Chapter 14: Land-use zoning
Dear Sir / Madam
We make this submission on behalf of our client, Marlet Property Group and its group companies, in respect of the Draft Dublin City Development Plan 2022 - 2028 (the Draft Plan). The submission relates to our client's lands in Raheny, Dublin 5, which are colloquially referred to as the playing fields to the east of St Paul's College, Sybil Hill Road (the Lands).
We also refer to the submission on the Draft Plan, made by John Spain Associates on behalf of Marlet Property Group, which submission focusses on: (i) residential development; (ii) cultural and performance space; (iii) zonings and (iv) density. To the extent that any of the issues raised by John Spain Associates are relevant to the Lands, we adopt the same position for the purposes of this submission.
Background
Under the Dublin City Development Plan 2016 - 2022 the Lands are zoned as "Land-Use Zoning Objective Z15: To protect and provide for institutional and community uses".
In the Draft Plan, issued by the Chief Executive on 16 September 2021, the proposal in respect of the Lands was for 3.393 hectares to be zoned as Z9 open space and the remaining 4.164 hectares to be zoned as Z1 residential. The zoning map reference applicable to the Lands for the purposes of the Draft Plan is B-087. The proposed rezoning was put forward by the Chief Executive on the grounds that the institutional use is now confined to the St Paul's school to the west of the Lands. The Chief Executive, on advice from the Dublin City Council Planning Department, stated that the proposed rezoning, from Z15 to Z1 and Z9, would provide a reasonable balance between the need to provide for open space, biodiversity and tree protection, whilst providing for housing in accordance with the core strategy.
During the Dublin City Council meeting, held on 10 November 2021, three motions were put forward by Councillors to reject the Chief Executive proposed zoning for the Lands. These motions were put forward by Councillor Deirdre Heney, Councillor John Lyons and Councillor Naoise O'Muiri.
The planning reason or rationale stated by Councillor Heney during the webcast of the meeting for rejecting to the Chief Executive proposed zoning for the Lands was "Because the existing zoning is more appropriate to provide for and meets the demand for community and open space use so no requirement to rezone from Z15 to Z1 and Z9.
The planning reason or rationale provided by Councillor Lyons for rejecting to the Chief Executive proposed zoning for the Lands was: "It is widely established that these lands need to remain as open space and therefore the most appropriate zonings are Z9 and Z15."
The planning reason or rationale provided by Councillor O'Muiri for rejecting to the Chief Executive proposed zoning for the Lands was: "There is continuing demand for playing pitches and related facilities at this location so rezoning from Z15 to Z1 is not appropriate."
Submission
It is our submission that proposed zoning for the Lands should revert to that proposed by the Chief Executive, being Z1 and Z9. We agree with the Chief Executive that this zoning provides a reasonable balance between the need to provide for open space, biodiversity and tree protection, whilst providing for housing in accordance with the core strategy.
It is also our submission that the reasons provided by Councillors Heney, Lyons and O'Muiri for the proposed rezoning of the Lands, from Z1 and Z9 to Z15 and Z9, are wholly inadequate. The absence of adequate reasons gives rise to a situation where it is not possible to assess whether the proposed rezoning is lawful.
In the case of Sister Mary Christian and Others v Dublin City Council (No 1) 2012, Mr Justice Clarke, as he was then, stated as follows at paragraph 2 9.1:
"… the underlying rationale for the requirement to give reasons is that an interested party is entitled to assess whether or not there may be a case to be made that a local authority has acted unlawfully in formulating a development plan. The reasons required to be given must, therefore, be sufficient to allow such an assessment to be made. In addition, in the event that there be a challenge, the reasons must be sufficient to allow the court to exercise its role in determining whether or not the formulation of the development plan was lawful. It follows that the reasons must be capable of being ascertained by any interested parties and the reasons must also be capable of ready definition."
In our submission, there are insufficient or inadequate reasons to be found either in the Draft Plan or in other accessible materials, such as would justify the proposed rezoning, from Z1 and Z9, as per the Draft Plan issued by the Chief Executive on 16 September 2021, to Z15 and Z9. It is noteworthy that the minutes of the Council meeting held on 10 November 2021 do not record any reasons for the proposed rezoning.
In circumstances where the Councillors' amendments are retained, such that the majority of the Lands remain zoned as Z15, and absent good and sufficient reasons for the retention of this proposed amendment, our client will consider all available options open to it, including seeking to judicially review the Development Plan, once adopted.
Yours faithfully
A&L Goodbody LLP