially zoned additional land in excess of county requirements and/or in peripheral/nonsequential locations, in breach of various national and regional planning policy objectives.

• §2b deletes from the CDP’s policy to avoid permitting access from adjoining lands, including from individual houses, to national roads6 to which speed limits of greater than 60km/h apply, the possibility of allowing such access in exceptional circumstances of existing accesses onto national secondary roads.

4. As to §2a of the Impugned Direction, Mr Duffy’s underlying substantive complaint, and that of his submissions in the statutory process which resulted in the Impugned Direction, is that the CDP, even as amended by the Impugned Direction, still contains residentially-zoned areas for which wastewater treatment is absent or inadequate and will remain so for the duration of the CDP. In other words, he says that the rationale of §2a of the Impugned Direction was not carried into full effect by Impugned Direction such that the CDP is inconsistent with that rationale by reason of such remaining residential zonings. Short of irrationality, this is an argument as to the merits of the Impugned Decision and cannot yield relief in judicial

1 Headings are not a curial part of this judgment and do not circumscribe the content thereunder. They are provided for navigational assistance only.

2 Planning and Development Act 2000, as amended.

3 Friends of the Irish Environment v Minister for Housing [2024] IEHC 588 §50 et seq.

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

The Draft CDP had been prepared and put out to consultation pursuant to ss.11 & 12 PDA 2000 ad part of the statutory development plan-making

process. As to the 20th residentially-zoned area - (Ennis LDR2) – the direction was to amend the zoning objective and associated text to open space -

consistent with the recommendation of the Chief Executive’s s. 12(4) Report of 10 July 2022, and the Material Amendment proposed at Volume 3a of

the proposed amendments to the draft Plan dated 28 November 2022.

11.2.9.3 Access onto National Roads.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

review. Insofar as he relies on a limited number only of his pleaded grounds, Mr Duffy makes no pleaded case of irrationality.

GROUNDS 4, 3 & 1 & SOME INTRODUCTORY OBSERVATIONS AS TO THE LAW

5. The other grounds for which leave to seek judicial review was sought having been abandoned, the remaining live core grounds on which relief is sought are as follows. I have reordered them to better reflect the workflow in the direction adoption process.

CG7 4 The Minister’s Direction is invalid because the s.31AN(4)8 Notice from the Office to the Minister, which grounds the Direction, is flawed and incomplete because it did not have regard to all the submissions made.

CG3 The Minister’s Direction is invalid because he should have recognised that the s.31AN(4) notice issued by the Office to the Minister clearly indicates that consideration of all the submissions did not occur.

CG 1 The Minister’s Direction is invalid because he did not have regard to my submission made on foot of a published notice prescribed in s.31(7)(c)9 which notice clearly stated that my submission shall be considered before it makes a recommendation to the Minister.

6. While I have had regard to his various pleadings and submissions, it bears observing that, having in the Statement of Case10 summarised his position as to Ground 1, as to Grounds 3 and 4 Mr Duffy’s contribution to the Statement of Case says only “As set out above for core ground 1”. This reflects the fact that, whatever its elaboration by reference to the various duties of the OPR and the Minister, Mr Duffy’s case is essentially grounded in a single overall allegation – of failure, in the statutory process which resulted in the Impugned Direction, to have regard to his submissions.

7. Mr Duffy’s underlying theme, which I accept as valid, is that public participation is fundamental to planning processes. I also accept that he exercised his rights of public participation at all times in the statutory process which led to the Impugned Direction and was entitled to regard to his submissions by the OPR and the Minister. In fairness to him, he recognises that the process simply has to have regard to

7 Core Ground - as pleaded in Mr Duffy’s amended Statement of Grounds of 7 December 2023.

8 s.31AN(4) PDA 2000.

9 s.31(7)(c) PDA 2000.

See Practice Direction HH 124, Planning And Environment List, §99.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

submissions and does not require that they be accepted and acted upon them as otherwise the system would be unworkable.

8. As will be seen above, each remaining live Ground asserts a failure of regard to submissions. Many cases have considered this obligation11 – which falls to be contrasted with obligations of compliance. Notable is the recent summary of the law in this regard by Humphreys J in Coolglass12 and his observation in Cork County Council13 that “No kind of compliance is required by a have-regard obligation, merely regard.”

The obligation to “consider” or “have regard” is a “light burden in respect of which no kind of compliance by

the decision-maker is required”. A “decision-maker obliged to “have regard to” a factor bears a light burden,

is free to give no weight to it and is judicially reviewable as to merit in that regard only for irrationality” –

Fernleigh.14 A lack of narrative discussion does not imply failure of regard, and the duty of regard does not in itself require reasons for not accepting that to which regard was to be had - Four Districts.15 Also, in judicial review and with very limited exceptions irrelevant here, the onus of proof rests on the applicant – Mr Duffy - at all times: – i.e. administrative decisions are rebuttably presumed valid. (see Foran16).

ACCESS TO NATIONAL ROADS & OTHERS’ SUBMISSIONS - DECISION

9. It is convenient to observe at this early point that Mr Duffy more or less conceded, rightly in my view, that insofar as he sought in submissions to impugn §2b of the Impugned Direction as to access to national roads, he had not pleaded the point.17 Pleading rules in judicial review being strict (e.g. Reid #718), I hold that he may not pursue it. I will therefore consider that issue no further.

10. It is also convenient to now observe that, while he did not formally abandon the point, Mr Duffy did not argue that the Impugned Direction should be quashed for alleged failure in the decision-making process to consider submissions other than his own. As Mr Duffy did not really pursue the point, it suffices to mention FoIE19 to the effect that, under the doctrine of jus tertii, applicants in judicial review are not entitled to argue an alleged violation of the rights of a third party where they cannot show that their own rights have been affected. I uphold the objection that Mr Duffy may not argue a ius tertii and so may not argue that the Impugned Direction should be quashed for alleged failure in the decision-making process to consider submissions other than his own. I will therefore consider the grounds no further as they relate to

11 Some are listed in Jones v South Dublin County Council [2024] IEHC 301 §163.

12 Coolglass §63 & 64.

13 Cork County Council v Minister for Housing, Ireland and the Attorney General, [2021] IEHC 683: Also, Killegland Estates Limited v Meath County

Council [2022] IEHC 393. “the requirement was to “have regard to” those guidelines, not to comply with them …”;

14 Fernleigh RA CLG v An Coimisiún Pleanála [2025] IEHC 655 §39 & 56.

15 Four Districts v An Bord Pleanála [2023] IEHC 335 §113.

16 Foran v An Coimisiún Pleanála & Glenveagh [2026] IEHC 23, citing Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2

I.R. 701 at p. 743; Cork County Council v Minister for Housing, Local Government and Heritage (No. 1) [2021] IEHC 683 §57; Monkstown Road Residents

Association v An Bord Pleanála [2022] IEHC 318 (Unreported, High Court, 31 May 2022) §96,; Moran v An Bord Pleanála [2025] IEHC 510 §14; In re

Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5 December 1977) Campus Oil v Minister for Industry and Energy (No. 2) [1983] I.R. 88 at 102;

Grassridge v Dun Laoghaire Rathdown County Council [2024] IEHC 669 §22; Moran v An Bord Pleanála [2025] IEHC 510 §15. O’Doherty and Waters v

Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 §116 is authority that the onus of proof of the disproportionality of

interference with a constitutional right remains on the applicant for judicial review – though that issue does not arise in the present case.

