From “Have Regard” to “Accordance”: Flood‑Risk Zoning, NPO 57 and Ministerial Directions in Voyage Property Ltd v Limerick City & County Council [2025] IEHC 696

1. Introduction

This High Court judgment by Holland J deals with a dense knot of planning, flood‑risk and public law issues arising from the Limerick Development Plan 2022–2028. At its heart lies a conflict between:

• local elected members who wished to zone tidal floodplain lands (“the Subject Lands”) for new residential development; and
• the Office of the Planning Regulator (OPR) and the Minister, who considered such zoning unlawful in light of national flood‑risk policy.

The case concerns approximately 10 hectares of the former Greenpark Racecourse, west of Limerick city centre, located almost entirely in Flood Zone A (high probability of flooding). Voyage Property Ltd (“Voyage”) owns around 47 hectares of the former racecourse and had already secured a strategic housing development (SHD) permission for 371 dwellings on the relatively safe, Flood Zone C portion.

In the 2010 Limerick City Development Plan, the eastern and south‑eastern Greenpark lands (including the Subject Lands) were zoned Residential, despite being mapped in Flood Zones A and B. In the new Draft Plan for 2022–2028, the executive proposed re‑zoning most of these lands to Enterprise & Employment (E&E), keeping only the less flood‑prone corner for housing. Voyage sought to retain residential zoning over a broad swathe of its lands via a material alteration (MA 147).

The elected members adopted MA 147, zoning 14.7 ha as “New Residential”. The OPR strongly objected, recommending a ministerial direction under s.31 of the Planning and Development Act 2000 (“PDA 2000”). The Minister ultimately issued a direction reversing MA 147 (save for the SHD lands), returning the Subject Lands to E&E / open space zoning. Voyage brought judicial review, seeking to quash the direction and restore residential zoning.

The judgment is important for at least four reasons:

1. It holds that, via National Policy Objective 57 (NPO 57) of the National Planning Framework (NPF), the Flood Risk Guidelines have, in the development plan context, effectively moved from “have regard to” status (s.28) to a requirement of accordance.
2. It clarifies the structure and legal effect of the Sequential Approach and distinguishes the Development Plan Justification Test (DPJT) from the Development Management Justification Test (DMJT).
3. It explains the standard of review and limits on ministerial directions under s.31 PDA 2000, in light of cases like Tristor and the Dublin Airport Noise case (FoIE v Minister for Housing).
4. It gives guidance on how members’ reasons must be recorded and communicated under the OPR/ministerial supervision regime (ss.31AM–31AN), and on the limited utility of challenging upstream steps in the “Byzantine” process if the central national policy ground is sound.

2. Summary of the Judgment

2.1 Outcome

• All grounds of challenge were dismissed; the ministerial direction stands.
• Voyage did not secure reinstatement of residential zoning; the Subject Lands remain zoned for E&E / open space.
• The judgment’s core holding is that zoning the Subject Lands for highly vulnerable residential use in Flood Zone A was inconsistent with NPO 57 and not in accordance with the Flood Risk Guidelines, and that the Minister was lawfully entitled (indeed required) to intervene under s.31 PDA 2000.

2.2 Central Holdings

Key points distilled:

• NPO 57 is not merely aspirational. It requires development plans to ensure that flood‑risk management informs place‑making by avoiding inappropriate development in flood risk areas in accordance with the Flood Risk Guidelines. In this specific context, it effectively “hardens” those Guidelines from pure “have regard to” documents into a normative standard of legality for development plan zoning.
• Sequential Approach is binding in substance. For development plan zoning in Flood Zones A and B, authorities must:
  1. Avoid vulnerable uses there if at all possible;
  2. Substitute less vulnerable uses where development is necessary; and
  3. Apply a rigorous Development Plan Justification Test, only in exceptional cases where vulnerable uses cannot be avoided or substituted.
  Residential use in Flood Zone A is “exceptional” and strongly presumed inappropriate.
• DPJT must be development‑specific. A DPJT is not a generic test for the site; it must be applied to the particular use proposed (e.g. residential vs industrial). A DPJT that justifies E&E does not automatically justify residential development.
• No DPJT for residential was ever done. Neither LCCC nor Voyage’s consultants RPS carried out a genuine DPJT for zoning the Subject Lands as New Residential. RPS only did DMJTs linked to concrete development proposals, and those did not cover the bulk of the Subject Lands.
• Adequate alternative residential lands existed. Once Voyage abandoned its ground alleging an under‑zoning of residential land (Ground 13), the court had to proceed on the basis that the Development Plan already zoned sufficient suitable lands elsewhere to meet housing targets. This was fatal to any DPJT for residential zoning on the high‑risk floodplain, because Avoidance and DPJT Criterion 2(v) (no suitable alternative lands) could not be met.
• OPR and Minister were entitled to conclude illegality. Given the above, the Minister’s opinion that the Development Plan, as made, was inconsistent with NPO 57, failed to set out an overall strategy, and was not in compliance with the Act was within the zone of permissible evaluative judgement and reviewable only for irrationality.
• Alleged procedural flaws in OPR/CE reasoning did not warrant certiorari. Even where Holland J found weaknesses (e.g. the OPR’s initial refusal to look at certain motion papers; JBA’s cursory treatment of residential use in one passage), he held that:
  • the OPR and Minister in fact had sufficient information about the members’ reasons and Voyage’s case; and
  • the core NPF/flood‑risk ground provided an independent, lawful basis for the direction.

3. Factual and Legal Background

3.1 The Lands and Flood Context

• Greenpark Racecourse lands: about 47 ha south of Dock Road, purchased by Voyage in 2019.
• Existing flood mapping (unchanged since the 2010 plan and not disputed):
  • Most of Greenpark is in Flood Zone A (high probability of flooding).
  • Small areas in Zone B (moderate probability).
  • Some patches, notably in the south‑east, in Zone C (low probability).
• SHD Site: ~7.9 ha residential area (within a 10.5 ha application site) largely in Zone C, where the Board granted 371 dwellings in 2022. This is mainly the “low‑hanging fruit”, as Holland J puts it. The ministerial direction deliberately left this zoning/permitted scheme untouched.
• Subject Lands: roughly 10 ha, comprising the northern part of the MA 147 lands, entirely in Zones A/B and predominantly in Zone A. These are the only lands genuinely at issue in the litigation.

Flood risk arises from tidal/riverine flooding from the Shannon and its tributary, the Ballynaclough. There are OPW embankments, but under the Flood Risk Guidelines these must be ignored for zoning decisions; their presence means the area is still considered “at risk”, not “safe”.

