High Court of Ireland Decisions

APPROVED                                                               [2025] IEHC 149

 

harp graphic.

 

 

 

THE HIGH COURT

PLANNING AND ENVIRONMENT

 

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND

                                                DEVELOPMENT ACT 2000

 

2024 604 JR

BETWEEN

 

PROTECT EAST MEATH LIMITED

APPLICANT

AND

MEATH COUNTY COUNCIL

RESPONDENT

 

 

JUDGEMENT of Mr Justice Nolan delivered on the 14^th day of March 2025

Introduction

1.                  The Applicant in this case is a nonprofit organisation whose mission is to ensure that future development in East Meath has the strongest possible environmental protection. It has brought these judicial review proceedings seeking an order of mandamus in circumstances where it says that the Respondent ("the Council") has failed to commence the process of making  a Local Area Plan ("LAP")  for an area in County Meath known as Laytown-Bettystown-Mormington-Donacarney ("East Meath") pursuant to Sections 19(l)(b) and 19(l)(c) of the Planning and Development Act 2000 ("the 2000 Act").

2.                  The Council has already conceded that it is in breach of its statutory obligations and has consented to a declaration to that effect.

3.                  This application, however, is to mandate the Council to carry out that statutory obligation, in circumstances where the Applicant says it has repeatedly refused to commence the preparatory work required to put the LAP in place and is simply avoiding its statutory obligations for its own administrative convenience and to the detriment of proper planning and sustainable development, particularly where it has already consented to a declaration of breach of statutory duty. This amounts to a form of special pleading.

4.                  As against that, the Council says the court should exercise its discretion to decline the mandatory relief on the basis of what it describes as the exceptional circumstances it faces and its resource constraints, which would render an order of mandamus entirely disproportionate and not in the public interest. This would inhibit and prevent the Council from performing and fulfilling its other statutory functions, whilst providing unfair priority to the Applicant to, in essence, "veto" decisions of the Council as to which limited resources are to be allocated in the fulfillment of its functions.

5.                  That is the issue which the court must decide.

 

Legislative Framework

6.                  Section 9 of the 2000 Act sets out a planning authority's obligation to make a development plan, as follows:

"9.—(1) Every planning authority shall every 6 years make a development plan....

(2) Subject to subsection (3), a development plan shall relate to the whole functional area of the authority.

7.                  Section 10 of the 2000 Act prescribes the content of development plans, and includes the following requirements, which include the provision of certain obligations as regards environmental protection:

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

8.                  The written statement sets out a core strategy which shows the development objectives of the development plan are consistent with national and regional development objectives set out in the national planning framework. It also deals with other matters including the zoning of land, the provision of infrastructure, waste recovery and conservation and protection of the environment. It is, in essence, comprehensive, particularly in regard to environmental matters.

9.                  Section 10(2A) requires that the core strategy, set out in the written statement of the development plan, prescribes inter alia a "settlement hierarchy" in respect of the area of the development plan. The settlement hierarchy provides details in relation to the city and town's policy objectives of the Government or Minister in relation to national and regional population targets that apply to them. The term is defined as meaning a rank given by a planning authority to a city or town in the area of its development plan, with a population that exceeds 1,500 persons in the census of population most recently published. Thus, the area we are concerned with in this case is a city or town which falls into the settlement hierarchy.

 

10.              Section 19(1)(6) imposes an obligation on a planning authority to make or amend such plan at least every 6 years after the previous plan. The only exception to this is where a resolution is passed not more than 5 years after the making of the previous plan. No such resolution was passed in this case.

 

Factual Background

11.              The factual background is pretty much agreed between the parties. Indeed, there is very little that divides them. However, what little that does divide them, divides them fundamentally, thus this application.

12.              The East Meath LAP 2014 to 2020 was adopted in July 2014 and expired in October 2020.

13.              The Meath County Development Plan 2021-2027 ("the Development Plan") came into effect on the 3^rd of November 2021. The East Meath is designated as a "self-sustaining town settlement" in the settlement hierarchy prescribed in the Plan.