17 Transcript p24.

18 Reid v An Bord Pleanála (No. 7) [2024] IEHC 27 §48 et seq.

Friends of the Irish Environment v Minister for Housing, Fingal County Council, OPR & DAA [2025] IECA 128 §§3 & 42.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

submissions other than Mr Duffy’s. So, the greater including the lesser and his reliance on his own submissions being more than adequately clear from Mr Duffy’s pleading, I will read CG4 and CG3 as if the words “all the submissions” read “my submissions”.

UNUSUAL PROCEEDINGS

11. It can next be said that these are unusual proceedings. At least in my experience to date, the substantive (as opposed to the legal) objections of applicants to quash ministerial directions have been to positive content of such directions.20 Typically, a landowner objects that the direction “dezones” his land - from, say, residential use to open space, with resultant reduced development potential ( and commercial value) of the land. Here, Mr Duffy objects not to what is in the Impugned Direction, but to what is not in it. He says it doesn’t go far enough.

• Viewed tactically and as will have been seen, Mr Duffy’s remaining grounds of challenge to the Impugned Direction are pleaded entirely on fair procedures grounds – essentially that, in the statutory process which resulted in the Impugned Direction, regard was not had to his submissions. Of some importance, the submissions on which he relied in argument as having been ignored were his of 10 May 2023 on the Draft Direction which had been, in accordance with statute, put out to public consultation.

• As to zoning and wastewater issues, Mr Duffy objects to nothing substantive in the Impugned Direction.

Indeed, my impression is that he agrees with much, if not all, of its positive content as it deletes many residential zonings.

• Viewed strategically, Mr Duffy’s underlying complaint is rather, as pleaded and as submitted by him in the statutory process which resulted in the Direction, that o in addition to those lands addressed in the Impugned Direction, the CDP as adopted by the Council had incorrectly zoned land for residential use which should not have been so zoned given what Mr Duffy asserts is widespread inadequacy - substantive and legal (at EU and domestic law) - of wastewater treatment in the agglomerations21 of County Clare (of which he identified examples).

o the Impugned Direction omits to require greater changes in the CDP than it did: it did not go far enough, in accordance with his submissions in the statutory process which resulted in the Impugned Direction, in requiring changes to the CDP. In short, he says, the Impugned Direction should have deleted from the CDP, for reasons of inadequacy of wastewater treatment, the residential zoning of many more lands than it did delete.

20 The OPR has helpfully listed in submissions much of the caselaw as to challenges to ministerial directions. See, inter alia: Voyage Property Ltd v Limerick

City and County Council [2025] IEHC 696; Mount Salus Residents’ OMC CLG v An Bord Pleanála [2025] IEHC 14 (under appeal); Friends of the Irish

Environment CLG v The Minister for Housing, Local Government and Heritage [2025] IECA 128; Balindooley Developments Limited v The Minister for

Housing, Local Government and Heritage [2025] IEHC 109; Friends of the Irish Environment CLG v The Minister for Housing, Local Government and

Heritage [2024] IEHC 588; Cork County Council v The Minister for Housing, Local Government and Heritage [2021] IEHC 683; McCarthy Meats v. The

Minister for Housing, Planning and Local Government [2020] IEHC 371; and Tristor Ltd v Minister for Environment, Heritage and Local Government and

Ors. [2010] IEHC 397.

20 See s.31AM(8) of the PDA and the Court’s interpretation of the same in at §100.

Generally, an agglomeration can be thought of as a city, town or village.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

12. In this light, there is a degree to which it is unclear what Mr Duffy really wants from the proceedings. Certainly, he cannot achieve any result which will directly “dezone” those lands which, he says, the Impugned Direction ought to have dezoned but did not dezone. If the Direction is quashed, a number of possible consequences could arguably follow.

• First it could be considered that the CDP reverts to the zonings adopted by the Council and deleted by the Impugned Direction. Clearly that would be an own goal from Mr Duffy’s point of view. It would not “dezone” those lands which Mr Duffy says ought to have been dezoned and, worse from his point of view, would rezone to residential use those lands which the Impugned Direction did dezone.

• Second, the direction-making process could be remitted for redecision to the point at which it went wrong. In practice, remittals of quashed directions have not been the norm – but pending full argument I would not rule out the possibility. Remittal to the point in the process where it first went wrong would, on the Grounds remaining live and as he argued them, be to, at earliest, the point at which the OPR was required to consider Mr Duffy’s submission of 10 May 2023 on the Draft Direction in deciding the terms of its Notice to the Minister under s.31AN(4) PDA 2000 recommending that he issue what became the Impugned Direction.

o At that point in a remitted process, if impressed by his submissions, the OPR could, under s.31AN(4), form the opinion that a material amendment to the Draft Direction may be required and appoint an inspector to consider that issue. (Mr Duffy did not dispute - and in any event it is obvious - that the amendments to the Draft Direction which his submissions suggested would have been material, not minor.)

o Appointing an inspector would start a further process22 which, ultimately and in principle, could result in a ministerial direction including a material amendment in greater or lesser degree reflecting acceptance of Mr Duffy’s submissions and so deleting in greater or lesser degree the residential zonings to which he objects.

I am unaware that such a process has ever in practice been embarked upon or that its parameters and possibilities in law have ever been authoritatively determined. Also, as a practical matter, for the appointment of an inspector to yield a result to his liking, quite a number of variables would have to resolve in his favour.

Nonetheless, remittal does seem, at least in principle, to hold out for Mr Duffy a hope that his submissions could be reconsidered and adopted in a reconsidered ministerial direction. It cannot be said that remittal to that point in the process would be legally incapable of producing, in whole or in part, the substantive result Mr Duffy desires – the deletion from the CDP of the residential zonings to which he objects.

• Third, the Impugned Direction might be quashed on the basis that the lands in question would remain unzoned. To my knowledge that course has been taken in cases of certiorari of ministerial directions. In

Under s.31AN (6 – 9).

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

that case Mr Duffy could repeat his submissions, in hope of a result more to his liking, in any proposed re-zoning of the lands by the Council in a CDP variation process.

13. These three may not be the only possible outcomes of certiorari. But they suffice to conclude, on balance, that from his point of view and as to securing the zoning outcomes which he seeks, Mr Duffy’s proceedings are not futile. Nor, in fairness, was a futility argument pushed against him: the foregoing observations largely derive from my own sense that the proceedings are unusual for the reasons described and my initial puzzlement as to what they could achieve for Mr Duffy in practical terms.

COLLATERAL ATTACK

14. The Minister,23 the OPR and the Council say that the gravamen of Mr Duffy’s claim is that the Impugned Direction should have required changes to the CDP beyond those specified in the Impugned Direction – of which direction, they say, Mr Duffy has no complaint. They cite Jones24 for the uncontroversial proposition that s.50 PDA 2000 has the effect that, with limited exceptions, if within 8 weeks of its adoption it is not challenged - specifically by judicial review - the validity of a development plan cannot be questioned. They cite a Sweetman case25 in arguing that this is a collateral attack on the CDP – which, by s.50 PDA 2000 should be vulnerable only to a direct attack by judicial review of the CDP itself. Sweetman emphasises

• practicality and substance, over the form of the proceedings, in terms of the legal defect they identify, whether a particular decision is in reality “questioned” in the proceedings, and the effect of the relief sought.

