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Cite as: [2003] IEHC 114
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[2000 No. 14974P]
PLAINTIFF
DEFENDANT
)
Judgment of Mr. Justice Gilligan delivered the 19th day of December, 2003.
In these proceedings the plaintiff originally sought to challenge the validity of a decision taken by the defendants on a date unknown in the year 2000 to develop certain lands at Drumleck, Castlebellingham, Co. Louth as a temporary halting site against a background where the defendants had adopted a development plan on the 31st December, 1997 which included at paragraph HO7 the requirement to "investigate the necessity or otherwise for one or more additional travellers halting site and, if considered necessary, provide such a site(s) within the County Council administrative area".
On the 24th January, 2000, the defendants adopted the Traveller Accommodation Programme 2000-2004.
The plaintiff alleges that the decision as taken by the defendant to develop the site at Drumleck was made without complying with consultation requirements imposed upon it under the Housing (Traveller Accommodation) Act, 1998, (hereinafter referred to as the Act of 1998) and/or the Traveller Accommodation Programme 2000-2004 as adopted by the defendant pursuant to the Act of 1998 on the 24th January, 2000. In the circumstances, the plaintiff instituted proceedings by way of a plenary summons on the 20th September, 2000, and having made an application to O'Neill J. it was ordered that the defendant be restrained on an interim basis from carrying out the proposed development at Drumleck and subsequently an application was made to Murphy J. for an interlocutory order. This application was granted on the 5th April, 2001, in terms that the defendant was to be restrained until further notice from carrying out any further development on the lands at Drumleck unless and until the procedures prescribed under the Housing (Traveller Accommodation) Act, 1998, have been complied with.
Subsequently on the 11th January, 2002, this order was varied to enable the defendants to dig trial holes for percolation tests for drainage purposes.
In effect what occurred was that pursuant to the original decision as taken by the defendants it became apparent, and Mr. Keane S.C. on behalf of the respondents accepts this to be the position, that the defendants would have had significant difficulties with compliance with the relevant statutory authorities if it had continued with its original proposal.
The defendants however took a decision in May, 2001, to upgrade its proposal whereby it was going to cost in excess of £50,000 and decided to commence a fresh procedure pursuant to Part X of the Local Government (Planning and Development) Regulations, 1994. Furthermore, the site at Drumleck was to become a permanent transient halting site. This procedure has now been completed and on the 29th January, 2002, pursuant to Article 135 (2) of the Regulations of 1994, interested parties were notified of the ratification of the Part X proposal.
The plaintiff in an amended statement of claim as delivered on the 21st December, 2001, seeks various declaratory relief in the following terms:
1. A declaration that the decision made by the defendant on a date unknown but subsequent to the adoption of the defendant on the 24th of January, 2000, of a traveller accommodation programme to carry out the development of a halting site on lands owned by the defendant at Drumleck, Castlebellingham, County Louth, was unlawful by reason of the fact that it was made in breach of the provision of the Traveller Accommodation Programme 2000-2004 and in particular in breach of the provisions relating to public consultation;
2. A declaration that the plaintiff herein had a legitimate expectation that the provisions of the Traveller Accommodation Programme 2000-2004 relating to public consultation would be followed in a proper manner and in accordance with the provisions of natural and constitutional justice in particular in relation to the selection of the lands at Drumleck as a halting site;
3. A declaration that the said development is unlawful by reason of the failure of the defendant to implement the said development in accordance with the provisions of the Housing Acts, 1996 to 1998, and in particular having regard to the provisions of the Housing (Traveller Accommodation) Act, 1998;
4. A declaration that the defendant is not entitled to initiate the procedure prescribed under Part X of the Local Government (Planning and Development) Regulations, 1994, in respect of the provisions of a halting site on the said lands at Drumleck, Castlebellingham, County Louth:(a) unless and until the procedures prescribed under the Housing
(Traveller Accommodation) Act, 1998, have been complied with,
(b) unless and until the defendant considers all available options in relation to the type, standard and location of accommodation to be provided for traveller families,
(c) unless and until full and meaningful consultation has taken place with the travellers themselves, traveller representative groups, statutory and voluntary agencies, the appropriate local traveller accommodation consultative committee, elected members, the public generally and any other interested persons or bodies in relation to all available options for the accommodation of traveller families, in terms of the type, standard and location of accommodation to be provided;
5. A declaration that the said decision by the defendant made on a date unknown but subsequent to the adoption by the defendant on the 24th January, 2000, of a traveller accommodation programme for the period 2000 to 2004 to carry out the development of a halting site at the said lands is invalid, void and of no legal effect;
6. A declaration that the development by the defendant of the said lands at Drumleck, Castlebellingham, County Louth, as a halting site would amount to a material contravention of the provisions of the Louth County Development Plan, 1997, and would thereby constitute a contravention of s. 39(1) of the Local Government (Planning and Development) Act, 1963, as amended;