14.              No further LAPs have been prepared in respect of the area. The Council accepts that this failure represents a breach of its statutory duties.

15.              The Applicant wrote to the Council in August of 2023, calling upon it to commence the making of the LAP within 28 days, otherwise these proceedings would issue. The Council responded in September of 2023, saying it had an indicative forward planning program and that there were other strategy plans of greater planning priority which first needed to be addressed and that it had limited resources. Thereafter in November of 2023, the Applicant noted that there was no commitment to commence the process of making the LAP, saying that there was no provision within the Act which allowed such preparation being contingent upon the availability of resources.

16.              Thereafter the proceedings were instituted and served in June of 2024. By letter of the 7^th of October 2024 the Council indicated an intention to concede the proceedings and on the 16^th of October 2024, they indicated that they would consent to a declaration that it was in breach of its statutory obligations, with the balance of the proceedings to be adjourned generally.

17.              The matter came before Humphreys J. on the 11^th of November 2024. The Court was appraised of the correspondence. Whilst there is some dispute between the parties as to precisely what was put before the court, it does not seem to me that this case will be decided one way or the other based upon either party's view of what was agreed or said. The important point, however, is that the court indicated that it would grant the proposed declaratory relief.

18.              In December 2024, the Council wrote and identified a number of 'challenges' faced by it in relation to a number of Judicial Reviews, the Residential Zoned Land Tax and personnel difficulties. It also identified several relevant objectives and considerations in the adopted Development Plan and that " ... the failure to adopt an LAP has not prevented the implementation of planning and development policies and objectives relating to East Meath."

19.              It further argued that, assuming that Section 81 of the 2024 Act comes into effect, the LAP for East Meath would be prepared and adopted in March 2026, and would only remain in force for 15 months until the 2027-2037 Development Plan would be adopted.

 

The Submissions

20.              Mr. Dodd SC for the Applicant says its case is very simple. He says that prima facia his client is entitled to an order of mandamus, on the basis that the Council has conceded the case and consented to the declarations sought and made. Therefore, he primarily focused upon the reasons or excuses given by the Council for not doing so.  These were set out in an affidavit of Mr. Alan Russell, the acting senior planner of the Planning Department of the Council, where he made a number of points which formed much of the legal submissions of Ms. Hughes BL for the Council.

21.              The first argument is that the failure to adopt an LAP has not prevented the implementation of planning and development policies and objectives relating to the East Meath area. The Development plan also includes local policy and objectives unique to the area. Further transport and active travel project had been completed and that there were other developments including the development of a Bettystown library.

22.              None of this is accepted by the Applicant who says this is to miss the point. The scheme of the Planning and Development Act is clear that LAPs fulfil a separate, granular and distinct function from the Development Plan and the fact that it addresses the functional area is irrelevant to the case.

23.              A second explanation of the Council is in regard to the new Planning and Development Act, signed into law in October of 2024. Pursuant to Section 81(1), the consultation and adoption of Local Area Plans will be repealed and any existing LAPs will only remain in effect for the duration of its designated term or until a new development plan is bought in, whichever is the shorter. The argument, therefore, is that given what is likely to happen in the near future, it would be a waste of time, money and resources to prepare an LAP in those circumstances.

24.              In response, Mr. Dodd says that the new intended provisions may never come into operation and effect and that the Council must apply the law as it is and not as it might be. There is some truth to this assertion.

25.              The final explanation or excuse is that of limited resources. This is specifically referred to in the Statement of Opposition as being five legal challenges to the Development Plan, legislative policy changes including the Residential Zoned Land Tax, Development Plan Guidelines for Local Authorities 2022 which was introduced on the 1^st of July 2022, the Sustainable and Compact Settlement Guidelines for Planning Authorities 2024 and the Planning and Development Act 2024, all of which absorbed limited time and precious manpower. Crucially, the Council encountered significant difficulties in recruitment of experienced candidates.