• requirements of legal certainty – the entitlement of affected persons to rely on an administrative

decision not challenged in time in judicial review. I accept their characterisation that Mr Duffy, at base, disagrees with many of the residential zonings in the CDP and his ultimate hope is to secure their deletion. In that sense, his overall aim can be viewed as an attack on the CDP – questioning its validity.

15. However, I do not think this is a case of impermissible collateral attack on the CDP. It is, rather, a case of Mr Duffy choosing between two legitimate means of attack which the PDA 2000, if unusually given the terms of s.50, offered him: one, direct, by judicial review; the other, indirect by participation in the direction process and therein seeking to persuade the Minister to his view and to make a direction accordingly. Putting it a little glibly, the law provided him with two ways to skin the cat.

16. Mr Duffy had 8 weeks26 from its adoption to seek leave to seek judicial review of the CDP. He did not do so. But within that period the Minister had, by notice pursuant to s.31(3)&(4) PDA 2000, notified the

23 as pleaded at §§5-7 of the Statement of Opposition.

Jones v. South Dublin County Council [2024] IEHC 301 §183.

25 Sweetman v An Bord Pleanála & Houston, [2018] IESC 1, [2018] 2 IR 250 §34 et seq. - citing KSK Enterprises Ltd v An Bord Pleanála [1994] 2 IR 128,

Goonery v Meath County Council (Unreported, ex tempore, High Court, Kelly J, 15 July 1999), Lennon v Cork City Council [2006] IEHC 438 and Nawaz v

Minister for Justice [2012] IESC 58, [2013] 1 IR 142.

Leaving aside for present purposes any possibility of an extension of that period.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

Council of his intention to issue a direction - enclosing the Draft Direction. Thereby, the Minister continued a statutory process in which Mr Duffy was entitled, thereafter and as a matter of law, to participate. It seems to me that as the PDA 2000 made that process, and his participation in it, available to him, and as that process inherently had the potential to discern illegality in and require amendment of the CDP, he was entitled to avail of it in order to influence the content of any direction which might ensue and amend the CDP. Importantly, just as does judicial review of a development plan, a Direction of its very nature asserts and seeks to correct illegality in – i.e. questions the validity of - a development plan. Mount Salus27 and the

cases it cites are clear to this effect. As was said in Ballindooley,28 “The essential premise of a direction is a

ministerial opinion that the development plan is tainted by illegality ...”

17. So in exercising his statutory right to seek, by his submissions, to influence the terms of a direction by expanding its scope in whatever degree, Mr Duffy would inevitably be seeking to persuade the Minister of an element of illegality in the CDP. That is the very nature of the process in which the law entitled him to participate. So, it seems to me, Mr Duffy was entitled to seek by his submissions to influence the OPR, the Minister and the terms of the Direction in furtherance of his aim to have zonings to which he objected deleted from the CDP. Of course, he took the chance that his submissions might not influence the OPR, the Minister and the terms of the Direction, as in fact they did not. But that consideration could not deprive him of his choice and entitlement to participate in the process.

18. Once he was a legitimate participant in the direction-making process he had, at least generally, a legitimate interest in ensuring that the process was carried out lawfully – which is the issue his remaining three grounds raise. And, as he says at present, he is not seeking to force the Minister to issue a direction in any particular terms. He simply wants his submissions considered.29

19. I therefore reject the assertion of impermissible collateral attack on the CDP.

20. That said and as will be seen, it might well have been tactically wiser of Mr Duffy, once he discerned in the CDP the illegalities as to zoning which he asserted in his submissions on the Draft Direction, to have sought judicial review of the CDP as to any illegalities not addressed in the Draft Direction. For substantive success in procuring the material amendments of the Draft Direction which he sought, he was reliant on the OPR’s appointing an inspector to consider possible material amendments as, by the point at which the Minster was considering Mr Duffy’s submissions, the Minister’s scope to amend the OPR’s proposed direction was limited to minor amendments and that would not have sufficed to satisfy Mr Duffy – compliance with whose submissions clearly would have required material, not minor, amendments of the Proposed Direction.

Mount Salus Residents v An Bord Pleanála, Minister for Housing, OPR & Smyth [2025] IEHC 14 §11 and generally. Also Tristor Ltd v. Minister for

Environment, [2010] IEHC 397, [2010] 11 JIC 1103; Friends of the Irish Environment v. Minister for Housing [2024] IEHC 588; Voyage Property v

Limerick City & County Council, Minister for Housing & OPR [2025] IEHC 696 §206 et seq.

28 Ballindooley Developments v the Minister for Housing, the OPR & Galway City Council [2025] IEHC 109 §12.

Transcript p155.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

21. Indeed, there is a considerable argument, expressed at trial,30 that on Mr. Duffy's view of things his complaint in these proceedings ought to have been that the OPR failed, on considering his submissions, to appoint an Inspector to consider the possibility of a material amendment to the Draft Direction. But, as Mr Duffy accepts,31 no such case was pleaded.

CHRONOLOGY & CONSIDERATION OF GROUNDS

22. Given the terms of Grounds 4, 3 and 1, I can omit a description of much of the earlier parts of the chronology of the development plan review and plan-making process and the Council/OPR interaction therein. However, I note that Mr Duffy made a detailed submission on the Draft CDP which the Chief Executive of the Council (the “CE”) summarised as relating to land use zoning and wastewater treatment (i.e. essentially similar issues to those he later submitted as to the Draft Direction) and to which the CE responded in his report on those submissions - explaining why he did not recommend any resulting amendments to the Draft CDP.32 Notably,

• The CE’s report summarises and responds to Uisce Éireann’s submission on the draft CDP33 - including as to the interaction of zoning and wastewater treatment and infrastructural requirements. Inter alia, Uisce Éireann tabulates extracts from its wastewater treatment capacity register by way of overview of its ability to cater for planned population growth.

• In response to Mr Duffy the CE stated, inter alia, that Uisce Éireann had provided a critique of identified proposed zonings and an account of planned upgrades of, and investment in, wastewater treatment plants across the county and of available capacity headroom therein. That information would inform CDP content.34

23. As has been seen, at the Material Alterations stage of the CDP-making process, the Members had residentially zoned significant additional lands.35 The OPR, Uisce Éireann and Mr Duffy also made submissions on the proposed material alterations to the Draft CDP – which submissions the CE summarised and to which he responded in a further report.36 In that report, inter alia, the CE records and responds to

• Uisce Éireann’s submission and the OPR’s submissions - inter alia, expressing concerns as to wastewater treatment availability/capacity/upgrade requirements in respect of certain proposed material alterations.37

30 Transcript p77 et seq.

31 Transcript p159 & 160.

32 Chief Executive’s Report to the Elected Members on submissions received on the Draft Clare County Development Plan 2023–2029 Part I of IV 10th

July 2022, Submission No: S2/940 – Michael Duffy, p569 et seq.

33 Submission No: S2/013 – Uisce Éireann (IW), p250 et seq.

p571 et seq.