7. An injunction restraining the defendant, its servants or agents from carrying out any further works to the said lands at Drumleck, Castlebellingham, County Louth unless and until the plaintiff has been consulted in a proper manner in relation to site selection and other steps to be taken relating to the proposed development of the said lands at Drumleck for the purposes of a halting site and/or until the provisions of the said traveller accommodation programme relating to consultation have been implemented by the defendant;
8. An injunction restraining the defendant from carrying out any further works at the said lands at Drumleck relating to the proposed development of a halting site unless and until the relevant local traveller accommodation consultative committee has been properly consulted and afforded an opportunity to make submissions in relation thereto;
9. An injunction restraining the defendant, its servants or agents, licensees or anyone having the knowledge of the making of the said Order from taking any further steps in relation to the procedure under Part X of the Local Government (Planning and Development) Regulations, 1994, which has been initiated by the defendant in respect of the provisions of a halting site on the lands the subject matter of these proceedings at Drumleck, Castlebellingham, County Louth:(a) unless and until the procedures prescribed under the Housing
(Traveller Accommodation) Act, 1998, have been complied with,
(b) unless and until the defendant considers all available options in relation to the type, standard and location of accommodation to be provided for traveller families,(c) unless and until full and meaningful consultation has taken place with the travellers themselves, traveller representative groups, statutory and voluntary agencies, the appropriate local traveller accommodation consultative committee, elected members, the public generally and any other interested persons or bodies in relation to all available option for the accommodation of traveller families, in terms of the type, standard and location of accommodation to be provided;
10. An injunction restraining the defendant, its servants or agents, from carrying out any development of the said lands at Drumleck, Castlebellingham, County Louth, in material contravention of the Louth County Development Plan, 1997, or any new statutory development plan for the County of Louth.
The plaintiff submits, following the decision taken in 2001 to go through the Part X public consultation procedure, that the defendants were in breach of the consultation requirement under the Act of 1998 and the Traveller Accommodation Programme 2000-2004 and further that there was a breach of s. 21 of the Act of 1998, that there was a material contravention of the development plan and in particular a failure to specify the development, that there was a material contravention of the development plan from the point of view of traffic and general safety particularly as regards the sight line distances at the entry/exit to the proposed site and that there was a variation of the development as approved pursuant to Part X of the Regulations of 1994.
The defendant submits that there was a duty imposed upon them to create at least one transient halting site in the county area to cater for the needs of those travelling families who visit the county from time to time on a casual basis and who have no desire for permanent accommodation and who might otherwise be parked on the roadside or in other locations causing a nuisance to local residents or obstruction to road users.
Section 26 of the Housing (Traveller Accommodation) Act, 1998, amends s. 19 of the Local Government (Planning and Development) Act, 1963. Section 19 of the Act of 1963 requires every planning authority to make a development plan. A development plan is required to consist of a written statement and a plan indicating certain objectives for the area in question. Section 26 of the Act of 1998 provides that s. 19 be amended to include that the development plan provide for the "provision of accommodation for travellers and the use of particular areas for that purpose".
Section 7 of the Housing (Traveller Accommodation) Act, 1998, provides that "[a] relevant housing authority shall adopt as respects their functional area an accommodation programme… and shall specify in that accommodation programme the accommodation needs of travellers and the provision of accommodation required to address those needs…"
Section 16(1) of the Act of 1998 provides that "[a] relevant housing authority shall, in securing the implementation of an accommodation programme, or an amendment to or replacement of an accommodation programme, take any reasonable steps as are necessary for the purpose of such implementation".
On the 24th January, 2000, the Council adopted the Traveller Accommodation Programme 2000-2004. This accommodation programme was prepared under the provisions of the Housing (Traveller Accommodation) Act, 1998.
McCarthy J. in Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 said at p. 113:
"The [development] plan is a statement of objectives; it informs the community, in its draft form, of the intended objectives and affords the community the opportunity of inspection, criticism, and, if thought proper, objection. When adopted it forms an environmental contract between the planning authority, the Council, 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 shall not affect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing those objectives on itself. He would be further assured by the requirement of consultation with important and highly qualified independent bodies such as the National Monuments Advisory Council, An Taisce etc.: the motto of the City of Dublin (Obedientia civium urbis felicitas) joined with the statutory duty of the council under the Act would have led to the even handed administration of the planning code."
In Byrne v. Fingal Co. Co. [2001] 4 IR 565 the development plan stated at para. 6.2.1. that "[t]he council is committed to follow a consultation procedure with the travelling community and with the local community in the neighbourhood of any such proposed site."
