High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant seeks an Order of Certiorari quashing the decision of the Respondent, Waterford Corporation, taken on 18 June, 1998 to proceed with a scheme of 70 houses at Knockhouse Road, Logloss, Gracedieu, Waterford.

The Applicant is a retired office worker who resides in a privately owned bungalow at Springmount, Logloss, Gracedieu, in the immediate vicinity of the Respondent's proposed scheme of 70 houses. The Applicant's opposition to the scheme is shared by his three immediate neighbours who also live in privately owned bungalows adjoining that of the Applicant. Objections to the scheme have also been raised by the Hillview Residents' Association. Hillview, a sizeable estate of privately owned dwellings, lies immediately to the south of the Corporation's proposed development.

Waterford Corporation's proposal is to build a scheme of local authority houses for rental, or possibly at a later stage, tenant-purchase. The scheme, being housing development by the Corporation which is also the planning authority for Waterford city, was exempt from the normal planning permission process (Section 4 of the Local Government (Planning & Development) Act, 1963). However, the Corporation was bound to follow the procedure set out in Part X of the Local Government (Planning & Development) Regulations 1994 (SI No 86 of 1994). These regulations provide for advertisement and notification of proposed developments by the local authority to the general public and make provision for the receiving of objections by members of the public and consideration of these objections.

It appears that on 16 February, 1998 at a meeting of Waterford Corporation a decision was taken to embark on the statutory process necessary to build a scheme of local authority houses at Logloss, Gracedieu. There is no doubt that there was a need for increased provision of local authority housing in Waterford; the waiting list for housing was long and few houses had been built in recent years. Funds were available to carry out the proposed development. It had become the policy of Waterford Corporation (as is indeed the general policy of local authorities at present) to provide small areas of local authority housing inter-mingled with private housing, rather than, as in the past, creating large homogeneous areas of solely local authority housing. On 3 April, 1998 the Corporation published a Notice in accordance with Part X of the 1994 Regulations in the Waterford News and Star, a local newspaper. The advertisement, which was prominently printed in bold type, was headed "Notice of Proposed Development" and stated that Waterford Corporation proposed to carry out a development consisting of the erection of 79 No houses together with associated site development works at Logloss, Gracedieu, Waterford. In addition it was set out that

"Plans and particulars of the proposed development will be made available for inspection each day, Monday to Friday, exclusive of public holidays, between the hours of 9.00 am-12.30 pm and 2.00 pm-4.00 pm at the City Engineer's Offices, the Mall, Waterford, during the period from 3 April 1998 to 4 May, 1998. Submissions or observations with respect to the proposed development, dealing with the proper planning and development of the area in which the proposed development would be situated, may be made in writing to Waterford Corporation on or before 19 May, 1998."

On 30 April, 1998 the Applicant, on behalf of himself and a number of other Gracedieu residents, wrote a lengthy and detailed letter to the City Manager, Mr Breen, raising a number of objections to the proposed scheme. Detailed objections were also lodged by the Hillview Residents' Association and by the Gracedieu Residents! Group. A total of 99 letters of objection were received from individual residents of the Gracedieu and Hillview areas.

On 15 May, 1998 a meeting of Waterford Corporation was held which was attended by Councillors and Aldermen and by the Town Clerk, the City Manager, the City Engineer, the Deputy Engineer, the City Architect, the City Planning Officer, the Housing Officer and other officials and by the Applicant and other representatives of the Gracedieu residents and Hillview residents. This meeting, according to Stephen Blair, Senior Executive Planning Officer of the Respondent, was held for the purpose of hearing the objections in detail of the various groups with a view to taking those objections into account in drawing up the finalised plan. It is pointed out by Mr Blair that under Part X of the 1994 Regulations there is no statutory requirement for the Council to meet and accept oral presentations. Nevertheless this was done.