35 Draft Clare County Development Plan 2023–2029, Volume 1 Written Statement, Proposed Amendments, 28th November 2022.

36 Chief Executive's Report to the Elected Members on submissions received on Proposed Amendments to Draft Clare County Development Plan 2023–

2029 - Prepared in accordance with Section 12(8) of the Planning and Development Act 2000, as amended. 30th January 2023.

Submission No: S3/011 – Irish Water p126 et seq.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

• Mr Duffy’s submission38 raising, inter alia, similar issues as to the zoning/wastewater treatment relationship in the context of SEA.39 By way of example only, the CE records that Mr Duffy “questions the quantum, location and distribution of new development and the regard which was had to the capacity of existing and planned wastewater services infrastructure together with environmental considerations.”

The CE agrees that the Proposed Material Alterations include residential zoning on unserviced lands and agrees with some but not all of the content of the concerns expressed.

24. Agree or disagree in substance with any of them, it is clear from this report that the OPR, Uisce Éireann and the CE addressed the zoning/wastewater treatment relationship in detail and in the case of the CE, addressed Mr Duffy’s submission as to that subject matter.

25. Following the Minister’s notice of 18 April 2023 pursuant to s.31(3) & (4) PDA 2000, notifying the Council of his intention to issue a direction and enclosing a Draft Direction, the Council, as it was obliged by s.31(7) PDA 2000 to do, published on 28 April 2023 a newspaper notice inviting the public to make written submissions on the Minister’s notice and Draft Direction. Mr Duffy, in argument, emphasises the content of

this notice. It is not unfair, I think, to regard it as, in chronological terms at least, the jumping off point of his

case. The newspaper notice stated that such submissions:

“… shall be included in the Chief Executive's Report and shall be taken into consideration by the Office of the Planning Regulator before it makes a recommendation to the Minister on the matter.

…… all submissions received may be published online in accordance with the requirements of the Planning and Development Act 2000, as amended, and will be summarised in the Chief Executive's Report, which will be published.”

S.31(7)(c) PDA 2000 requires that the newspaper notice state that such submissions “shall be taken into consideration by the Office of the Planning Regulator before it makes a recommendation to the Minister on the matter”. However, this must be read in the context of the mechanism provided by the PDA 2000 whereby the content of those submissions is conveyed to the OPR by report of the CE in which the submissions are summarised - as to which, see below.

26. Mr Duffy made his submission accordingly – dated 10 May 2023. For present purposes, it can be characterised by his assertion that

“The vast majority of settlements in Clare do not have appropriate wastewater treatment and some have none. This is in flagrant breach of National legislation and European Directives. Any proper assessment of the proposals in these plans would have recognised that most of the agglomerations in County Clare cannot be zoned for development at this time or within the timelines covered by this plan.” 40

38 Submission No: S3/154 – Michael Duffy p295.

39 Strategic Environmental Assessment.

Transcript p38/39 – Mr Duffy accepts this passage as his “essential objection”.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

27. Mr Duffy emphasises his submissions’ reliance on NPO 72a-c of the NPF.41 However, his submission of 10 May 2023 cites NPO 72a-c only once, incidentally, and not by way of invoking it. NPO 72c states that “When considering zoning land for development purposes that cannot be serviced within the life of the relevant plan, such lands should not be zoned for development”. In my view, and remembering that the CE’s Report summarising and responding to the submissions on the Draft Direction is addressed to planning experts - the OPR and the Minister – the passage from his submissions cited above in substance conveys Mr Duffy’s concerns as they may have derived from NPO 72a-c. In due course, the Impugned Direction cited NPO 72a-c – though not to the effect desired by Mr Duffy.

28. Mr Duffy also emphasised the obligation of a local authority to ensure that its development plan is consistent with NPOs – citing s.12(18) PDA 2000. He might also have cited s.10(1A) PDA 2000, which states the substantive obligation of such consistency. However, Mr Duffy bears the onus of overcoming the presumption of validity of the Impugned Direction. I accept, for sake of argument, his argument that if a local authority bears an obligation to ensure that its development plan is consistent with NPOs, it follows that the OPR and the Minister bear a like obligation in a process intended to result in amendment of a development plan – otherwise the resultant direction would direct an illegality in the form of an inconsistency of the development plan with the NPO in question. However, Mr Duffy did not address, in pleadings, submissions or argument, the complexities and degrees of the underlying requirement of consistency of development plans with NPOs as reflected in decisions such as Killegland,42 Mount Salus43 and Voyage.44 These cases analyse the requirement of consistency as requiring consideration whether the invoked NPO is, in greater or lesser degree, precatory and aspirational and whether the obligation of compliance is, in the particular circumstance, more or less general or detailed. Failing such argument, I cannot see Mr Duffy as having overcome the presumption of validity as to compliance of the CDP with NPO 72a-c.

29. The CE's Report of 7 June 2023,45 made pursuant to s.31(8)&(9) PDA 2000, discretely summarised Mr Duffy’s submissions, as was required.46 Of some importance, the CE did so in terms which Mr Duffy (though his written submissions were to the contrary) in argument accepted were fair and adequate.47 In those circumstances there is no need to review the adequacy of the report by reference to the principles set out in Pat O’Donnell.48 Inter alia, the report records Mr Duffy’s view that the Minister must direct that all zonings necessitating wastewater treatment in the adopted CDP must be removed until these matters are properly addressed to facilitate sustainable compliant development. Thus, he recorded the essence of Mr Duffy’s

41 National Planning Objectives 72 a-c of the National Planning Framework 2018. (Replaced in 2025). National Policy Objective 72 provides:

a Planning authorities will be required to apply a standardised, tiered approach to differentiate between i) zoned land that is serviced and ii)

zoned land that is serviceable within the life of the plan.

b When considering zoning lands for development purposes that require investment in service infrastructure, planning authorities will make a

reasonable estimate of the full cost of delivery of the specified services and prepare a report, detailing the estimated cost at draft and final plan stages.

c When considering zoning land for development purposes that cannot be serviced within the life of the relevant plan, such lands should not

be zoned for development.

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

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

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

Chief Executive's Report on submissions received in relation to the Draft Ministerial Direction to the Clare County Development Plan 2023-2029, 7th June 2023.

46 P24. Submission No: S4/015 – Michael Duffy. See also Appendix 1 List of Submissions Received.

47 Transcript p34 & 41.

Pat O’Donnell & Co v Dublin City Council [2024] IEHC 671.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

submission. The CE responded to submissions thematically by reference to particular zoned locations. Quite a number canvassed wastewater treatment issues. In quite a number of instances, the CE recommended against effecting aspects of the Draft Direction – including by reference to wastewater treatment issues and on the expectation of wastewater infrastructure within the CDP’s lifetime.

30. In passing I note, given a premise of the Draft Direction that certain lands should not be zoned residential where not served by adequate wastewater infrastructure, the CE’s assertion that

“Uisce Éireann recently indicated at a presentation to the Elected Members that only settlements which have land zoned for development will be considered by Uisce Éireann for future capital investment in key wastewater infrastructure. This creates a significant disparity between national and regional policy support for the provision of rural wastewater infrastructure, how Uisce Éireann target capital investment for this infrastructure and the future sustainable growth of numerous rural villages.”

