In two judgments delivered together late in December 2023, the Supreme Court (the Court) dismissed appeals in respect of challenges regarding zoning changes to the Meath County Development Plan for 2021 to 2027 (the Development Plan). The challenges had previously been dismissed by the High Court in July 2022, with the Supreme Court granting leave to appeal in determinations dated 28 March 2023. See our previous note here.

In Killegland Estates Limited -V- Meath County Council [2023] IESC 39 (Killegland), the Court addressed a number of issues before ultimately dismissing the appeal.

Challenges to the entirety of a plan or challenges to parts of a plan?

The High Court had decided that, in order to challenge part of a plan which was set by the core strategy of the plan, that core strategy had to also be challenged. The Court disagreed with this approach and held that it was not necessary on the facts of this case for Killegland Estates to challenge the entirety of the Development Plan. The Court noted that it would be “perfectly possible” for the courts to quash parts of development plans if the invalidity of individual zoning decisions affecting relevant applicants was established. The Court noted that a challenge to the entirety of a development plan would only generally be possible where the plan was adopted following an “inherently structurally flawed process” or was based on an incorrect interpretation of the Planning and Development Act 2000.

Reasons for re-zoning decisions

The Court began by stating that any zoning of land in a development plan could be subject to change at a future date via the democratic process by the elected members of the local authority. It noted that given the nature of the decision-making process of the local authority, reasons for a particular decision may not be as neatly packaged as they may be had the decisions been made in other fora.

The Court referred to the leading authority regarding the giving of reasons relating to a development plan; Christian v Dublin City Council [2012] IEHC 163 (Christian). In Christian the court concluded that while, in general, elected members were not required to give reasons in respect of the policy aspects of a plan, where individual rights (such as those of prospective developers) were affected then reasons were required. Where the members departed from the recommendations of experts in planning and zoning, the onus to give reasons was even more necessary.

The Court held that in the present case where the councillors had gone against the advice of the Chief Executive and the planning officials, the reasons for their decision needed to be clear either from the resolution itself or from the documentation before the councillors when the resolution was discussed. The Court found that the reasons were contained in the minutes of the meeting and the papers supporting the resolution. The Court also accepted that the reasons given for the de-zoning were valid planning reasons and that while some considerations were taken into account by the councillors which were not relevant, these factors were described as being “at best marginal” and were not sufficient to invalidate the overall decision.

Compliance with the National Planning Framework (NPF) and the Regional Spatial and Economic Strategy (RSES)

The Court found that the language used in the relevant sections of the NPF suggested that it was “largely…aspirational” rather than mandatory in nature and concluded that the de-zoning did not infringe any objectives contained in the NPF or RSES.

In McGarrell Reilly Homes Limited & Anor -V- Meath County Council [2023] IESC 40 (McGarrell) the Court recommended that the judgment be read in conjunction with Killegland given the overlap of issues. One issue dealt with in McGarrell which was not addressed in Killegland related to the question of whether a Council can commit itself to reserving certain lands as residential lands beyond the lifetime of an existing development plan. The Council here had reserved the lands in question for future housing development beyond the lifetime of the existing plan (the 2013-2019 Development Plan) by way of an amendment to the plan (the variation). On foot of the commitment from the Council, McGarrell had spent a considerable amount of money on preparing the lands in question for subsequent residential development. The new development plan for 2021-2027 de-zoned or re-zoned the lands in question and was adopted by councillors. The validity of this decision was then challenged.

The Court held that despite the language in the variation, the Council could not legally give a commitment to reserve certain lands for residential purposes in future development plans. This was a matter to be determined by the elected members of the Council when they came to vote on a new development plan. The lands in question were therefore not zoned lands for either the purposes of the 2013-2019 Development Plan or for the NPF or RSES. Because of this finding the Court concluded that no infrastructure assessment report was required to be prepared.

The Court also held that the reasons given for the zoning decision were sufficiently “rational, intelligible and comprehensive” to meet the threshold required.

Key takeaways

  • The decisions provide welcome clarity regarding the ability of developers and other affected parties to challenge parts of development plans rather than having to challenge the entirety of the relevant plan.
  • The decisions underscore the requirement for reasons to be given where changes are made to development plans and such changes affect individuals, such as prospective developers. The giving of reasons is particularly important where decisions are made which go against the advice of planning and zoning experts.
  • McGarrell clarifies that local authorities cannot legally commit to reserving certain lands for particular purposes after the lifetime of a current development plan. The adoption of a development plan and related zoning decisions is a task which is legally assigned to the elected representatives of the council at the relevant time, and the courts will be very slow to interfere with this process, even where developers have expended money on foot of zoning commitments from the council.

For more information please contact Alison Fanagan, Consultant and Joint Head of A&L Goodbody’s Environmental & Planning Group, Rachel Kemp, Senior Knowledge Lawyer, or any member of our Environmental & Planning Group.