3.2 Development Plan Process in Outline

• 2010 Plan:
  • Zoned much of Greenpark (including the Subject Lands) as Residential, despite the flood zones.
  • No DPJT was done at that time (later confirmed by LCCC).
• Draft 2022 Plan (June 2021):
  • Supported by a Strategic Flood Risk Assessment (SFRA) from JBA.
  • Proposed to change most Greenpark lands (including the Subject Lands) to Enterprise & Employment, with ~4.4 ha in the safer corner to be Residential and ~1.8 ha Open Space.
  • JBA carried out a DPJT only for E&E on Greenpark, concluding that E&E zoning in the floodplain could be justified on regional employment and compact‑growth grounds.
• Voyage’s submissions:
  • Through planning consultants TPA, Voyage made an extensive submission (September 2021) arguing that:
    • Greenpark was ideal for compact city residential growth;
    • the DPJT does not distinguish between land‑use types (a proposition the court rejects); and
    • based on RPS’s Greenpark Masterplan Flood Risk Assessment (December 2020), the MA 147 lands satisfied all DPJT criteria for residential zoning.
  • In fact, RPS had only carried out:
    • a DMJT for Voyage’s masterplan (Dec 2020); and
    • a DMJT for the SHD proposal (Sept 2021).
    Neither was a DPJT for residential zoning at plan level, and neither properly covered the bulk of the Subject Lands for the purpose now claimed.
• Chief Executive (CE) Draft Plan Report (Nov 2021):
  • Recommended against residential zoning at Greenpark, emphasising:
    • the lands’ location in Flood Zones A/B; and
    • that the Draft Plan had zoned “sufficient alternative residential lands” elsewhere, not at risk of flooding and suitable for highly vulnerable use.
  • On that basis, the CE concluded that a DPJT for residential could not pass and recommended rejecting Voyage’s proposals.
• Material Alteration MA 147 (Feb 2022):
  • At Voyage’s instigation, an elected member proposed MA 147, rezoning 14.7 ha of Greenpark (including the Subject Lands) to “New Residential”.
  • The motion paper included 10 reasons, including a table which purported to apply the DPJT criteria to support residential zoning.
  • The members adopted MA 147, contrary to both the CE and the OPR’s earlier advice on the Draft Plan.
• Material Alterations SFRA (March 2022):
  • JBA updated the SFRA to address the material alterations, including MA 147.
  • Crucially, JBA:
    • did not carry out a fresh DPJT for residential zoning; and
    • repeated its conclusion that the lands were “not suitable for highly vulnerable development due to the level of residual risk and the brownfield nature of the site”, but that less vulnerable E&E uses might be accommodated.
  • Appendix D to that SFRA included Voyage’s RPS reports and TPA submissions in full.
• OPR and OPW objections:
  • OPW objected to MA 147 as allowing inappropriate residential development in a high flood‑risk area that had not passed a plan‑making justification test.
  • In its material alterations submission (April 2022), the OPR:
    • asserted that the Draft Plan already zoned more than enough suitably located land for housing;
    • invoked NPO 57 and the Flood Risk Guidelines; and
    • issued Recommendation no. 4 that MA 147 (and other similar amendments) be omitted.
• CE Material Alterations Report (May 2022):
  • Recommended omitting MA 147, relying on the OPR and OPW submissions and flood risk.
  • Again emphasised that sufficient alternative residential lands existed in safer locations.
• Final adoption of Development Plan (17 June 2022):
  • Despite the CE and OPR’s misgivings, the members again adopted MA 147, retaining residential zoning on the floodplain.
  • Minutes later approved (11 July 2022) recorded seven reasons for adopting MA 147, including:
    • housing need and compact growth policy;
    • the SHD permission;
    • alleged failure of the executive to apply a residential DPJT; and
    • the assertion that Greenpark had in fact passed a DPJT, based on RPS’s work.
• OPR notices and Ministerial involvement:
  • s.31AM(6) notice (June 2022): LCCC notified the OPR that it had not complied with OPR recommendations, and gave the members’ reasons.
  • OPR’s internal assessment and s.31AM(8) notice (15 July 2022): The OPR recommended a draft ministerial direction to reverse MA 147 (except SHD lands) because:
    • the housing zoning was inconsistent with NPO 57 and the Flood Guidelines; and
    • no DPJT for residential had been passed and adequate alternative lands existed.
  • Minister’s s.31(3)–(4) notice (28 July 2022): Indicated an intention to issue a direction; MA 147 became temporarily ineffective by statute.
  • Voyage/TPA submission (19 August 2022): Vigorously opposed the draft direction but did not clearly assert that the members had themselves carried out a DPJT for residential use.
  • CE’s report under s.31(8)–(9) (Sept 2022) summarised submissions and recommended making the direction.
  • OPR’s s.31AN(4) recommendation (28 September 2022) repeated its analysis and recommended the direction be made.
  • OPW supported the draft direction.
  • Ministerial Direction (4 November 2022) was then made, requiring reversion to E&E/open space zoning, save for the SHD lands.

4. Precedents and Authorities

4.1 Cork County Council v Minister for Housing [2021] IEHC 683

This decision (Humphreys J) is repeatedly cited for the nature of s.28 guidelines:

• Section 28 imposes a duty to “have regard to” guidelines — nothing more. No “kind of compliance” is required.
• Mandatory wording inside a guideline does not convert it into binding law.

Voyage leaned on this to argue that the Flood Risk Guidelines remained merely advisory and that non‑compliance could not ground a s.31 direction. Holland J accepts the Cork principle as to s.28, but distinguishes the present case because NPO 57 of the NPF overlays an additional statutory consistency obligation.