31. In other words, the CE suggested that Uisce Eireann requires that zoning precede wastewater infrastructure provision, whereas planning policy arguably requires the opposite. As has been seen, NPO72c states that “When considering zoning land for development purposes that cannot be serviced within the life of the relevant plan, such lands should not be zoned for development”. Whatever the nuances, merits and demerits of either view or of any via media between them, whatever the role of central government funding

of local authorities in this regard49 and whether or not this “chicken and egg” policy disparity in fact exists,

even the perception in senior administrative circles that disparity does exist is disquieting.

32. As required by s.31(8) PDA 2000,50 the CE sent his report on the submissions on the Draft Direction to both the OPR and the Minister. I understand that the submissions themselves were not sent to the OPR and the Minister at this point.51 But the PDA 2000 did not require that they be sent. Importantly, Mr Duffy accepts that the CE’s report contained (and so conveyed to the OPR and the Minister) a fair summary of his submissions. It is notable that, from this point in the process,

• the statutory obligation to convey the substance of Mr Duffy’s submission to both the OPR and the Minister had been complied with by sending to them the CE Report which had fairly summarised that submission.

• both the OPR and the Minister were in possession of a fair summary of his submission.

The papers refer to a funding mechanism called “Measure 8 – Waste Water Collection Treatment Needs for Villages and settlements without Public

Wastewater Services”.

50 “(8) …. the chief executive shall prepare a report on any submissions …. which shall be furnished to the elected members of the planning authority,

the Office of the Planning Regulator the Minister and, where relevant, the regional assembly concerned.”

Transcript p112.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

33. In FoIE52 it was observed that

“the obligation on the Chief Executive to publish a report summarising the submissions received meets the concern identified in Balz,53 i.e. to ensure that there is trust on the part of the public that its voice will be listened to in the decision-making process. Here, the appellants' submissions were summarised in the Chief Executive's report, meeting the concern identified in Balz that the public trust their voice will be listened to in the decision-making process.”

34. It is an oddity of the statutory scheme that it does not require publication of that CE report. In that

light I confess to difficulty in seeing how it can reliably play the reassuring role envisaged in FoIE. Indeed, this

case illustrates the point. The Council did not publish the report. They say that anyone who visited their offices and asked for it would have been shown it.54 But as the availability of that facility was in no way publicised, and as in any event website publication is the de facto contemporary norm, that hardly meets contemporary expectations of effective publication. The result was that Mr Duffy, not having seen the report, issued these proceedings under a misapprehension, for reasons I need not elaborate, that the CE had, in his report, deemed his submission irrelevant. In fairness to the Council when, later, they read his Grounds and saw his misapprehension, they published the report and sent it to him. And, as I say, he now accepts that its summary of his submissions is fair and adequate. The lesson is that, statutorily required or not, timely publication of such reports is prudent.

35. However, leaving aside the issue of publication of the report, the clear premise underlying the view

in FoIE that the report met the public trust that participants’ “voice will be listened to in the decision-making

process” was that the provision of a report to the OPR and the Minister fairly summarising the submissions, even in the absence of sending the Minister and the OPR the submissions themselves (which the PDA 2000 does not require), met both the statutory obligation and the substantive requirement of procedures fair to the public participants in the process. Indeed, it is notable that, just as the statutory scheme requires that elected members’ submissions on the draft direction are copied to the Minister, the PDA 2000 could easily have likewise provided that submissions from the public should go to the Minister. But it did not. In light of the provision as to members’ submissions, that cannot have been accidental. The Oireachtas, in the PDA 2000, satisfied itself with the CE’s report on submissions from the public going to the Minister. Remembering that the precise requirements of fair procedures vary with context and that the underlying principle is fairness (Dellway55) and bearing in mind the content of FoIE cited above, I have heard no convincing argument that the process adopted by the PDA 2000, of providing to the OPR and the Minister a CE report containing a fair and accurate summary of and response to the submissions, as opposed to the submissions themselves, was unfair by reference to standards of constitutional justice such that a requirement arises to impute to the PDA 2000 an implied obligation to send the submissions themselves to the OPR and the Minister.

52 Friends of the Irish Environment v Minister for Housing, Fingal County Council, OPR & DAA [2025] IECA 128 §147.

53 Balz v. An Bord Pleanála [2019] IESC 90.

54 Transcript p131.

Dellway Investments & McKillen v National Asset Management Agency [2010] IEHC 364, [2011] IESC 4, [2011] IESC 13 & [2011] IESC 14, [2011] 4 IR 1.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

36. On its receipt of the CE’s report on submissions on the Draft Direction, the next step in the process lies with the OPR. S.31AN(4) PDA prescribes that it “shall consider” that report. This provision, considered with the absence of an obligation on the Council to send the submissions themselves to the OPR, makes it apparent that the prescribed means of fulfilment of the assurance in the newspaper notice, as prescribed by S.31(7)(c) PDA 2000, that the submissions “shall be taken into consideration by the Office of the Planning Regulator before it makes a recommendation to the Minister on the matter” is by way of the OPR’s consideration of the report of the chief executive on the submissions.

37. The OPR pleads56 and by affidavit verifies, that, contrary to Mr Duffy’s assertions, his submissions were considered in the statutory process which resulted in the Impugned Direction – including in, inter alia, the CE’s Report of 7 June 2023 on the submissions on the Draft Direction, and in the OPR’s s.31AN(4) Notice of 27 June 2023 to the Minister recommending that he “issue the Direction with minor amendments as per the attached proposed final Direction.”

38. I have sight of the lengthy internal report dated 19 June 2023 by a senior planner of the OPR to the

Planning Regulator (“PR”) himself (the “Internal OPR Report”) in respect of the CE’s report of 7 June 2023

and as to whether to recommend a Direction to the Minister. The Internal OPR Report set out in detail the CE’s views as to, inter alia, delivery of wastewater infrastructure and advised the PR to recommend to the Minister that the direction be effected in terms of the Draft Direction.

39. As to the public submissions on the Draft Direction, the Internal OPR Report explicitly purports to be a “Summary of CE summary of issues raised in public submissions”. Whatever one’s theoretical nervousness at the prospect of attenuation by a summary of a summary, and despite Mr Duffy’s criticisms,57 I do not consider that, in this particular case, the Internal OPR summary of the CE’s summary of his submission was unfair or substantively inadequate. It seems to me to have clearly conveyed his essential critique in no uncertain terms. As to Mr Duffy’s submission, the Internal OPR Report reads as follows:

“Refers to the number of times WWT RPO11k - ‘To plan increasing population growth in all Key Towns on a phased basis in collaboration with Uisce Éireann, the local authority and other stakeholders to ensure that the assimilative capacity of the receiving environment is not exceeded and that increased wastewater discharges from population growth does not contribute to degradation of water quality and avoids adverse impacts on the integrity of water dependent habitats and species within the Natura 2000 network’.

The SEA including the AA for the NDP and RSES and the adopted Clare County Development Plan are flawed as the vast majority of settlements in Clare do not have appropriate wastewater treatment and some have none. This is a flagrant breach of national legislation and European directives.

Every wastewater treatment plant in County Clare is in breach of the European Directive 91/271/EEC which seeks to protect the environment from the adverse effects of wastewater discharges.

56 Statement of Opposition §22.

Transcript p47 et seq.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

All zonings necessitating wastewater treatment in the adopted plan must be removed until these matters are properly addressed to facilitate sustainable compliant development, as it is not appropriate to permit on-site wastewater treatment systems within designated settlements as a solution to a lack of municipal services, which contravenes compact growth objectives.”