26.              The Applicant rejects these excuses and in particular, the issue of legislative policy changes. It says that it is clear from an analysis of the information provided by the Council that resources were available but were not applied in order to address its statutory obligations in priority to non-statutory obligations. These included non-statutory masterplans, the making of submissions in relation to draft national guidelines or the undertaking of variations to the Development Plan and 'Settlement Capacity Audits' that are not required by primary legislation. While these may be of some importance, they do not compare with the mandatory statutory obligation which must, in essence, come first.

27.              In regard to the argument that there were unforeseen legal challenges, the Applicant says that is not a good enough reason since local authorities are always subjected to challenges. That may be the case, but such litigation has its effect as I will comment upon in due course.

28.              In regard to the staffing shortages, the Council has confirmed that eight highly experienced executive planners were lost between 2022 and 2024 and only four graduate planners were filled by the recruitment process. In the forward planning department, which would be responsible for preparing the LAP, the number fell from 4 to 0 between February of 2021 and December 2024.

29.              In response, Mr. Dodd says Mr. Russell did not provide any evidence beyond the fact that recruitment campaigns were unsuccessful in 2022 and 2023. The Applicant goes further and strongly suggests in its submissions, that in fact there is a systemic and long running policy of not preparing LAPs and that the Council has not been honest in relation to the matter and that there has been a failure of the duty of candour to explain why LAPs were not prepared.

30.              Ms. Hughes makes two further legal, as opposed to factual, submissions. First, is that an order of mandamus would be futile or to put it in more practical terms, impossible to implement. She relies upon the case of Brady v Cavan County Council [1999] 4 IR 99 in support. The second submission is that an order of mandamus would trespass on the separation of powers, both of which I shall deal with below.

 

The Applicable Legal Principles

31.              It is common case that an order of mandamus is a discretionary remedy. In this regard, I am happy to adopt the views of Keane J. (as he then was) in Brady:

"The order of mandamus, in essence a command issuing from the High Court and directed to a person or body, requiring him or them to do a particular specified act which appertains to his or their office and is in the nature of a public duty, has always been regarded by the law as discretionary in its nature. That was clearly the case with the prerogative writ of mandamus (see Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214 at p. 246) and, in my view, remains the law, although the remedy now takes the form of an order of mandamus by way of judicial review".

32.              This is a case which is very much to the fore of the Council's submissions. The facts of which are relatively straightforward. The Applicant sought an order of mandamus to compel the Respondent local authority to repair a particular public road in County Cavan, pursuant to its duties to keep public works in good condition under Section 82 of the Local Government Ireland Act 1898.

33.              The Respondent in that case, as in this case, argued that it had limited funds and that an order of mandamus in the form sought by the Applicants would be ineffectual to secure compliance with their statutory duty. While the High Court granted the order, the Supreme Court allowed the Respondent's appeal and held that the High Court erred in the manner in which it exercised its discretion, having regard to the futility of granting the order where the Council did not have the means to carry out its statutory duty.

34.              Keane J. held that the making of an order of mandamus would lead to the discharge of the Council's responsibilities in an arbitrary manner, and that the rest of the road network in the county would remain in disrepair, meaning the Council would continue to be in breach of its statutory duty (see also Kennedy v The Court Service [2014] IEHC 259 and The West Cork Bar Association v Courts Service [2016] IEHC 388).

35.              However, the Applicant places much greater relevance upon the State (Modern Homes (Ireland) Limited) v. Dublin Corporation [1953] I.R. 202 which, it believes, is particularly instructive. The case concerned the Town and Regional Planning Act 1934, and the failure of a local authority, in this case Dublin Corporation, to bring into operation the provisions of the 1934 Act.

36.              Section 29 of the 1934 Act provided that:

"When a planning authority has decided under this Act to make a planning scheme, such authority shall with all convenient speed give effect to such decision and make a planning scheme in accordance therewith and shall submit such scheme to the Minister for his approval".