4.2 Killegland Estates v Meath County Council [2023] IESC 39

Hogan J in Killegland analysed s.10 and s.12 PDA 2000 and the effect of NPF objectives on development plans:

• Development plans must be “consistent, as far as practicable” with NPF and RSES objectives.
• This requires general consistency, not detailed, point‑by‑point compliance.
• The NPOs at issue in that case (compact growth and brownfield preference) were held to be “largely precatory and aspirational”.

Holland J stresses that this does not mean all NPOs are aspirational. He holds that NPO 57, by contrast, uses prescriptive language (“ensuring”, “in accordance with”) and links directly to a detailed guideline methodology. It is therefore capable of imposing a more concrete legal constraint than the NPOs in Killegland.

4.3 Spencer Place Development v Dublin City Council [2020] IECA 268

Collins J in Spencer Place held that any legislative move to shift competence from local to central government in planning must be done “clearly and precisely” and should not be extended by implication. Holland J cites this as a caution when considering whether ss.28(1A)–(1B) increase the binding force of guidelines. He holds (following Jones) that they do not.

4.4 Jones v South Dublin County Council [2024] IEHC 301

In Jones, Humphreys J addressed s.28(1A)–(1B), concluding:

• The requirement to append a statement showing “how” guidelines have been “implemented” does not turn a “have regard” duty into a compliance duty.
• SPPRs (specific planning policy requirements) can be mandatory, but the general run of guideline content remains advisory, with a local “margin of appreciation”.

Holland J adopts this reading. Sections 28(1A)–(1B) require description and explanation of how guidelines were treated; they do not themselves create a duty of compliance. This is critical to his analysis that it is NPO 57, not s.28, that elevates the Flood Risk Guidelines in this specific context.

4.5 Friends of the Irish Environment v Minister for Housing (Dublin Airport Noise) [2024] IEHC 588

In the Dublin Airport Noise case, Humphreys J upheld a ministerial direction removing a Fingal County Council objective that conflicted with NPO 65 (noise management). He held that:

• The Minister’s opinion under s.31 is reviewable as to factual/evaluative elements on a somewhat deferential basis (irrationality standard), once the law is correctly understood.
• Breach of an NPO of the NPF can provide an independent, lawful ground for a direction; if that ground is upheld, “we don’t need to go further”.

Holland J follows this approach: once he is satisfied that the residential zoning of the Subject Lands breached NPO 57 and hence s.10/s.12 PDA 2000, that alone is enough to sustain the direction, independently of all other alleged errors.

4.6 Tristor Ltd v Minister for Environment [2010] IEHC 397

Tristor remains the foundational authority on s.31 directions:

• The Minister cannot simply substitute his planning judgement for the elected members’ whenever he prefers a different policy.
• A direction requires an opinion that the plan is illegal — e.g. inconsistent with higher‑order instruments — not merely undesirable.

Holland J accepts that principle, but finds that inconsistency with NPO 57 and the Flood Risk Guidelines does amount to illegality here.

4.7 Case law on reasons and minutes: Christian, Connelly, Baile Bhruachlain, Killegland

The judgment contains a careful treatment of how to identify members’ reasons:

• Christian v DCC – reasons for controversial zoning decisions (especially material alterations contrary to official advice) should be clear from the resolution itself or documents expressly referenced.
• Connelly v ABP – reasons can also be found in other documents, provided a reasonable reader can see that they formed part of the actual reasoning.
• Killegland – Hogan J accepted that reasons could be gleaned from minutes and motion papers taken together; packaging need not be neat.
• Baile Bhruachlain Teo v Galway CoCo [2024] IEHC 604 – Humphreys J held that a chief executive’s summary of submissions need not be exhaustive where members also had access to the full documents.

Holland J synthesises these authorities to hold that:

• Minutes are the prima facie record of reasons but not conclusive or exhaustive.
• The CE’s s.31AM(6) notice must fairly and substantially convey the members’ reasons, but can summarise.
• The OPR should be prepared to look beyond the bare notice where credible evidence suggests additional reasons (e.g. motion paper), but on the facts, the OPR did in substance have the full picture.