In accordance with Regulation 134 of the 1994 Regulations the City Engineer then provided a report which recommended that the Corporation proceed with the proposed development but with certain amendments, including the reduction of the number of houses from 79 to 70. This report was dated 17 June, 1998. A number of suggested amendments were included to meet the objections of local residents, in particular the objections of Hillview Residents' Association. For example, the original proposed two storey houses along the southern boundary of the site were to be replaced by bungalows so as to reduce the degree of over-looking of the Hillview houses and the wall between the Hillview estate and the proposed development was to be increased in height. The other alterations which were made in the proposed scheme included the replacement of 8 bungalows by 8 two storey houses to the west and east of the Applicant's own bungalow. It is in issue between the parties as to whether this proposed change was made clear to the Applicant either in the Engineer's report or in any other way.

On 18 June, 1998 the Respondent Corporation decided to proceed with the scheme as presented in the City Engineer's report. A motion opposing the development was defeated by 10 votes to 5.

The Applicant sought legal advice and on 12 October, 1998 sought leave to issue his Judicial Review proceedings. Leave was granted by this Court (Geoghegan J) on that date. A Statement of Opposition was filed by the Respondent on 10 December, 1998.

The Applicant puts forward two main grounds on which he submits that the Respondent's decision of 18 June, 1998 should be quashed. Firstly, he submits that because the Respondent did not re-advertise the scheme as amended and again allow for objections from members of the public, that the Respondent did not correctly carry out the statutory procedure laid down by Part X of the Local Government (Planning & Development) Regulations 1994.

Secondly, for a number of reasons to which I shall refer in detail later, he submits that the proposed scheme is in material contravention of the Waterford City Development Plan, 1994 and as such is prohibited under Section 39(2) of the Local Government (Planning & Development) Act, 1963.

With regard to the first of these grounds Senior Counsel for the Applicant, Miss Clarke, relied chiefly on the Judgment of Butler J in Finn v Bray Urban District Council IR 169. In that case the Defendant planning authority prepared a draft of its proposed development plan and published the statutory notices in regard to it. Having considered a written objection by the Plaintiff rate-payer to the draft plan, the Defendants made amendments to the draft plan (including an amendment which affected the Plaintiff's property) and by their resolution purported to adopt the draft plan as so amended and thus make a development plan in accordance with the provisions of the Local Government (Planning & Development) Act, 1963, without having published statutory notices in relation to the draft plan as amended and without having notified the Plaintiff of the amendments affecting her property. It was held by the learned Butler J that the Defendants had acted ultra vires the Act of 1963 in purporting to adopt the draft of their proposed development plan as amended without having published any statutory notices in regard to such drafts as amended. Accordingly, the Defendant's resolution was null and void insofar as it purported to amend and adopt the draft plan and insofar as it purported to make a development plan. At page 174 of the report Butler J stated:-

"I take it as clear that one of the objects of the development plan is to control and regulate the user and development of property by indicating inter alia the lines on which development permissions will be granted, and on which prohibitions on development and user will be imposed under other parts of the Act. As such, it affects property and may adversely effect the value of a citizen's estate in, and enjoyment of property. Section 21 of the Act of 1963 provides a procedure and machinery whereby the owner of property within the area of operation of a proposed plan (among other interested persons and bodies) may be informed, or given the opportunity of informing himself of any proposal which may affect him; he may be given the opportunity of objecting to the proposal and of having his objections considered by the planning authority, and he may be given the opportunity of stating his case in relation to the proposal -- all this before the plan was made."

In regard to the failure of the Urban District Council to notify the public of the amended plan, the learned judge said (at page 179):-

"In view of all these considerations, I am of the view that the correct interpretation of Part III of the Act of 1963 is that, before making a plan, the planning authority must first prepare a draft of their proposals and must give notice of having done so and must make it available for inspection, in addition they must receive and consider objections and representations, and they must afford an objecting rate-payer the opportunity of stating his case. If any amendment is made in the draft which amendment is a material alteration of the draft proposals, then notice of such amendment must similarly given and like opportunities afforded."