In considering this commitment McKechnie J. stated:
"… I have no doubt but that when construing the relevant part of the plan, as per the judgment in Re X.J.S. Investments Limited [1986] I.R. 750, and following Finn v. Bray Urban District Council [1969] I.R. 169, Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99, Tennyson v. Corporation of Dun Laoghaire [1991] 2 I.R. 527 and Keogh v. Galway County Council (No. 1) [1995] 3 I.R. 457, the owners and occupiers of land and the residents within this district were entitled to assume (and demand, if need be even enforce), that the respondent would honour the unconditional and unambiguous undertaking and commitment given by it in the said plan. They were entitled to believe that if a site in their neighbourhood, otherwise legally available, became a proposed site for the purposes of the respondent's programme they would be involved in a process of consultation with the relevant members of its executive branch. This process as envisaged must in my view be real and meaningful and must involve an opportunity of making representations. If availed of, such representations must be taken into account, this in a bona fide way and prior to any final or concluded decision being arrived at. If it were otherwise such a process would be empty of value, hollow in substance and devoid of credibility….
I am therefore of the view that the respondent did not comply with its own development plan in that it failed to undertake the commitment of engaging in the consultative process as set forth at para. 6.2.1 thereof. This commitment, on any reading of the relevant passage, and in order to have any value must be performed prior to proposals being finalised with regard to any given site. In this way it could be said to be a condition precedent to the finality of such proposals. As the interchange between the residents and the respondent in this case did not comply with the aforesaid requirement, it must follow that these intended works cannot proceed in the absence of this commitment being satisfied."
It is clear that a failure to fulfil public consultation requirements can constitute a material contravention.
The plaintiff's submit that these principles apply with equal force to the commitment to consultation given by the defendant in the Traveller Accommodation Programme 2000-2004 in the present case.
Provision is made, in the Housing (Traveller Accommodation) Act, 1998, in a number of ways for public participation prior to the adoption of a Traveller Accommodation Programme. Section 9 (1) of the Act of 1998 provides:
"A relevant housing authority shall, in such form as the Minister may direct, publish a notice in not less than one newspaper circulating within the functional area of that relevant housing authority stating that –(a) they propose to adopt, amend or replace an accommodation programme,(b) a draft of the accommodation programme, or a draft of the amendment to or replacement of it, is available for inspection at the offices of the relevant housing authority or such other office as may be specified, at specified times during a specified period, and(c) regard will be had to any submissions in writing received by the relevant housing authority in relation to the draft accommodation programme, or the draft of the amendment to or replacement of it, within 2 months of the publication of the notice."
Section 21 (3) of the Act of 1998 provides:
"Without prejudice to the generality of subsection (1) or any other provision of this Act, a local consultative committee may –
(a) advise in relation to preparation and implementation of any accommodation programme for the functional area of the appointing authority concerned,
(b) advise on the management of accommodation for travellers, and
(c) provide a liaison between travellers and members and officials of the appointing authority concerned."
The basis of the interlocutory order granted by Murphy J. was, inter alia, that consultation with the local consultative committee was required. It is submitted by the plaintiff that any such consultation, to be in any way meaningful, must include consultation in relation to the proposed type, standard and location of a permanent halting facility and in relation to all options available to the defendant in that regard.
The Traveller Accommodation Programme 2000-2004 provides that the Council, in implementing the programme, will endeavour to ensure that "…all Traveller families secure accommodation of a type, standard and location acceptable to them…" and furthermore, that "there is full and meaningful consultation with Travellers themselves, Traveller representative groups, statutory and voluntary agencies, the appropriate local Traveller Accommodation Consultative Committee, elected members, the public generally and any other interested persons or bodies".
The plaintiff submits that the defendant simply went through the motions of informing the local consultative committee on the 2nd May, 2001, of its proposal and it appears to have furnished absolutely no information on any available options which might have enabled the committee to carry out its statutory function under s. 21 to advise in relation to the implementation of the accommodation programme in any real or meaningful way.
The minutes of a meeting of the Louth local committee held in the County Hall, Dundalk on Wednesday 2nd May, 2001 at 2.15 pm state:
"Mr Fitzsimons briefed the members on the Council's efforts to provide a temporary halting site on Council owned land at the disused railway station at Drumleck, Castlebellingham and how the local residents group had obtained a High Court injunction preventing the development from proceeding. It was now proposed to go through a full public consultation procedure with a view to developing this site as a permanent halting facility."
There appears to have been no consultation with the Committee prior to this meeting.
Furthermore, the minutes state:
"Mr Fitzsimons advised that, following the High Court ruling in the Drumleck halting site case, it was proposed to put forward an amendment to the Traveller Accommodation Programme which would eliminate the need for prior consultation, in any situation where the County Manager considered that an emergency situation existed in relation to the provision of urgent accommodation for any traveller family or families. This was noted and agreed."