5. The Court’s Legal Reasoning

5.1 NPO 57 and the Status of the Flood Risk Guidelines

NPO 57 of the NPF reads (in relevant part):

Enhance water quality and resource management by:
Ensuring flood risk management informs place‑making by avoiding inappropriate development in areas at risk of flooding in accordance with The Planning System and Flood Risk Management Guidelines for Planning Authorities.

Holland J’s reasoning runs in several steps:

1. NPO 57 is prescriptive, not aspirational. Unlike the NPOs in Killegland, it uses imperative language (“ensuring”, “in accordance with”) and is directed to a specific methodology (the Flood Guidelines). It is not merely a high‑level preference.
2. Statutory links to NPF objectives. Sections 10(1A), 10(2A)(a) and 12(18) PDA 2000 require core strategies and plans to be “consistent, as far as practicable” with NPF objectives, and place an obligation on planning authorities to ensure such consistency.
3. Government’s adoption of the NPF has Oireachtas backing. The NPF must be approved by both Houses of the Oireachtas under s.20C(8) PDA 2000. There is no challenge to the validity of the NPF or NPO 57.
4. Resulting legal effect. In this “particular and unusual context”, NPO 57 “must be understood as imposing on elected members, in adopting development plans, an obligation to ensure that their content accords with the Flood Risk Guidelines”. This supersedes the bare “have regard to” duty of s.28 for these Guidelines when it comes to plan‑making.
5. No separation‑of‑powers breach. The legislature itself has required plans to be consistent with the NPF; the NPF in turn points to the Guidelines. This is not the Minister amending primary legislation by stealth; it is the Oireachtas structuring a hierarchy of instruments.

The upshot is that for zoning in development plans, the Flood Risk Guidelines become a benchmark of legality via NPO 57. A plan that ignores their core requirements on flood‑vulnerable uses in Flood Zones A/B will be inconsistent with the NPF and thus open to a s.31 direction.

5.2 The Sequential Approach and the DPJT/DMJT Distinction

5.2.1 Structure of the Sequential Approach

The Guidelines require a Sequential Approach to managing flood risk at all plan and project stages. Holland J breaks it down clearly:

1. Pre‑Sequential Steps
   1. Identify a specific proposal – either a zoning objective (plan‑making) or a development proposal (development management).
   2. Classify flood vulnerability – residential is highly vulnerable; typical E&E uses (warehousing, industry, offices) are less vulnerable.
   3. Determine the flood zone – using OPW CFRAM mapping; defences are ignored for zoning.
   4. Consult the matrix – Table 3.2 of the Guidelines shows which combinations (e.g. residential in Zone A) are:
      • Appropriate (no further test);
      • Inappropriate but potentially allowable if they pass the Sequential Approach and a Justification Test; or
      • Plainly inappropriate.
2. Sequential Steps (applied only where the matrix says development is not “appropriate”):
   1. Avoid – can the proposed development type be located on lower‑risk lands (Zones B/C) that also meet proper planning and sustainable development? If yes, it should not be zoned in the floodplain at all.
   2. Substitute – where lands in Zones A/B must be developed (e.g. for strategic reasons), can a less vulnerable use (e.g. E&E) be chosen rather than a more vulnerable one (e.g. housing)?
   3. Justify – only if Avoidance is not possible and Substitution is not suitable, and only in “exceptional” circumstances, is a Justification Test undertaken to see if vulnerable uses can nonetheless be accommodated.

Importantly, Holland J stresses that justification comes last, not first. A DPJT is not a free‑standing device to override the strong policy against housing in floodplains; it is an exceptional last resort.

5.2.2 DPJT vs DMJT

The Guidelines contain two distinct Justification Tests:

• Development Plan Justification Test (DPJT) – applied at plan‑making stage (Box 4.1). It examines, among other things:
  • whether the settlement is targeted for growth in the NPF/RSES;
  • whether zoning this land for this particular use is required to achieve proper planning and sustainable development; and
  • whether there are no suitable alternative lands for that use at lower flood risk “within or adjoining” the urban core (Criterion 2(v)).
• Development Management Justification Test (DMJT) – applied at development management stage (Box 5.1) to individual planning applications, on the assumption that the zoning has already been justified at plan level.

