THE Supreme Court yesterday rejected an attempt by Malahide Community Council Ltd to stop low density housing development on 36 acres of the green belt between Malahide and Portmarnock, Co Dublin.
The lands were zoned green belt in the original Co Dublin Draft Development Plan in 1991. In April, 1993, councillors voted 38-24 to rezone them as residential. It is proposed that not more than 250 dwellings be allowed.
The proposed amendment was made public and the council received 8,462 representations, thousands in favour of each side. In September, 1993, councillors voted 33-31 to confirm the amendment. In December, 1993, Fingal Co Council adopted the Draft Development Plan with the lands zoned as residential.
Malahide Community Council Ltd - which now faces a substantial bill after being ordered to pay the costs of the six day High Court hearing and the Supreme Court hearing - began a legal challenge.
In December, 1994, the High Court ordered that the lands at Robswall near the coast road from Malahide to Portmarnock, should be zoned green belt and that the Co Council amend the Co Development Plan accordingly.
The High Court decision was appealed by Fingal Co Council and three companies which were notice parties to the proceedings, Gannon Homes Ltd, Nassana Ltd and Comeragh Properties Ltd.
Mr Michael Ryan, secretary of Malahide Community Council Ltd, said on affidavit that he attended the September, 1993, meeting of the council. Almost all members of the council who spoke in favour of the rezoning did so on the basis that it would result in an improvement to sports facilities by virtue of an agreement between landowners, developers and sports clubs.
Mr Ryan said the county council, in considering amending the county draft development plan, should only have considered proper planning and development, and that agreements between it and other parties over which it had no control should not be taken into consideration.
Giving the Supreme Court judgment yesterday, Mr Justice Lynch said an agreement between the notice parties and sports clubs would provide 10 acres to the clubs and substantial funds to enable them to develop pitches and clubhouse facilities. The county council was not a party to that agreement.
Fingal Co Council submitted that the provision of amenities and open space was a valid objective. Although the county council could not directly enforce the agreement of the three notice parties regarding provision of sports facilities, it could indirectly do so by rigid refusal of planning permission other than for sports facilities for the remainder of the 147 acres, and thus preserve those 111 acres as amenity land.
Mr Justice Lynch said there were insurmountable procedural difficulties in upholding the High Court order declaring that the lands be zoned green belt and ordering the county council to amend the Co Development Plan.
Apart from the procedural difficulties, there were more fundamental reasons why the High Court order could not stand. The duty and power to make and review a development plan was entrusted by the legislature to the local authority. No such function was entrusted to the courts.
All a court could do, if it found the county council had exceeded its powers or acted in some seriously unlawful or irregular manner such as to invalidate a decision it had made, would be to quash the decision and direct the county council to reconsider the matter and decide the question in a lawful manner.
That could result in exactly the same decision being made.
Having given the Supreme Court's judgment, Mr Justice Lynch said he doubted whether Malahide Community Council Ltd had any locus standi (standing) to maintain the proceedings.
Assuming it did not own any buildings or lands which it might seek to develop or which might be affected by planning applications by other parties, he found it difficult to see how a limited company could be affected by planning objections, decisions or applications.