In Byrne v. Fingal Co. Co. [2001] 4 IR 565 in considering a commitment to consultation McKechnie J. stated:
"… I am satisfied on the evidence that in attending this meeting, the respondent was not doing so in the context of engaging the local community in dialogue but rather its purpose was to inform the community of its plan and to convey its intention to implement it…. I am therefore of the view that the respondent did not comply with its own development plan in that it failed to undertake the commitment of engaging in the consultative process as set forth at para. 6.2.1 thereof. This commitment, on any reading of the relevant passage, and in order to have any value must be performed prior to proposals being finalised with regard to any given site. In this way it could be said to be a condition precedent to the finality of such proposals. As the interchange between the residents and the respondent in this case did not comply with the aforesaid requirement, it must follow that these intended works cannot proceed in the absence of this commitment being satisfied."
Although counsel for the plaintiff accept that McKechnie J. was here dealing with a breach of a consultation commitment in a development plan, counsel submits that McKechnie J.'s comments apply with equal force to the consultation requirements under s. 21(3) of the Act of 1998 and to the commitment given in the Traveller Accommodation Programme 2000-2004.
Section 32 (11) of the Traveller Accommodation Programme 2000-2004 provides for full and meaningful consultation with the public generally and any other interested persons or bodies. Clearly the plaintiff and his fellow residents living in the immediate vicinity of the proposed halting site at Drumleck were interested persons. In the consultation process it was pointed out that the sight lines were deficient at the entry/exit to the proposed site but this fact was not conceded at any stage by the defendant and it is hard to envisage how full and meaningful consultation took place having regard to this important fact.
The Traveller Accommodation Programme 2000-2004 as adopted by resolution of the elected members of Louth County Council provides that:
1. The council will consider all available options in relation to the type standard and location of traveller accommodation to be provided.
2. The council will engage in full and meaningful consultation of travellers themselves, traveller representative groups, statutory and voluntary agencies, the appropriate local traveller accommodation consultant committee, elected members, the public generally and any other interested persons or bodies.
3. The counsel will seek to keep both the traveller community and the general public fully informed at all times as to its various operations under the programme.
It is quite clear on the evidence available that in relation to the initial proposal there was no effective consultation but then, as previously outlined, the defendant changed course to move for the present development, which is now the subject matter of these proceedings, pursuant to the Part X procedure of the Regulations of 1994.
In his judgment in this matter as delivered on the 5th April, 2001, Murphy J. stated as follows:
"10. The issue in this case is whether the respondents, in seeking to accommodate certain families at present on the roadside at such a site can do so under s. 13 (2) of the Housing Act, 1988, without regard to the consultation requirements in the Traveller Accommodation Programme of the respondent.
11. That programme contains a policy statement that, within the resources available to it the Council will provide adequate accommodation for all traveller families to whom it is deemed to have responsibility.
In relation to the implementation of this policy the Council states that it will endeavour to ensure, inter alia, that:-
'(ii) there is full and meaningful consultation with travellers themselves, traveller representative groups, statutory and voluntary agencies, the appropriate local traveller accommodation consultative committee, elected members, the public generally and any other interested persons or bodies.'
It is clear that the local consultative committee, who may advise in relation to both preparation and implementation of any accommodation programme, must be notified.
12. It seems that s. 13 (2) of the Housing Act, 1988, as amended by
the Act of 1998, does not exclude the obligation of the Act of 1998 with regard to the consultation with the consultative committee.
13. The housing authority is further obliged to consult, in the
implementation of the programme, with other interested parties or bodies, including the public generally. This is not a statutory obligation but would appear to be a self-imposed obligation on the housing authority. It represents to the public that it will endeavour to ensure such 'full and meaningful consultation'.
It is clear from the affidavits filed in this matter that the respondent housing authority did not, in fact consult with the applicant. There is no averment as to their consultation with other interested parties."
I agree with the view as expressed by Murphy J. that while the obligation might not be statutorily imposed it is a self-imposed obligation on the housing authority to endeavour to ensure such full and meaningful consultation.
Section 39 of the Local Government (Planning & Development) Act, 1963, prohibits a planning authority from carrying out development which would involve a material contravention of the development plan. A planning authority enjoys no statutory discretion in interpreting the development plan.
In O'Leary v. Dublin Corporation [1988] I.R. 150 O'Hanlon J. stated that it was his opinion that "… the requirements of the planning law have to be applied with the same stringency against the local authority, in this case, as would be the case if the proposal came from a private developer."
In Roughan v. Clare Co. Co. (Unreported, High Court, 18th December, 1996) Barron J. stated that "[w]hat is or is not a contravention of the development plan is a matter to be determined by the court". He stated further that "[w]hat is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests. If there are no real or substantial grounds in the context of planning law for opposing the development, then it is unlikely to be a material contravention".