40. The Internal OPR Report comments on Mr Duffy’s submission by asserting that it “Does not raise issue directly related to the draft Direction.”. Mr Duffy, perhaps surprisingly but I think ultimately correctly, did not try to make much of this. The comment, which must, if it is reasonable to do so, be read as valid rather than invalid, was correct in that Mr Duffy’s submission did not relate to or suggest the amendment or omission of any of the positive content of the Draft Direction. And the Internal OPR Report did, as has been seen, explicitly record Mr Duffy’s submission that “All zonings necessitating wastewater treatment in the adopted plan must be removed until these matters are properly addressed to facilitate sustainable compliant development ...”.

41. As has been seen, the obligations of the OPR at this point in the process derive from s.31AN(4) PDA 2000. Having considered “the report of the chief executive on the submissions, together with any submission made under section 31(10)”58 the OPR shall

“(a) recommend to the Minister that he or she issue the direction with or without minor amendments, or

(b) for stated reasons, where the Office is of the opinion that—

(i) a material amendment to the draft direction may be required, …. appoint a person to be an inspector.”

42. So, at this point, the OPR may recommend to the Minister that he or she issue the direction – but only “with or without minor amendments”. I hold, and Mr Duffy agrees, that by no stretch could the prescription of his submissions on the Draft Direction – in effect for wholesale additional deletions of residential zonings – have been considered a minor amendment. So, it was impossible that the OPR could have directly recommended to the Minister that he or she issue the direction amended as desired by Mr Duffy. It is easy to understand why, as a matter of fair procedures, the PDA 2000 so provided. Save to Mr Duffy, such a wholesale amendment of the Draft Direction at this stage would have come as a more or less unwelcome surprise to many participants and others affected by the process, who would not have had a chance to be heard thereon. The rationale is, no doubt, analogous to that which, by s.12(10) PDA 2000, restricts elected members to making only minor changes at the last stage in the development plan-making process.

43. If the OPR, on foot of Mr Duffy’s submission, had contemplated that a material amendment to the draft direction may be required, the only course open to it at that point was to appoint an inspector. Explicitly in light, inter alia, of the public submissions on the Draft Direction, the Internal OPR Report i.e. by elected members of the planning authority.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

considered and recommended against the appointment of an inspector. Mr Duffy did not plead that this consideration or recommendation or, indeed, the Planning Regulator’s acceptance of it, implicit in his approval of and sending to the Minister a Draft Direction with minor amendments, were in legal error. (He did plead that the Minister might have appointed an inspector – but that is a different matter and in fact the Minister has no such power.59)

44. The PR issued to the Minister a s.31AN(4) Notice and attached what I will call the “Proposed Direction” on 27 June 2023. The Proposed Direction bore minor amendments - not relevant to these proceedings - as compared to the Draft Direction. It explicitly recorded the OPR’s careful consideration of, inter alia, the CE’s Report of 7 June 2023 on the submissions by members of the public on the Draft Direction. This record necessarily captures consideration of Mr Duffy’s submissions. That consideration is verified, not merely by the OPR’s verifying affidavit, but by the explicit content of the Internal OPR Report which I have set out above. It also, in justifying its recommendation of deletion of a number of residential zonings from the CDP, canvassed issues of the zoning/wastewater infrastructure relationship – even if the OPR’s conclusions did not go as far in that regard as Mr Duffy wanted.

45. As to the OPR’s consideration, at this point in the process, of Mr Duffy’s submissions, the facts of the case, in particular the explicit terms of the s.31AN(4) Notice, fall well within the line of caselaw from G.K.60 via Rana61 to, most recently, KS.62 Those cases hold that it is not in general necessary in judicial review for a respondent to support a statement in the impugned decision that, in making it, specified material has been considered, with further evidence to prove the veracity of that statement. The rule is that a person claiming that a decision-making authority has, contrary to its express statement in the impugned decision, ignored representations which it has received, must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case. Evidence or reasoning that a person who has made submissions on a matter of evaluative judgment considers them so compelling that the only explanation for the fact that they were not accepted and effected is that no regard was had to them is not such evidence - save in a case surmounting the “extremely high” bar of irrationality (St Audoen’s63). As has been noted above, irrationality is not pleaded in the grounds remaining in the case.

GROUND 4 – DECISION

46. At this point in my consideration of the sequence of events, it seems to me possible to decide Ground 4 – which alleges that “The Minister’s Direction is invalid because the s.31AN(4) Notice from the Office to the Minister, which grounds the Direction, is flawed and incomplete because it did not have regard to all the submissions made.” As explained earlier, this ground must be read as relating, not to “all”

Amended Statement of Grounds §22.

60 GK v Minister for Justice [2002] 2 IR 418.

61 Rana and Ali v Minister for Justice [2024] IESC 46 §93.

62 K.S. v. The International Protection Appeals Tribunal [2026] IEHC 13 §91-92.

The Board of Management of St. Audoen’s National School v An Bord Pleanála [2021] IEHC 453.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

submissions, but to Mr Duffy’s submissions only. On the principles set out in G.K.64 Rana65 and KS,66 Mr Duffy bore the onus of demonstrating by evidence that his submissions were not considered by the OPR. As has been seen, the CE’s report to the OPR fairly summarised those submissions and responded - as did the Internal OPR Report. The s.34AN Notice records consideration of Mr Duffy’s submissions. Mr Duffy has adduced no evidence rebutting that record.

47. It follows that Ground 4 must be dismissed.

GROUND 3 – DECISION

48. Ground 3 alleges that “The Minister’s Direction is invalid because he should have recognised that the s.31AN(4) notice issued by the Office to the Minister clearly indicates that consideration of all the submissions did not occur.”

49. As Ground 4 is dismissed, Ground 3 must be dismissed: the Minister cannot be blamed for not recognising a flaw in the s.34AN Notice when, as I have held, that flaw did not exist.

CHRONOLOGY RESUMED

50. The Minister having received the s.31AN(4) Notice of 27 June 2023 and attached Proposed Direction, his next step was determined by the discouragingly phrased s.31(16) PDA 2000.

64 GK v Minister for Justice [2002] 2 IR 418.

65 Rana and Ali v Minister for Justice [2024] IESC 46 §93.

K.S. v. The International Protection Appeals Tribunal [2026] IEHC 13 §91-92.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

“Where paragraph (a) of section 31AN(4A),67 paragraph (a) or (c) of section 31AN(9),68 paragraph

(a) of section 31AP(4A)69 or paragraph (a) or (c) of section 31AP(9)70 applies to a matter to which this section relates, then the Minister shall issue a direction accordingly.”

51. In the present case s.31AN(4A)(a) applied. The Minister considered and agreed with the OPR’s S.31AN(4) recommendation to issue a direction and so was obliged to issue a Direction accordingly. It will be recollected that the Minister already had the CE Report of 7 June 2023 on submissions on the Draft Ministerial Direction, including its fair summary of Mr Duffy’s submission on the Draft Direction. It had the CE Report precisely because the statutory scheme required that he have it – see s.31(8) PDA 2000.71 As “the legislature must be deemed not to waste its words or say anything in vain” - Whillock72 - that can only be because the Minister, in performing his duties in the process, is expected to consider that report. And, for reasons I have given and on an harmonious interpretation of the statutory scheme, the Minister’s consideration of that report, at least where it contains a fair and accurate summary of the submissions on the Draft Direction, as opposed to the submissions themselves, suffices to meet the requirements of fair procedures. However, if I am wrong in that and for reasons which will now become apparent, it does not avail Mr Duffy.