Miss Clarke argues that in the instant case material alterations were made in the draft plan of the proposed development at the time of the City Engineer's report and that, as in the Finn case the Respondent should have again gone through the procedure of notification of the public and receiving and considering objections. Miss Clarke also referred to the judgment of Carney J in Keogh v Galway Corporation 3 IR 457 (the "Bishop's Field" case) in that case Galway Corporation in their development plan made special provision for the creation of traveller halting sites at four named locations. The Corporation decided to develop a halting site at a location which was not one of the four specified sites. The Applicants, who were local residents, sought Judicial Review on the grounds that the decision of the Corporation materially contravened the development plan in that it purported to sanction a development by reference to the general and implied terms of the plan. The complaint was that the Applicants had not been accorded rights of notification and hearing in respect of this proposal prior to the adoption of the plan. The denial of these rights arose because the Applicants had been led to believe that the express terms of the plans were exhaustive on the issue of halting sites for travellers. The learned Carney J, referring to the submissions of the Applicants, stated (at page 463):

"They are saying that the particular development is ultra vires the Respondents by reason of not having been notified in the development plan. They say that any other construction would set at naught their statutory right to make representations at the draft stage in relation to a development which affects them in a material and substantial way. This right is to make representations at a stage when there is a real prospect of the plan being altered as a result of those representations. They cannot make representations in relation to matters which they are not on notice and could not anticipate."

The learned judge went on to say:

"It is central to the scheme of the Act that a citizen is to be given notice of a development which might affect him in a substantial way has the opportunity of stating his case in relation to what is projected The provision of halting sites is a matter of clear interest to adjoining householders and is also frequently a matter of great concern and controversy."

Miss Clarke submitted that, as in the Finn case, the Court in the Keogh case had stressed the central importance of notification of the public. The Applicant in the instant case had not been notified of the amended scheme, nor had he an opportunity to object to the amendments.

Senior Counsel for the Respondent, Mr Gordon, submitted that the Respondent Corporation had exactly carried out the terms of Part X of the 1994 Regulations. The Respondent had properly notified the public of the proposed scheme; it had made it available for inspection; it had received and considered the objections of the Applicant and the other objectors. The City Engineer had made his report which dealt with all of the matters set out in Rule 134(2) of the Statutory Regulations. The Respondent had gone further than required in holding a meeting to allow local residents to put forward their objections in person. The Respondent had clearly taken the objections of the residents into account when making alterations to the scheme. There was no statutory obligation under Part X of the 1994 Regulations or otherwise on the Respondent to re-advertise the amended scheme and again go through the objections procedure. On a common sense level, Mr Gordon argued that, if the Respondent had to follow the course advocated by the Applicant, there would in theory (and indeed in practice) be no end to the circular process of amendment and subsequent objections.

As far as this ground is concerned, I would accept the submissions of the Respondent. The whole structure of Local Government Planning and Development is a creature of statute and the duties of a planning authority vis-a-vis the general public are laid down by statute and by statutory regulations, which should be interpreted strictly. The scheme of houses proposed by the Corporation in the instant case, being a housing development to be carried out by the planning authority itself did not require planning permission (Section 4 of the 1963 Act). The procedure to be followed by the Respondent is set out in detail in Part X (Regulations 130-136) of the 1994 Regulations. This procedure is not analogous to the situation which was dealt with by the learned Butler J in Finn v Bray Urban District Council. In that case the Court was considering the production of an actual development plan by the urban district council, a procedure governed by Sections 19-22 of the Local Government (Planning & Development) Act, 1963. His interpretation of these sections cannot, in my view, be carried over to the interpretation of a quite different set of statutory regulations in Part X. The Keogh case, also, was dealing with a different situation and is in fact a "material contravention" case. In that case the planning authority had very specifically notified the public in the development plan that halting sites would be provided at four particular locations. The "Bishop's Field" was not one of those four sites and was thus, the Court held, was a material contravention of the development plan which was prohibited under Section 39(2) of the 1963 Act. The lack of notice to the public was, of course, a feature of the particular material contravention, but the situation is not on all fours with the duties of a planning authority under Part X of the 1994 Regulations.

