Wednesday 24 January 2018

Formal orders made quashing restrictive zoning

Tim Healy

A JUDGE has made orders formally quashing a more restrictive zoning of 2,000 acres in Dublin city's new development plan.

Mr Justice Frank Clarke has also directed Dublin City Council to meet to consider how the now unzoned lands are to be zoned.

Mr Justice Clarke, who was recently promoted to the Supreme Court, made the orders following a decision he made while on the High Court bench in a case taken against the more restrictive "Z15" zoning by the Sisters of Charity.

The judge stressed yesterday it remains open to the Council to zone some or all of the 2,000 acres as resource lands for the city provided it gives full reasons for doing so and complied with other aspects of his judgment upholding the challenge by the Sisters in relation to their lands in the city.

About 51 per cent of all of the lands which were zoned Z15 are held by religious institutions with the Sisters' 108 acres of lands accounting for about a half per cent of the entire lands in the plan.

In a judgment last April, Mr Justice Clarke found all the Z15 zoning aspects of the Dublin City Development Plan 2011-2017 must be quashed because the Council failed to give adequate reasons for such "highly restrictive" zoning.

The Council and the Sisters had differed as to what should happen as a result of the judgment and the judge heard arguments form both sides before delivering a supplemental judgment this week setting out the formal orders arising from his decision.

The judge noted the main issue between the sides related to how the Council should now deal with the lands that had been zoned Z15 but were now effectively unzoned.

He said he was proposing directing a three stage process to address that issue. The first stage will involve a meeting of the Council to adopt proposals to deal with the lands that had been zoned Z15 while the second stage will involve a public consultation process of six weeks to receive submissions on the new proposals.

The third stage will involve a final meeting of the Council to consider those submissions and the City Manager's report on those before making a final decision on appropriate inclusions in the plan.

If during that three stage process a material amendment to the plan is proposed, the relevant procedures applicable under the Planning Act 2000 to such a material amendment will apply, he said.

The judge also upheld arguments by the Sisters that the Council's decision to adopt the Development Plan, and all of the Z15 zoning references in the plan itself, should be quashed.

He also granted a declaration the lands owned by the Sisters whch had been zioned Z15 are now subject to no zoning unless and until changes to the plan are adopted by the Council in accordance with the process specified by the court.

He upheld arguments by the Council that a reference in the plan outlining "the need to esnure that there is an increase in the amount of resource lands available in the city" should remain in the plan and not be deleted.

He would leave in that reference because, due to the absence of reasons for the Z15 zoning in the plan, he had not reached any conclusion whether it would, on principle, be permissible to provide for Z15 zoning or something like it in general terms. He had not reached conclusions whether some form of zoning or zonings designed to maintain resource lands might be justified, the judge added.

He also ruled that provisions allowing social and affordable housing, but not residential housing, to be considered on lands zoned Z15 could not be reproduced in any new development plan.

The judge also awarded all costs of the case to the Sisters against the Council, minus a sum of €15,000 to reflect that the Sisters had lost one issue relating to whether the Z15 zoning breached Article 44 of the Constitution.

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