(4A) The Minister shall consider a recommendation of the Office under subsection (4)(a) that he or she issue a direction with or without minor

amendments and —

(a) where the Minister agrees with the recommendation, the Minister shall, no later than 6 weeks after receipt of the recommendation, subject

to subsection (16), issue the direction under section 31 with or without minor amendments, or

(b) where the Minister does not so agree with the recommendation, then the Minister shall—

(i) prepare a statement in writing of his or her reasons for not agreeing,

(ii) cause that statement to be laid before each House of the Oireachtas, and

(iii) as soon as practicable, make that statement available on the website of the Department of Housing, Local Government and Heritage.”

(9) No later than 3 weeks (or as soon as may be during such period extending that 3 week period as the Office may decide) after receipt of the

report of the inspector, or of any submissions made to him or her, the Office, having considered the report, recommendations or submissions, as the

case may be, shall recommend to the Minister for stated reasons—

(a) to issue the direction,

(b) not to issue the direction, or

(c) to issue the direction, which has been amended by the Office to take account of any of the following matters as the Office considers

appropriate:

(i) recommendations contained in the report of the inspector;

(ii) any submissions made,

and, where paragraph (a) or (c) applies and the Minister agrees with the recommendation, then he or she shall, subject to subsection (16) issue the

direction under section 31 with or without minor amendments.

69 (4A) The Minister shall consider a recommendation of the Office under subsection (4)(a) that he or she issue a direction with or without minor

amendments and—

(a) where the Minister agrees with the recommendation, then the Minister shall, no later than 6 weeks after receipt of the recommendation,

subject to subsection (16), issue the direction under section 31 with or without minor amendments, or

70 (9) No later than 3 weeks (or as soon as may be during such period extending that 3 week period as the Office may decide) after receipt of the

report of the inspector, or of any submissions made to him or her, the Office, having considered the report, recommendations or submissions, as the

case may be, shall recommend to the Minister for stated reasons—

(a) to issue the direction,

(b) not to issue the direction, or

(c) to issue the direction, which has been amended by the Office to take account of any of the following matters as the Office considers

appropriate:

(i) recommendations contained in the report of the inspector;

(ii) any submissions made,

and, where paragraph (a) or (c) applies and the Minister agrees with the recommendation, then he or she shall, subject to subsection (16) issue the

direction under section 31 with or without minor amendments.

71 “(8) …. the chief executive shall prepare a report on any submissions …. which shall be furnished to the elected members of the planning authority,

the Office of the Planning Regulator the Minister and, where relevant, the regional assembly concerned.”

72 Cork County Council v Whillock [1993] 1 IR 231. Also DPP v Quirke (#1) [2023] IESC 5 (2023) 56 BHRC 24 and Pat O’Donnell & Co v Dublin City Council

& Uniphar [2024] IEHC 671.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

52. As it happens in this case, the Minister pleads and it is deposed on his behalf that, the relevant submissions were “before the Minister” when he made the Impugned Decision. At least in literal terms, that commonly used phrase arguably conceals as much as reveals when proffered as evidence of regard to a document. Regard does not consist in mere physical possession of a document: more is required. As was said in Coyne,73 citing extensive caselaw:74

“ …. it is clear that a decision-maker obliged to have regard to something must, for purposes of making its decisions, fully inform itself of that something - “consult the document” - and interpret it correctly. This requires a positive engagement by the decision-maker with that something. “Hence if the decision-maker fails to even look at the documents or matters to which it is to have regard, … a ground for certiorari arises.”

53. As to evidence of, as opposed to the substance of, such regard, while the caselaw says that a ground for certiorari arises “if the evidence doesn’t demonstrate” (Killegland75 - cited by Mr Duffy) that the decisionmaker has looked at the document, that observation must be understood in light of the principle set out in G.K.76 Rana77 and KS78 that if the impugned decision states that regard was had to the document, that suffices as the required demonstration and the onus then is on the party challenging that to prove otherwise by evidence.

54. For reasons which will presently become apparent, nothing turns in this case on the phrase “before the Minister”. There may be arguments in another case, for example, as to whether actual regard by a minister’s officials would suffice in a given case. But where, as was apparently the case here, the phrase is proffered as evidence of regard by the Minister himself, I respectfully suggest that euphemism is best avoided: if it is intended to say that the minister had regard to a document, in the sense described in Coyne, it seems reasonable to expect that the deponent will say so explicitly.

55. However, in this case nothing turns on the phrase as the facts are particular. Mr Duffy in written submissions asserts that the Minister was “did not seek to inform himself of the contents of the submissions.” I reject that assertion. In fact, the Minister took the unusual course, not required by statute and apparently on his own initiative, of actively seeking out the submissions by members of the public – including, I infer, Mr Duffy’s. Ms Mulhern, for the Minister, verifies his Statement of Opposition – to the effect that, although not

73 Coyne v ABP, Ireland & EngineNode [2023] IEHC 412 §20.

74 McEvoy v Meath County Council [2003] I.R. 208; Board of Management of Temple Carrig Secondary School v An Bord Pleanála [2017] IEHC 452.

Pinewood Wind Ltd & Element Power Ltd v The Minister for Housing, [2018] IEHC 697; Merriman & FIE v Fingal County Council [2017] IEHC 695; Higgins

v An Bord Pleanála [2020] IEHC 564 §24. Redmond v An Bord Pleanála [2020] IEHC 151 §94. “A decision-maker cannot be said to have properly had

regard to objectives or policies which it has misunderstood.”; Killegland Estates Limited v Meath County Council [2022] IEHC 393, regard “presupposes

a correct understanding”. Tesco Stores Limited v Dundee City Council [2012] UKSC 13 “a planning authority must proceed upon a proper understanding

of the development plan … the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have

regard to the provisions of the plan if it fails to understand them”. Also Cork County Council v. Minister for Housing, Local Government and Heritage (I)

(No. 1) [2021] IEHC 683, [2021] 11 JIC 0502. B.C (Zimbabwe) v. International Protection Appeals Tribunal [2019] IEHC 488, [2019] 7 JIC 0207 and

Atlantic Diamond Ltd. v. An Bord Pleanála [2021] IEHC 322, [2021] 5 JIC 1403.

Killegland Estates Limited v Meath County Council [2022] IEHC 393, Cork County Council v. Minister for Housing, Local Government and Heritage (I)

(No. 1) [2021] IEHC 683, [2021] 11 JIC 0502.

76 GK v Minister for Justice [2002] 2 IR 418.

77 Rana and Ali v Minister for Justice [2024] IESC 46 §93.

K.S. v. The International Protection Appeals Tribunal [2026] IEHC 13 §91-92.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

required by the PDA 2000 to do so, before making his decision as to the Direction, the Minister asked his officials to ask the Council to publish on its website all public submissions received in relation to the Draft Direction. That request was made79 and the Council complied and so advised the Minister.80 A link to all 25 submissions was included in the briefing material on the Direction that was sent to the Minister by his officials to enable him to make his decision on the Impugned Direction. I presume the Minister did not act in vain. It seems unlikely that the Minister would have sought out the submissions only to ignore them once to hand.