On the affidavit and documentary evidence before this Court, it seems to me that the Respondent was exact in its adherence to the statutory system set out in Part X of the 1994 Regulations. In particular the report of 17 June, 1998 presented by the City Engineer dealt in the fullest detail with all the matters set out in Regulation 134(2), and a real effort was made to meet the objections of the local residents. It is of course true that the Applicant himself has a number of objections to the amended scheme. Some of these objections may be well-founded on planning grounds, but that is not a matter which can be dealt with by this Court by way of Judicial Review. In my view the Respondent followed the proper statutory procedures in reaching its decision of 18 June, 1998 and this first ground therefore, fails.

I turn now to the second ground put forward by the Applicant -- that the proposed development is in material contravention of the Respondent's own development plan, the Waterford City Development Plan, 1994.

Section 39 subsection 2 of the Local Government (Planning & Development) Act, 1963 provides:

"The Corporation of a County or other borough shall not effect any development in such borough which contravenes materially the development plan."

The Applicant argues that for a number of reasons, taken singly or in combination, the housing development proposed by Waterford Corporation materially contravenes the development plan.

Firstly, while the greater part of the proposed site is situated in an area zoned "Residential" in the Development Plan, a substantial portion of the lands is zoned "Residential -- Premature to Develop During Period of Plan". The significance of this designation is explained at paragraphs 11.2.3 and 11.2.4 of the Plan as follows:

"11.2.3 Accordingly, those areas of land which were previously zoned for residential use, but are deficient in public water supplies, or sewerage facilities, and where there is no immediate prospect of making good this deficiency, have been designated as being premature to develop for housing during the period of this Plan. Such areas are shown on the attached zoning map. In totals, 302.7 hectares (748 acres) of land have been so designated.

11.2.4. There is however, a total of 242 hectares (598 acres) zoned for residential development during the period of the plan, which is presently undeveloped. On the basis of the housing needs projections outlined in chapter 3, and on existing average densities, this represents approximately 4 times the amount of land that would be required for housing development up to 1999. Indeed, in outstanding planning permissions alone, there is sufficient housing land to accommodate the projected needs of the city for well beyond the Plan period."

The Applicant submits that the deficiencies in local infrastructure at Logloss, Gracedieu, as regards water supplies and sewerage have not been made good and in addition that the Knockhouse Road is narrow and dangerous and is not suitable for the additional traffic which will be generated by the building of 70 new houses. Such remedial roadworks as are proposed in this scheme are minimal and inadequate.

In addition the Applicant points out that on 16 January, 1998 the planning committee of the Respondent considered a planning application from Messrs McInerney Construction Limited for the erection of houses and apartments on lands at Gracedieu, near the present site at Logloss. The application was considered under the heading "Possible Material Contraventions". The minutes of the planning committee for that date state:

"The Senior Executive Planning Officer presented details of this application stating that it was for a major residential and commercial development in an area that was partly zoned for agricultural use and partly as premature for development. He further stated that the services and infrastructure in the area would be insufficient to cater for the proposed development. A material contravention would be required to grant planning permission for the proposed development. Dealing with questions, the City Manager stated that the Consultants'report on the north west suburbs should be available by July, 1998 and this would revert to Council for consideration."

Miss Clarke on behalf of the Applicant submits that it is settled law that the requirements of the planning law must be applied with as much stringency against the local authority as they would against a private developer -- see, for example, O'Leary v Dublin County Council [1988] IR 150. If it was a material contravention for Messrs McInerney to build houses on land zoned premature for development the same must apply to the Respondent itself.