In Wicklow Heritage Trust Ltd. v. Wicklow Co. Co. (Unreported, High Court, 5th February, 1998) McGuinness J. stated that "[i]t is for the court and not for the local authority to decide as a matter of law whether a particular development is a material contravention of the development plan."
The plaintiff submits that the proposed development is clearly of significance and should have been specifically included in the development plan.
In Roughan v. Clare Co. Co. (Unreported, High Court, 18th December, 1996) Barron J. stated that he did "… not accept that it is unnecessary for a local authority to include all its development objectives in its plan". He continued: " In my view, if such a submission was to be accepted it would mean that this would enable the local authority, in perhaps only exceptional cases but certainly in some cases, to totally override not only the plan but the consultative procedures preceding the making of a development plan. In my view this cannot be the law." Here, however, the Court was considering a proposed halting site in a special development zone with specific restrictions imposed by the development plan on development within that zone.
In Keogh v. Galway Corporation [1995] 3 I.R. 457 Carney J. stated that "[i]t is central to the scheme of the [Local Government (Planning and Development) Act, 1963] that a citizen is to be given notice of a development which might affect him in a substantial way and have 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." Here, the court was considering a situation where the County Council wished to place a halting site in an area other than four areas specified in that County Development Plan as potential locations for a halting site.
Carney J. further stated: "The applicants in the instant case were entitled by virtue of the four specific locations set out in paragraph 3.9 of the development plan to assume that they were fully on notice of the respondents' intentions as regards halting sites or hard stands. I express no view as to the situation which would have prevailed had the development plan been silent as to hard stands or halting sites."
In Wicklow Heritage Trust Ltd. v. Wicklow Co. Co. (Unreported, High Court, 5th February, 1998) McGuinness J. deduced from the case law that a number of relevant principles emerge including: "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." It had been submitted by the County Council that there was no necessity to include the provision of waste disposal sites as an objective in the development plan as the Council had a statutory duty to dispose of waste and it could therefore be assumed that waste disposal sites would be included in the county area. McGuinness J. did not deal with the question as to whether it was necessary to make a waste management plan as she found that there was a material contravention anyway.
In P&F Sharpe Ltd. v. Dublin County Council [1989] I.R. 701 Finlay C.J. noted that road safety was a major feature of the planning authority's development plan and the granting of permission which would have involved "a significant and very important road hazard" would have constituted a material contravention.
Louth County Development Plan at p.83 states:
"The following are the policies of the Planning Authority as they affect the provision of transportation infrastructure:
TRP 1 Apply the standards as set out in the An Forás Forbartha document RT181 "Geometric Design Guidelines (Intersections At-Grade) together with the associated document published by the City and County Engineers Association (March 1996) "Design Considerations for Junctions in Urban and Rural Situations" and those for housing areas drawn up by Louth County Council.…
TRP4 Apply the visibility standards as set out in Table 4.5 of Chapter 4 to proposed dwellings in the Countryside"
The development plan continues:
"On National, Regional and County roads, policies TRP1 and TRP4 will apply to proposed new accesses or proposed intensification of an existing access."
In the original map as prepared by Lynch O'Toole Martin, Architects and Consultants, on behalf of the defendant, dated the 24th August, 2001, the entrance area to the site is delineated and adjacent thereto is written the words "adapt ground levels in this area to achieve the required sightlines". Even when these proceedings commenced before me the sight lines were not agreed. The situation was arrived at where on my suggestion the relevant engineers attended on site and only then was agreement actually reached that the sight distance to the right of the entrance as one exits was only 106 metres whereas the Louth Development Plan provides for a sight line distance of 125 metres. It is unsatisfactory that this matter was only clarified in the mid-course of the hearing of these proceedings and it is quite clear that Mr.O'Brien, the plaintiffs' consulting engineer, was correct in his initial views.
Subsequent to the site inspection, midway through the proceedings, the defendant clarified its proposals to adapt ground levels in the area to achieve the required sight lines and are proposing a gradient of approximately 12.50% over a distance of three meters.
Mr. O'Brien has given evidence that this proposal by Mr. Fallon on behalf of the County Council did not comply with TRP1 as set out at paragraph 7.25 of the Louth County Council Development Plan, 1997. Mr. O'Brien says that the requirement in the development plan applies to the intersection on the road in question and to entrances such as the one proposed from the roadway into the halting site. He says that the proposal does not comply with the development plan.
Counsel on behalf of the defendant made the case that the proposal does not breach any standard because the standards do not apply but I am satisfied that there is a specific reference in the development plan to RT181 and I find on the evidence that the sight line guide is breached as is the maximum gradient.