37.              The planning authority had acted under interim provisions under the Act and had not made a planning scheme and when a letter of demand was made it failed to do so, no such scheme or draft scheme was prepared. It put forward as an explanation, that it was directing its energies towards rapid development of housing and sanitary problems in the city.

38.              The Supreme Court rejected arguments that "all convenient speed" meant the Council could proceed at its own pace. The Supreme Court said as follows at p. 226;

"The Court, however, wishes to make clear its view that the appellants are not entitled to hold up the preparation of a scheme in the hope that amending legislation will be passed. In R. (1 UD. W and C.) v. Rathmines UD.C.(J) a similar contention was rejected by this Court. Kennedy C.J, at p. 297, said: - " ... the excuse that there were proposals before the Dail for an alteration in the law which might, or might not, receive legislative sanction ... is not a justification of the appellants' refusal to obey the existing law which a Court can entertain.". Murnaghan J, at p. 307, said: - "The Act which was passed contained a specific instruction to the Council to see that it was enforced. It would render a law nugatory if in such circumstances the body charged with the execution of the law suspended its operation on the view that the Act was likely to be repealed." These passages apply if anything with greater force in this case. If the appellants are playing for time in the hope that the difficulties which they have encountered in preparing a planning scheme will be removed by legislation they must understand that such conduct is unwarranted and cannot be accepted by the Court as a valid reason for failure to carry out the plain duty laid upon them by the Statute."

39.              The Applicant also relies upon O 'Donoghue v Keyes [2016] IEHC 262, McD v. Child and Family Agency [2024] IESC 6, and B (a minor) v The Child & Family Agency [2025] IESC 2. It seems to me that those cases are pertinent to their own facts. In O'Donoghue, Barrett J. granted an order of mandamus to direct the taking charge of a housing estate, a most important civic utility at a time of housing shortage. The other two cases specifically related to a failure on the part of the Respondent to carry out their duties in regard to young children, again matters of the utmost importance not only to the children involved but also to society as a whole. Those cases cannot equate with the factual circumstances of this case.

40.              I should say something about Modern Homes. In that case, there was no question of the Respondent arguing that it did not have the resources to abide by the court order, rather it contended that no order should be made in circumstances where it was the only body under the statute capable of making a scheme and the court would be powerless if it chose to disregard its order. A rather bold submission, one would have to say. In those circumstances, it is not surprising the court was robust in its judgement where it said: -

"The appellants are asked to carry out their legal obligation and they have the means to carry out the order. It is to be assumed that they will obey an order of the Court to do that which it is their statutory duty to do. The argument appeared to be that if the Council refused to obey the order of the Court there would be no means available to the Court to compel them to do so, or to see that the scheme was made. Mr. FitzGerald argued that unless the Court could put machinery in motion to prepare a planning scheme if the Council refused to obey an order to do so that it should not make the order asked. This argument is based on a misconception of the position. If those who are held to have failed in a public duty prove recalcitrant the Court has ample powers to compel compliance with its order and does not necessarily seek other means of having the duty performed".

41.              I do not take from that judgement a principle of law that if a local authority swears it is not in a position to act in a certain manner, due to either financial or staff resource issues, the court will, nevertheless, always demand that it does so act. All depends upon the context, the issues involved, the effect upon the Applicant and society as a whole, such as in the McD and B cases.

42.              As far as the separation of powers argument is concerned, I accept the views of both Hogan J. and in particular Murray J. in McD, at paras. 13 and 14, where he indicates that a more nuanced view may be appropriately taken in relation to the separation of powers and the division of institutional competences, which analysis necessarily depends on the facts of the case:

"13. ... One passage in R (Imam) v. London Borough of Croydon ([2023] UKSC 45) shows that in some cases the constitutional considerations arising when a Court is asked to grant such relief are more demanding than that yielded by the simple marrying of the fact of a statutory duty, and the proposal that the Oireachtas should either make more resources available or change the law (paras. 61 and 62):

'In planning its affairs and setting its budgets, an authority has to balance all the demands placed upon it by Parliament and match these with the sources of income available to it. A court cannot carry out that function itself, since it lacks the democratic authority, detailed knowledge of the range of demands and range of funding options available and the administrative expertise required for this ...