Next the Applicant draws attention to the proposals for social, or local authority, housing contained in chapter 3 of the Respondent's 1994 Development Plan which deals specifically with housing. The Plan sets out a considerable amount of statistical information concerning the various types of housing currently available and the housing needs of the area during the currency of the Plan. In regard to public housing the Plan analyses the accumulated demand for such housing -- 683 persons and families being on the waiting list as at 31 March, 1993 -- and goes on to say at paragraph 3.15:

"It is recognised that the most suitable location for mixed housing developments is in small in-fill schemes in the inner city, with relatively high densities and utilising existing physical and social infrastructures. It is acknowledged, however, that not all of the housing needs in the period 1994 to 1998 can be satisfied in Urban Renewal Schemes, and new housing will have to be provided in the suburbs. The Housing Authority has a number of choices with regard to the location of the new housing schemes. Serviced land is available within the County Borough at Ballybeg, Kilcohan/Ballytruckle and Upper and Lower Grange, and outside of the County Borough in Ferrybank.

In line with the policy of counteracting social segregation in housing, the choice of location and size for future suburban housing schemes will be influenced by the scale of existing housing schemes, the maturity of those schemes and the capacity of the existing social facilities in the area. In future, new housing schemes in suburban locations will be smaller in scale than heretofore with a proposed norm of approximately 75 houses per scheme."

The Applicant submits in this regard that the Plan clearly indicates to the general public that, in addition to in-fill schemes in the inner city, the Respondent intends to provide local authority housing in the areas specifically named in paragraph 3.15. It would therefore be a material contravention to build such houses in a completely different area at Gracedieu. In this context Miss Clarke again draws attention to Keogh v Galway corporation 3 IR 457 where the learned Carney J held that it was a material contravention for the Corporation to develop a halting site at a location different from the four locations specified in the Development Plan for such sites.

The Applicant also relies on the fact that the Respondent is in course of preparing an Action Area Plan for the north western suburbs of Waterford. This is provided for in paragraph 10.3.3 of the 1994 Development Plan, which states

"This Action Plan will entail an investigation of the feasibility of providing further serviced residential land in the area through the upgrading of the public infrastructure, clearly setting out what improvement works are required, the costs involved and how the necessary works might be funded, and the likely timetable for implementation. This Plan would also include an examination of the road network in the area, including a reappraisal of the connections between the proposed inner and outer ring roads, and how existing proposals might be improved, and an examination of the effects which these road reservations are having on the future development of the area. On completion of this Action Area Plan, should amendments be deemed necessary to the Development Plan, these will be made by way of a variation to the Plan."

At its meeting on 16 January, 1998 the planning committee of the Respondent, when considering Messrs McInerney's planning application, agreed that consideration would not be given to any possible material contraventions in the north west area pending the consultants' report on the north west suburbs (which I take to be the same thing as the Area Action Plan). The Applicant submits that the clear policy of the Respondent under the 1994 Plan was to make an Action Area Plan for the north west suburbs and, pending that Plan, not to carry out developments in the area. The present proposal at Logloss was totally contrary to this policy.

Finally, the Applicant draws attention to the fact that on the map which forms part of the Waterford City Development Plan 1994 a road reservation for the planned Outer Ring Road leading to a second river crossing is shown on the site of the proposed scheme. In addition a road reservation for the junction of the proposed Inner Ring Road with the Outer Ring Road forms part of the site. In the letter of objection written by the Applicant to the City Manager on 30 April, 1998 the Applicant stated:

"The land the proposed development is to be built on was acquired in February, 1978 from the then private developer of the area for the express purpose of providing access to the second river crossing. On all development plans since that date this has always been the prime objective for the land, and has been clearly displayed by dotted lines on all maps originating from the Corporation offices. People have bought, extended or improved properties after checking with Corporation officials as to the intended land use, and been told that the site would be either a road or a green space. This is a major change in the primary objective for the land, it is closer to a material contravention of the City Development Plan than simply a proposal to erect 79 houses and should be treated as such."

In chapter 4 of the Development Plan reference is made to the transportation difficulties caused by the fact that Rice Bridge is the only road crossing the River Suir at Waterford and to the need for a second river crossing and outer by-pass route, and acknowledges that the proposed by-pass route is shown on the Respondent's objectives maps. While the Applicant acknowledges that the proposed route for the Outer Ring Road may be in course of re-appraisal, he maintains that the present road reservation as shown on the Development Plan map remains an integral part of the plan and that to build a scheme of houses on the proposed site is a material contravention of the Plan.