Mr. James Wynne, engineer, takes the view that the sight distance of 105 metres constitutes a material contravention, and I accept his evidence in this regard. He also says it is a very hazardous situation involving children which evidence I accept.
I am satisfied in the particular circumstances of this case that the proposed site entrance to the halting site at Drumleck is a material contravention of the Louth County Development Plan, 1997, insofar as the proposed site entrance breaches the defendant's own regulations and standards.
Accordingly I come to the conclusion that insofar as the sight distances and the gradients are concerned the proposal by the defendant is in breach of the relevant provisions of the Louth County Development Plan, 1997.
Part X of the Local Government (Planning and Development) Regulations, 1994, provides that a local authority shall send notice of certain proposed development to a relevant body such as An Taisce, the Regional Fisheries Board or an appropriate Health Board. The notice will indicate the location, nature and extent of the proposed development, be accompanied by a copy of the plans and particulars of the proposed development (as made available to the public), and state that submissions may be made in writing to the local authority.
A report shall be prepared by the local authority describing the nature and extent of the proposed development and evaluate the likely implications. The members of the local authority shall indicate whether they will proceed with the proposed development, or proceed subject to variations or modifications or not proceed with the development at all.
The plaintiff submits that the defendant appears to suggest that it has complied with its consultation obligations under the Traveller Accommodation Programme 2000-2004 by adopting the Part X procedure. It is submitted by the plaintiff that this suggestion shows a complete failure on the part of the defendant to appreciate the nature and extent of the obligation to engage in full and meaningful consultation, pursuant to the terms of para. 2 of the Traveller Accommodation Programme 2000-2004.
The Part X procedure is site specific, and only comes into play when a preferred location for a halting site has been identified and has thus achieved the status of a proposed development.
It is submitted by the plaintiff that the clear import of s. 2 of the Traveller Accommodation Programme 2000-2004 is that full and meaningful consultation with various parties will take place regarding all available options for traveller accommodation, prior to any identification of any preferred location for a halting site. The defendant should have had full and meaningful consultation with the local committee prior to identifying a specific site. Then, the defendant could have pursued the Part X procedure.
The plaintiff submits that the current proposal does not comply with that submitted under the Part X procedure. It is submitted that the Council did not disclose either to the public or the elected members that the sightlines were significantly below that required by the development plan, that extensive works would be required to remedy this situation, and that the entrance would not conform to objectives TRP1 and TRP4 in the development plan in that it would not comply with the standards set out in RT181. Furthermore, the works required were not set out in the plans and particulars and, as now proposed, go far beyond what was contemplated in the plans and particulars submitted in the Part X process.
I am satisfied on the evidence that notwithstanding the fact that the defendants had a list of 26 potential sites for a permanent transient halting site no consideration was given to the other 25 sites other than Drumleck and I take the view that having originally proposed Drumleck and having initially been thwarted by the plaintiff's legal proceedings the defendants took a decision to adopt the Part X procedure and to proceed ahead with the same site without considering any other site.
It is clear in the circumstances of this case that none of the other 25 sites were ever considered and when the defendant opted to change its course of action it simply changed its procedure in relation to the actual site at Drumleck as opposed to changing its procedure and starting the process anew.
In these circumstances I take the view that the defendant breached its own traveller accommodation programme because it did not consider all available options but simply stayed with the same site adopting a different procedure against a background where it is clear that the plaintiff in these proceedings would as a probability have obtained the relief as sought by them because of a failure to consult beforehand with all interested parties.
Having considered all available options the defendant was then obliged to engage in full and meaningful consultation with all interested parties or bodies including the public generally.
The difficulty that arises for the defendant by reason of the self-imposed consultation obligation is that there was no consultation prior to the site at Drumleck being chosen as the proposed halting site. I accept the submission of the plaintiff herein that the Part X procedure is site specific and only comes into play when a preferred location for a halting site has been identified and has thus achieved the status of a proposed development. I further accept that the clear import of s. 2 of the Traveller Accommodation Programme 2000-2004 is that a full and meaningful consultation with various parties will take place regarding all available options for traveller accommodation prior to the identification of the preferred location for a halting site. In my view the defendant fell into error by changing its procedure in respect of the same site. What should have occurred is that the defendant should have abandoned this proposal to develop the site at Drumleck and should have started the procedure anew in compliance with the Part X procedure and the traveller accommodation programme so that all available options would be considered and there would be full and meaningful consultation. It may well have been that the site at Drumleck would again have become the preferred site but I am not in a position to comment in this regard one way or the other because quite simply no consideration in my view was given to any other site and when the defendant realised they could not proceed as planned with the procedure that had been adopted they simply changed procedure.