... The authority is the clearing house for meeting all the claims made upon it. A court should be careful not to exceed its own proper role by disrupting without good justification the authority's own attempt to reconcile those claims in a fair way through its ordinary budgeting process, once that has been finalised.'

14. The overall constitutional context in this jurisdiction is, obviously, quite different, but the importance of democratic accountability and the institutional competence of the Courts are equally valid considerations in the analysis of contemporary rule of law and separation of powers jurisprudence in this jurisdiction. How these factors should knit together will, necessarily, be case specific. ..."

 

Discussion and Decision

43.              As I observed earlier, the Applicant's case is very simple. The real issue which the court has to address are the explanations or excuses offered by the Council and the legal issues raised.

44.              Dealing with the explanations or excuses given, the first being that the failure to adopt an LAP has not prevented the implementation of planning and development policies and objectives relating to the East Meath area. While I accept that the Development Plan also includes local policy and objectives unique to the area, the purpose of LAPs is to go much further in a granular and distinct fashion from the Development Plan. The Council is not meeting its statutory obligations, as it has already accepted. This is something which the court should not condone. A statutory obligation is a statutory obligation, which should, as far as is possible, be complied with. Therefore, unless the Council can rely on other grounds, the order should be made.

45.              The next argument is the submission that the appropriate sections of the new Planning and Development Act will come into effect soon and therefore, it would be something of a waste of time and money to prepare an LAP now, given that it would only be effective for a limited period of time. This does not strike me that this is a strong ground at all. I agree with the Applicant, that the Council must find the law as it is and not as it may be. In this regard the words of Maguire C.J. set out above in Modern Homes are particularly apt.

46.              The final ground is that of exceptional circumstances it faces and resources constraints. There are a number of limbs to this argument.

47.              I do not think that the Council can rely on the fact that there have been legal challenges as an explanation or excuse. The planning list is full of applications for judicial review against local authorities, yet many are able to prepare LAP's.

48.              Therefore, that ground does not seem to me to be a legitimate reason for not abiding by its statutory obligations. Neither do I think that unforeseen legislative and policy changes such as the Residential Zoned Land Tax, the Development Plan Guidelines, the Sustainable and Compact Settlements guidelines or the new Planning and Development Act can be used as an excuse.

49.              However, the final issue relates to the loss of experienced staff and the failure of recruitment. There is no doubt that the staff losses experienced by the Council are stark. To lose so many employees in such a crucial area of planning, is concerning. It does, however, have a significant knock-on consequence. It means that the requisite skill sets are simply not present. Hopefully this is a short-term difficulty. If not then applications such as this, will become an increasing feature of the planning list, and that is something nobody wishes for.

50.              Taken together, there may be an argument for saying that these are exceptional circumstances, a term which is not defined, but which as the case law shows, is to be given a very wide interpretation (see J.McE v Residential Institutional Redress Board [2016] IECA 17).

51.              Given that an order of mandamus is discretionary, it seems to me that this court has to take into consideration the actual circumstances that appear on the ground. In an ideal world the LAP for the East Meath would have been prepared long ago. To that extent, I reject the submission that the Council has some form of unstated policy not to abide by its statutory obligations. I absolutely accept the bone fides of the Council that it understands its obligations. For that reason, it consented to the declaration sought. It is a very big step from what has happened here, to suggest, as the Applicant has done, that there is some hidden agenda as to why the Council has not prepared the LAP.

52.              It seems to me that the Court should be very slow to intervene to direct the Council as to how to allocate its scarce resources. To that extent, I adopt the views of Baker J. in Mulhaire v Cork County Council [2017] IEHC 288, where, in the context of the local authority's statutory obligations under the Housing Acts, an order of mandamus was sought to compel it to provide suitable housing at a specific location, the court referenced the dicta of Laffoy J. in Ward v Dublin South County Council [1996] 3 IR 195 where she noted:

'It is not the function of this Court to direct a local authority as to how it should deploy its resources or as to the manner in which it should prioritise the performance of its various statutory functions. These are matters of policy which are outside the ambit of judicial review.......'