In his Affidavit grounding the Respondent's Statement of Opposition, Stephen Blair, Senior Executive Planning Officer, refers to the various arguments made by the Applicant.

As far as the zoning of the area is concerned, he points out that two thirds of the proposed site is in fact zoned Residential. While the smaller part of the site is zoned Residential, Premature to Develop During the Period of the Plan, Mr Blair submits that this is still a residential zoning. The reason development was said to be premature, as stated in the Plan, was that there were deficiencies in the infrastructure. These deficiencies are now to be remedied under the new Serviced Land Initiative introduced by the Government since 1994, so that residential development will no longer be premature.

In regard to the planning application by Messrs McInerney, Mr Blair points out that the crucial difference between that application and the proposal of the Respondent is that the site of McInerney's proposed development was in the main on land zoned as agricultural and in addition was beyond the present development boundary as set out in the Plan. It therefore was a material contravention. It should also be noted that no formal decision had been made in respect of the McInerney planning application; consideration of it had merely been postponed.

With regard to the Applicant's reference to paragraph 3.15 of the Plan in regard to local authority housing, Mr Blair submits that the plan clearly indicates that new local authority housing will have to be provided in the suburbs. Paragraph 3.15, he argues, merely states that the local authority has a number of choices with regard to the location of new housing schemes. It does not confine the housing authority to developments only in particular areas. He refers to paragraph 3.18 of the plan which states as follows:-

"While emphasis will be placed on inner city locations, as stated above, Greenfield Developments and the purchase of existing houses will be considered where appropriate".

As far as the Action Area Plan is concerned, the Respondent submits that no where in chapter 10 of the development plan is stated that development of the North Western suburbs of the city should be delayed or refused pending the adoption or implementation of the action area plan. The objective of any such action area plan would not to be to examine lands already zoned as residential but to look at the feasibility of providing further serviced residential land in the area. The Respondent also points out that in itself an action plan has no statutory basis.

Dealing with the reservation for the Outer Ring Road the Respondent states that the present position is that the Outer Ring Road will not traverse the lands on which the Respondent proposes to build the scheme of houses. The Respondent points out that at paragraph 4.2 8 of the plan it is stated:

"However, it is recognised that, as a period in excess of 20 years has elapsed since the research was undertaken to select the route of the outer by-pass and the option of a high level bridge, there may be a need for further evaluation and to up-date the work in the light of present circumstances and subsequent new legislation enacted"

In his affidavit Mr Blair states that this evaluation and updating of the work has in fact been undertaken since the adoption of the city development plan in 1994. This resulted in a stage one report being adopted and published in April 1997 when a new location for the second river crossing further to the West and the route for the outer by-pass road were identified. Accordingly, he states, prior to the formulation of the current housing proposals, it was public knowledge that the road reservation traversing the lands the subject of these proceedings was obsolete and no longer required. In his submissions to this Court Mr Gordon, Senior Counsel for the Respondents, emphasised the fact that the change in the route of the Outer Ring Road was well known both to the Applicant and to the other objectors to the corporation scheme. Among the documents exhibited in the pleadings is a submission by Hillview Residents' Association to the planning committee of the Respondent on 15 May 1998 in which it is stated:-

"Now that the route of the access road for the high level bridge has been changed and this has freed up a long section of land owned by Waterford Corporation we realise that this land is earmarked for development."

Mr Gordon submitted that it would be inequitable to permit the Applicant to rely on the road reservation as shown on the 1994 map when it was clear that both he and the other objectors knew well that this land was no longer needed for the Outer Ring Road.

In summary the Respondent submitted that the proposed scheme was in no sense a material contravention of the 1994 plan.

Questions relating to the material contravention of a development plan have been considered by this Court and by the Supreme Court on a number of occasions, often in connection with the provision by local authorities of halting sites for travellers but also in other contexts. As already noted, under Section 3 9(2) of the Act of 1963 a Corporation may not effect any development in its area which contravenes materially the development plan.