56. In those particular and (I imagine) unusual circumstances, I think it proper to infer as a matter of probability that the Minister in fact had regard to the submissions, including Mr Duffy’s. Indeed Mr Duffy, fairly, accepted that inference as probable – though he maintained that such regard to the submissions should have been recorded in the Impugned Direction.81 As a matter of good practice I generally agree with Mr Duffy by analogy with the practice of An Comisiúin Pleanála, in its planning appeal decisions, of listing matters which it has considered. But where I have inferred that the Minister in fact had regard to the submissions, including Mr Duffy’s, it is clearly not open to me to quash the Impugned Direction for failure of such regard merely because that regard was not expressly recorded in the Impugned Direction. All else aside, such certiorari would be disproportionate to the error, if even it is a legal error, of failure to record such regard on the face of the Impugned Direction. That said, I respectfully invite the Regulator to consider relevant practice in this regard.

SCOPE OF MINISTER’S POWER ON RECEIPT OF OPR’S S.31AN(4)(A) RECOMMENDATION TO ISSUE A DIRECTION & TACTICAL IMPLICATIONS THEREOF

57. As I have said, in the present case s.31AN(4A)(a) applied. The Minister considered and agreed with the OPR’s S.31AN(4) recommendation to issue a direction with or without minor amendments and he did so. Mr Duffy says that the Minister should have disagreed with the OPR’s S.31AN(4) recommendation on the basis that the Direction did not go far enough in deleting residential zonings by reason of wastewater treatment inadequacy. It is therefore of interest to note that in that event the Minister’s power of action would have derived from and been limited by s.31AN(4A)(b) PDA 2000. His only power would have been to place a statement of his reasons for disagreeing with the OPR’s S.31AN(4) recommendation before the Houses of the Oireachtas and to publish it.82 If he disagrees with the OPR’s S.31AN(4)recommendation beyond the need for minor amendments, no direction issues.

58. The Minister cannot, at that point in the process, materially rewrite the Proposed Direction. So, had the Minister agreed with Mr Duffy’s submissions on the Draft Direction, which all agree would have required material amendments to the Proposed Direction had the Minister accepted them, the result would not have been a direction to Mr Duffy’s liking: it would have been no direction at all. Given he agreed with the

79 By e-mail dated 3 July 2023.

80 By e-mail dated 4 July 2023.

81 Transcript p32.

on the website of the Department of Housing, Local Government and Heritage.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

Direction as far as it went, from Mr Duffy’s point of view this would have been the worst of all worlds. However, as to the statutory scheme, what this illustrates is that by the time the Minister considered the submissions on the Draft Direction and whether to issue a Direction in accordance with the OPR’s S.31AN(4)(a) recommendation, the statutory opportunity had passed for discerning additional illegalities in the CDP such as would have merited a material amendment to the Proposed Direction. As counsel for the Minister put it, at this stage the Minister cannot rewrite the Proposed Direction “wholesale”.83

59. In truth, the logic of the statutory scheme is that

• if, in considering making submissions on a draft direction, a member of the public discerns illegalities in the development plan beyond those identified in the draft direction, the correction of which would require greater-than-minor amendments to the Draft Direction,

• and given that such person cannot assume the OPR will, in agreement with that person’s submissions, appoint under s.34AN(4)(b) an inspector to consider the possibility of material amendment of the draft direction,

• such member of the public might well be wise to pursue the illegality in question by seeking leave to seek judicial review of the development plan.

CHRONOLOGY RESUMED

60. On 3 August 2023, the Impugned Direction issued to the Council under cover of a letter of the same date. Unlike, say, a decision of An Comisiúin Pleanála, and for reasons not apparent, such directions do not contain a list of matters to which regard has been had. I confess I am also unclear why a lengthy covering letter, duplicating much of, but expanding on the content of, the direction, accompanies such directions. Why not put all that is necessary in the Direction itself? I am also unclear whether such letters are published? But perhaps there is good reason for their use and Mr Duffy did not suggest that I should not have regard to that letter as illuminating the Impugned Direction. So I will do so - if only as a matter of evidence of fact. In the present case, the covering letter records the Minister’s receipt and consideration of the OPR’s s.31AN(4) Notice and attached Proposed Direction and the Chief Executive's s.31(8) Report – i.e. that of 7 June 2023 which discretely summarised Mr Duffy’s submissions on the Draft Direction. Again, it seems to me that the facts fall within the scope of the principles set out in G.K.84 Rana85 and KS.86 The Minister having positively asserted consideration of the CE Report which in fact contained a fair and accurate summary of Mr Duffy’s submissions, it fell to Mr Duffy to disprove that assertion. He has not done so.

83 Transcript p74.

84 GK v Minister for Justice [2002] 2 IR 418.

85 Rana and Ali v Minister for Justice [2024] IESC 46 §93.

K.S. v. The International Protection Appeals Tribunal [2026] IEHC 13 §91-92.

Duffy v Minister of Housing, OPR & Clare County Council [2026] IEHC 46

GROUND 1 - DECISION

61. As has been seen, Ground 1 alleges that “The Minister’s Direction is invalid because he did not have regard to my submission made on foot of a published notice prescribed in s.31(7)(c) which notice clearly stated that my submission shall be considered before it makes a recommendation to the Minister.”

62. This ground contains two allegations: a want of consideration of Mr Duffy’s submissions before a recommendation was made to the Minister and a want of their consideration by the Minister himself.

63. The word “it” here can only refer to the OPR. The published notice prescribed in s.31(7)(c) PDA 2000 was, on the facts of this case, the Council’s newspaper notice of the Draft Direction. As I have held above, the requirement that the OPR consider Mr Duffy’s submission was met by its consideration of the CE's s.31(8) Report of 7 June 2023 which discretely summarised Mr Duffy’s submissions on the Draft Direction made in response to the newspaper notice. It follows that, in terms of Ground 1 and contrary to its assertion, Mr Duffy’s submission was considered by the OPR before it made its recommendation to the Minister.

64. As to the second allegation of this ground, the fundamental problem with Mr Duffy’s critique of the s.34AN(4) Notice to the Minister as not disclosing regard to his submissions is that it ignores the fact that the CE’s s.31(8) Report summarising Mr Duffy’s submissions was also sent to the Minister. On an harmonious interpretation of the statutory scheme, I hold that the requirement that the Minister consider Mr Duffy’s submission was met by his consideration of the CE’s s.31(8) Report – which consideration is explicitly recorded in the letter covering the Impugned Direction and which Mr Duffy has not disproved. If I am wrong in that regard, I hold as a matter of inferred fact that the Minister had regard, not merely to the Chief Executive's s.31(8) Report, but to Mr Duffy’s submissions themselves which he had personally bespoken. On either view, and again in terms of Ground 1 and contrary to its assertion, the Minister did have regard to his submission.

65. It follows that Ground 1 must be dismissed.

CONCLUSION

66. All the live Grounds – 4, 3 and 1 - having been dismissed, the proceedings must be dismissed. I will list the case for final orders on 9 February 2026.

30/1/26