53.              I also accept the views of Murray J. in McD where he said:

"It would, however, be wrong to suggest this means that in all other cases in which a statutory duty has been imposed on a public body, orders for mandamus will issue in any case in the teeth of detailed evidence that establishes that for the public body concerned, compliance with the duty would in a particular case be impossible because of restrictions on resources. The grant of an order of mandamus is discretionary and the Oireachtas must be taken to have understood when it imposed such a duty on a statutory body that circumstances might arise in which the body would not be compelled by Court order to comply with that duty, these falling to be assessed and the discretion exercised by the Court in accordance with established principle."

54.              Part of that exercise of assessing the circumstances is to consider the matters referred to in R (Imam) v. London Borough of Croydon [2023] UKSC 45. In that regard, it seems to me that the court should note the resource constraints in their totality facing the Council, that it has sought to apply its limited resources in an orderly and rational fashion and to comply with court orders arising from proceedings against it in being between 2021 and 2023.

55.              Parties to litigation of this sort must be aware that such litigation drains those very limited resources in such a way, so as to potentially defeat the very thing they are trying honestly to achieve, namely the proper management of the environment and the planning process.

56.              The Council's preparation of LAPs has been progressed in accordance with the settlement hierarchy set out in the Development Plan. To mandate that, the East Meath LAP be prepared forthwith, as the Applicant seeks, is to divert resources from other LAPs, similar to the position as found in Brady. I do not agree with the submission of Ms. Hughes that this would infringe the separation of powers. I see it more, as Baker J. noted in Mulhaire, that the court should be very slow to intervene to direct the Council as to how to allocate its scarce resources, or as Keane J. in Brady said:

" The only effect of the order of mandamus, if complied with, will be the repair of the strip of road referred to in the order. Unless the necessary funds are provided by the Government, the rest of the road network in County Cavan will remain in a state of unacceptable disrepair in the future and the order will thus fail to secure the compliance by the Council with their statutory duty."

57.              One of the matters which I have to take into consideration when exercising my discretion, is the prejudice which might arise to the Applicant. In this case, I specifically asked Mr. Dodd as to what prejudice would arise. His answer was instructive. He submitted that the consequences would have a detrimental effect on the community as a whole if the policies were absent. I think it could also be argued that the Applicant loses the right to make submissions during the preparation of the LAP. In reality such prejudice as may arise, is somewhat theoretical. No direct prejudicial matters seem to arise, certainty none were advanced.

58.              Therefore, when I balance the potential prejudice on behalf of the Applicant with the manifest and disruptive effect of the making of the order on the Council, there is only one winner. It seems to me that the issue of proper planning is covered within the Development Plan, just not to the extent and degree envisaged in the legislation. I accept the bona fides of the Council in this regard.

59.              I do not accept the submission that the problems which it faces are not financial, nor is it special pleading. If the qualified people are not available at the salary offered, then it is a question of lack of finance linked to a question of lack of expertise, making it very difficult for it to achieve what it is statutory obliged to achieve. Nor do I accept the submission that the Council has applied its resources to other non-statutory obligations at the expense of its statutory obligations. As I set out above, for the court to involve itself in such matters would be to engage in micro-managing the work of the Council, or to put it another way, as Laffoy J. said in Ward, these are matters which fall outside the parameters of of judicial review.

60.              Therefore, taking everything into consideration and acknowledging the failure on the part of the Council to abide by its statutory obligations, which it has accepted, it seems to me that in exercising my discretion, it would be unjust for the court to order by way of mandamus, the preparation of an LAP to one specific part of County Meath, to the exclusion of the rest of the county, thereby dictating its own settlement hierarchy. Further, I accept that the matter raised by the Council, when taken together, amount to exceptional circumstances.

61.              Therefore, I will refuse the application for mandamus.