In normal circumstances a material contravention would bring about a situation whereby the plaintiff in proceedings such as these would be entitled to the relief claimed. Counsel for the defendant refers to ss. 26 and 27 of the Act of 1998 which, it is contended, provides for the Council being in a position to materially contravene its own development plan in any way in order to provide or implement an accommodation programme.
Sections 26 and 27 state:
"26.— (1) Section 19 of the Act of 1963 is hereby amended in subsection (2) by—
(a) the insertion in paragraph (a) of the following after subparagraph (v) (inserted by the European Communities (Natural Habitats) Regulations, 1997(S.I. No. 94 of 1997)):
"(vi) for the provision of accommodation for travellers and the use of particular areas for that purpose, and",
and
(b) the insertion in paragraph (b) of the following after subparagraph (iv) (inserted by the European Communities (Natural Habitats) Regulations, 1997(S.I. No. 94 of 1997)):
"(v) for the provision of accommodation for travellers and the use of particular areas for that purpose.".
(2) Section 19 of the Act of 1963 is hereby amended by the insertion after subsection (9) of the following:
"(10) In this section 'traveller' has the meaning assigned to it by section 2 of the Housing (Traveller Accommodation) Act, 1998.".
27.—(1) A planning authority may, when complying with the provisions of paragraphs (a)(vi) (inserted by section 26) of section 19(2) of the Act of 1963, include those objectives in a variation of the development plan under section 20(1) of the Act of 1963 or a new development plan under section 20(1) of the Act of 1963 (as amended by section 43(1)(e) of the Local Government (Planning and Development ) Act, 1976 ) of which notice under section 21(1)(b) of the Act of 1963 is published after the coming into operation of section 26.
(2) Notwithstanding the provisions of section 39 of the Act of 1963, any thing done or act carried out by a housing authority for the purpose of implementing an accommodation programme shall be deemed not to contravene a development plan in the period between the coming into operation of section 26 and compliance with paragraph (a)(vi) (inserted by section 26) and (b)(v) (inserted by section 26) of section 19(2) of the Act of 1963."
Counsel for the plaintiff submits that the statutory context makes it clear that s. 27 (2) relates only to one particular type of contravention of a development plan for a temporary period: namely, a failure to zone the use of particular areas for the provision of accommodation for travellers. It is contended that s. 27 (2) has absolutely no applicability to any other type of contravention of the development plan. It is submitted that any other interpretation of s. 27 (2) will be irrational and absurd.
Counsel for the defendant submits:
"If which is denied there has been any breach of the development plan same is in any event wholly authorised by statute in the present case insofar as the plaintiff have sought to rely upon s. 39 of the Local Government (Planning and Development) Act, 1963 which states as follows:
'The council of a county shall not effect any development in their county health district which contravenes materially the Development Plan'.
Same is specifically excluded in the present case by virtue of s. 27 (2) of the Housing (Traveller Accommodation) Act, 1998, which states as follows:
'Notwithstanding the provisions of section 39 of the Act of 1963 any thing done or act carried out by a housing authority for the purpose of implementing an accommodation programme shall be deemed not to contravene a development plan in the period between the coming into operation of section 26 and compliance with paragraphs (a)(vi) (inserted by section 26) and (b)(v) (inserted by section 26) of section 19 (2) of the Act of 1963.'"
Counsel for the defendant submits that in the present case the current Development Plan of Louth Co. Co. is the Development Plan of 1997 which was passed prior to compliance with paragraph (a) (vi) and (b) (v) of s. 19(2) of the Act of 1963 (as inserted by s. 26 of the Act of 1998) and accordingly the works being proposed herein are works being carried out in the period between the coming into operation of s. 26 of the Act of 1998 and compliance with paragraphs (a) (vi) and (b) (v) of section 19 (2) of the Act of 1963 and that by reason of the foregoing the provision of the halting site in its proposed location which is necessary for the purpose of implementing the accommodation programme cannot be deemed to contravene a development plan, and further that there is no obligation on the defendant herein to amend its development plan imposed by s. 27 of the Act of 1998, or indeed by s. 39 of the Act of 1963, prior to carrying out the development proposed herein and the protection provided by s. 27 (2) applies fully in the present case, and accordingly that the provision of the halting site in its proposed location, which is necessary for the purpose of implementing the accommodation programme cannot be deemed to contravene a development plan.
Only an act carried out by a housing authority for the purpose of implementing an accommodation programme shall be deemed not to contravene a development plan. It cannot be correct that an act that is not in accordance with the accommodation programme can be included in this exception as such an act could not be for the purpose of implementation of the accommodation programme. Therefore, if the act does not comply with any requirements imposed under the traveller accommodation programme it is not an act for the purpose of implementing an accommodation programme, and therefore cannot avail of the protection afforded under s. 27(2) of the Act of 1998.