Cases dealing with the question of a material contravention of a development plan include O'Leary v Dublin County council IR 150, Attorney General (McGarry) v Sligo County Council [1991] 1 IR 99, Tennyson v Dun Laoghaire Corporation 2 IR 527, Wilkinson v Dublin County Council [1991] ILRM 605, Ferris v Dublin County Dublin (Supreme Court unreported 7 November 1990), Roughan and Others v Clare County Council (High Court unreported 18 December 1996), Keogh v Galway Corporation [1995] 3 IR 457 and Wicklow Heritage Trust Limited v Wicklow County Council (unreported High Court 5 February 1998). I previously considered the case law on material contraventions in my judgment in Wicklow Heritage Trust v Wicklow County Council at pages 23 to 34. I surveyed the decisions reached in these cases and their factual context. I do not think that it is necessary to repeat that survey of the relevant case law here. At pages 34 to 35 of the judgment I concluded:-

"From this brief survey of the decided cases a number of relevant principles emerge:-

(1) It is for the Court and not for the Planning Authority to decide as a matter of law whether a particular development is a material contravention of the local development plan.

(2) A development plan forms an environmental contract between the planning authority and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and further that the Council itself will not effect any development which contravenes the plan materially. In seeking to interpret the objectives set out in a development plan the Court should ask what a reasonably intelligent person with no relevant expertise would understand by the provisions in question.

(3) The requirements of the planning law must be applied with as much stringency against the Local Authority as they would against a private developer.

(4) It is necessary for a local authority to include all its objectives in its plan. If it were otherwise, it would mean that the local authority could totally override its own plan."

The facts in the instant case and the submissions of the Applicant and the Respondent fall to be considered in the light of these principles. The first contention of the Applicant is in regard to the zoning of the lands in question. The greater part of the site is already zoned as residential and so no question of contravening the zoning provisions of the plan can arise in regard to it. As regards the remaining one third of the site, the meaning of the "residential -- premature to develop" zoning is clearly explained at paragraph 11.2.3 of the 1994 Development Plan. While paragraph 11.2.4 does acknowledge that there is ample land zoned for residential development, it seems to me that a reasonably intelligent member of the public would understand from paragraph 11.2.3 that if the deficiencies in water supplies or sewerage facilities were to be remedied in the immediate future residential development would be permitted in such an area. Given that the basic zoning of the area is residential, and given that only a minor part of the site is in question, it would in my view be disproportionate to hold that on the zoning basis the Respondent's scheme is a material contravention of the development plan.

As far as Messrs McInerney's planning application is concerned, I accept that it can be distinguished from the Corporation's development both on the ground that much of the land was zoned as agricultural and also on the ground that it lay outside the development area. Had the Corporation proposed a local authority housing scheme situated on lands zoned agricultural it would undoubtedly have been a material contravention. On the other hand, if a private developer such as McInerney's sought permission for a housing development on the site in question at Logloss and undertook to make good the infrastructural deficiencies, it cannot be said with certainty that planning permission would not be granted. In this way the situation seems to me to be quite different from that of the halting site in the O'Leary case or of the large waste disposal site at Ballynagran in the Wicklow Heritage Trust Case.

I now turn to the issue of the road reservation. I am, of course, bound by the much quoted dictum of the learned McCarthy J in McGarry v Sligo County Council describing the development plan as an environmental contract between the planning authority and the community which embodies a promise that the Council itself will not effect any development which contravenes the plan materially. The 1994 Development Plan map -- and other maps which preceded it -- quite clearly mark the road reserved for the outer ring road traversing the site of the proposed development. A member of the public consulting the map as such would be entitled to assume that the outer ring road would be constructed as marked on the map. However, the text of the plan itself at paragraphs 4.2.7 and 4.2.8 gives a very different picture. Paragraph 4.2.8 refers to the need for further evaluation and updating of the outer ring road project and clearly states that this reappraisal was already under way as and from July 1994 under the aegis of the National Roads Authority. In April 1997 a Waterford Second River Crossing Study Stage 1 Report was published by the relevant local authorities. This report is exhibited in the affidavit of Stephen Blair. It clearly recommends a very different outer ring road route and Second River Crossing location from that set out in the 1994 map. It is clear that this change in the road route was not only known in theory to the public through the publication of the report but was known in practice to the residents of the area since, as pointed out above, it was acknowledged in the submission of the Hillview Residents' Association to the Corporation. The 1994 map cannot be read in isolation. It must be read together with chapter 4 of the 1994 plan and one must also take into account clearly established public knowledge. In this context I would accept Mr Gordon's submission that it would be inequitable to permit the Applicant to rely on the 1994 map to establish a material contravention of the 1994 development plan as a whole.

As far as the action area plan for the North Western suburbs of the City is concerned this is fully described in paragraph 10.3.3 of the development plan. There it is stated:-

"This action plan will entail an investigation of the feasibility of providing further service to residential lands in the area through the upgrading of the public infrastructure, clearly setting out what improvement works are required, the cost involved and how the necessary works might be funded and the likely timetable for implementation."

While it might well be considered desirable not to encourage further residential development until the action area plan is put into effect, there is no statement in the plan that it is an objective of the planning authority to prevent further housing development in the North Western area until the action area plan is completed. It is neither stated nor, I think, envisaged that the action area plan should operate to prevent development; rather it should promote the orderly provision of serviced land for development. In the terms of paragraph 10.3.3 it does not seem to me that the creation of the action area plan can render the Corporation's proposed scheme a material contravention of the development plan.

There remains the issue of the Corporation's stated plan for social housing as set out in chapter 3 of the 1994 plan. Ms Clarke compares this to the situation in Keogh v Galway Corporation, where the planning authority specifically designated four locations for halting sites and subsequently materially contravened the plan by embarking on providing a halting site at a fifth location -- the Bishop's field. She points out that in paragraph 3.15 of the plan specific possible sites for social housing are identified at Ballybeg, Kolcohanl Ballytruclde and Upper and Lower Grange, and outside the county borough in Ferrybank. Yet the Corporation is now proposing local authority housing at a completely different site which had never been specified in the plan.

In my view, the statement contained in paragraph 3.1.5 is not really comparable with what was set out in the relevant plan in the Keogh case. In that case the Galway County Borough Development Plan, 1991, provided at paragraph 3.9 as follows:-

"It is a specific objective of the Corporation to provide halting sites for travellers at Tuam Road, Headford Road, Doughiska, and along the access road to silver Strand"

Chapter 3 of the Waterford Development Plan makes no such specific statement of an objective and its location. In a lengthy analysis of the need for social housing it sets out a general policy of countering social segregation by mixing private and public housing and by providing smaller schemes of houses. It states the preference for mixed housing developments in small in-fill schemes in the inner city but acknowledges that new houses will also have to be provided in the suburbs. It states that serviced land is available at the locations mentioned, but significantly does not state that it is an objective of the planning authority to build houses in those specific areas. This is in contrast with paragraph 3.16 which deals with halting sites and which states clearly:-

"It is an objective of the planning authority to provide a residential caravan park for travellers in electoral area no 2."

Far from being a material contravention of chapter 3 of the plan read as a whole, it seems to me that the proposed scheme is in accordance with a number of the plan's objectives. It aims at avoiding social segregation by creating a mixed residential area and it is also a smaller scale scheme with less than 75 houses. I have, of course, no difficulty in understanding that both the Applicant and the other local residents have deeply felt reservations about the scheme, as is clear from the tenor of their written and oral objections to it; I am not without sympathy for their difficulties. However, it is not for this Court in a judicial review application to adjudicate on the merits or otherwise from a planning point of view of the proposed development. As a matter of law I am unable to hold that the proposed scheme is a material contravention of the Waterford City Development Plan 1994. This ground therefore also fails and I will accordingly refuse the relief sought by the Applicant.