I take the view that ss. 26 and 27 of the Housing (Traveller Accommodation) Act, 1998 are to be read in conjunction with each other and I accept the submission of counsel for the plaintiff that s. 27 (2) relates to the failure to zone the use of particular areas for the provision of accommodation for travellers and does not entitle the defendant to have the right to unlimited breaches of its own development plan. In effect, construed pursuant to the submissions of counsel for the defendant the defendant would have the right to drive a coach and four through its own development plan in any way it thought fit so as to provide an accommodation programme. I do not accept that this was either the intent or the purpose of the legislature when bringing into force ss. 26 and 27 of the Housing (Traveller Accommodation) Act, 1998.
Insofar as the plaintiff contends that there was a material contravention of the development plan by reason of the failure of the defendant to specify a particular development in the plan of 1997 it does appear to follow for the reasons set out by me herein that the defendants are entitled to rely on ss. 26 and 27 of the Housing (Traveller Accommodation) Act, 1998, and thus insofar as specification or zoning is concerned I do accept that the relevant provisions of the Act of 1998 afford the defendant the absolute right to implement an accommodation programme for travellers and by virtue of s. 27 (2) the proposed development will be deemed not to contravene the development plan as it comes within the relevant period.
It would appear that counsel for the defendant accepts that s. 27(2) can only apply for the purpose of implementing the accommodation programme. I take the view that if the defendant is not complying with the consultation requirements as required under the accommodation programme, they are not implementing the accommodation programme, and therefore the section does not apply in the particular circumstances.
The defendant can materially contravene its development plan to provide or implement an accommodation programme. However, the defendant is confined within the ambits of the accommodation programme in its implementation. Accordingly, the defendant must have regard for any self-imposed consultation requirements as set out in the accommodation programme as adopted by it.
It is self-evident that the siting of the proposed halting site is a sensitive issue for the plaintiff and the residents who are residing immediately adjacent thereto and I take the view that where the defendant is going to adopt a new procedure they must do so anew and must comply with their own self-imposed obligations in addition to the relevant statutory requirements.
Accordingly I propose to grant the plaintiff an injunction restraining the defendants, their servants or agents, licensees or anyone having knowledge of the making of this Order from taking any further steps in relation to the procedure under Part X of the Local Government (Planning and Development) Regulations, 1994, in respect of the provision of a halting site on the lands the subject matter of these proceedings and situated at Drumleck, Castlebellingham, Co. Louth.
I further propose to grant the plaintiff the following declarations:
1. A declaration that the decision made by the defendant on a date unknown but subsequent to the adoption of the defendant on the 24th of January, 2000, of a traveller accommodation programme to carry out the development of a halting site on lands owned by the defendant at Drumleck, Castlebellingham, County Louth, was unlawful by reason of the fact that it was made in breach of the provision of the Traveller Accommodation Programme 2000-2004 and in particular in breach of the provisions relating to public consultation;
2. A declaration that the plaintiff herein had a legitimate expectation that the provisions of the Traveller Accommodation Programme 2000-2004 relating to public consultation would be followed in a proper manner and in accordance with the provisions of natural and constitutional justice in particular in relation to the selection of the lands at Drumleck as a halting site;
3. A declaration that the said development is unlawful by reason of the failure of the defendant to implement the said development in accordance with the provisions of the Housing Acts, 1996 to 1998, and in particular having regard to the provisions of the Housing (Traveller Accommodation) Act, 1998;
4. A declaration that the defendant is not entitled to initiate the procedure prescribed under Part X of the Local Government (Planning and Development) Regulations, 1994, in respect of the provisions of a halting site on the said lands at Drumleck, Castlebellingham, County Louth:(a) unless and until the procedures prescribed under the Housing
(Traveller Accommodation) Act, 1998, have been complied with;(b) unless and until the defendant considers all available options in relation to the type, standard and location of accommodation to be provided for traveller families;(c) unless and until full and meaningful consultation has taken place with the travellers themselves, traveller representative groups, statutory and voluntary agencies, the appropriate local traveller accommodation consultative committee, elected members, the public generally and any other interested persons or bodies in relation to all available options for the accommodation of traveller families, in terms of the type, standard and location of accommodation to be provided;
5. A declaration that the said decision by the defendant made on a date unknown but subsequent to the adoption by the defendant on the 24th January, 2000, of a traveller accommodation programme for the period 2000 to 2004 to carry out the development of a halting site at the said lands is invalid, void and of no legal effect;
6. A declaration that the development by the defendant of the said lands at Drumleck, Castlebellingham, County Louth, as a halting site would amount to a material contravention of the provisions of the Louth County Development Plan, 1997, and would thereby constitute a contravention of s. 39(1) of the Local Government (Planning and Development) Act, 1963, as amended.