Holland J makes two key doctrinal points:

1. DMJT presupposes a DPJT. Box 5.1 expressly assumes the land is zoned for the proposed use in a plan that took account of the Guidelines. You cannot retroactively justify a fundamentally bad zoning by running a DMJT in the context of a planning application.
2. The DPJT is use‑specific. Contrary to TPA’s repeated assertion, the DPJT is not neutral as to use. It must be applied with a specific development type in view. As Holland J notes:
   • Criterion 2(v) explicitly refers to “the particular use or development type”.
   • The Guidelines repeatedly urge substitution of less vulnerable for more vulnerable uses.
   • It is entirely possible for a site to pass a DPJT for E&E but fail it for residential (or vice versa), depending on the availability of alternative lands for each use.

On the evidence, RPS never carried out a DPJT for residential zoning at Greenpark; it only performed DMJTs, which:

• were premised (incorrectly) on a DPJT having been done for the 2010 Plan; and
• did not cover the entirety of the Subject Lands.

5.3 Fatal Failure: Avoidance and DPJT Criterion 2(v)

The most damaging aspect for Voyage is the combination of:

• the CE’s firm statement (Nov 2021) that the Draft Plan had zoned “sufficient alternative residential lands” at lower flood risk; and
• Voyage’s own abandonment of Ground 13, which had alleged an under‑supply of residentially zoned land.

Holland J reasons that, once Ground 13 was withdrawn by competent counsel, he was obliged to proceed on the basis that:

• the quantum of residential zoning in the Plan is sufficient to meet housing targets, with or without the Subject Lands; and
• therefore, residential zoning on the high‑risk floodplain is not necessary to achieve the Plan’s core strategy.

This has “profound consequences”:

• Under the Avoidance principle, if housing can be accommodated elsewhere on lower‑risk lands, then housing in Zone A is not justified at all.
• Under DPJT Criterion 2(v), the test that:

  “There are no suitable alternative lands for the particular use or development type, in areas at lower risk of flooding within or adjoining the core of the urban settlement”

  is plainly not met.

Once this is accepted, it becomes logically pointless to run a DPJT for residential zoning: it will inevitably fail, either at Avoidance or at Criterion 2(v). That is the cornerstone of the court’s conclusion that MA 147 was inconsistent with NPO 57 and the Guidelines.

5.4 Enterprise & Employment vs Residential Zoning

Voyage ran a “two‑pronged” attack:

1. The residential zoning under MA 147 was lawful because a DPJT had been (or could be taken as) passed.
2. The E&E zoning was itself unlawful because JBA had not properly satisfied DPJT Criterion 3 (demonstrating that flood risk to the development can be managed and that it will not cause unacceptable impacts elsewhere).

Holland J deals with this in a nuanced way.

(a) Residential zoning

He rejects Voyage’s claim that:

• TPA’s September 2021 submission + RPS’s Masterplan FRA amounted to a DPJT for residential; or
• the members, by adopting MA 147 and its reasons, could be taken to have conducted and passed a DPJT.

The Masterplan FRA was explicitly a DMJT, premised on the (incorrect) assumption that a DPJT was done in 2010. TPA’s attempt to “borrow” that DMJT and rebadge it as a DPJT is legally unsustainable, especially given Box 5.1’s requirement of prior zoning consistent with the Guidelines.

(b) Enterprise & Employment zoning

Voyage’s critique of JBA’s DPJT for E&E (particularly Criterion 3) had substance; Holland J frankly notes that JBA appeared to “kick the can down the road” to future DMJTs rather than rigorously quantify residual flood risk and mitigation at plan level. However, two features are decisive:

1. Voyage itself asserted, in its own DPJT argument, that Criterion 3 was satisfied for both housing and E&E. It claimed that RPS had shown flood risk could be managed and impacts avoided. Holland J points out that Voyage is “hoist with the petard of its own submission”; it cannot now say Criterion 3 was not satisfied for E&E when it previously said the opposite to justify residential use.
2. Even if the E&E DPJT were flawed, it would not entitle Voyage to residential zoning. At most, it might call for reconsideration of whether the lands should be zoned only for water‑compatible uses or left unzoned. The court is not going to quash the E&E zoning in order to instal residential zoning in a floodplain that clearly does not pass the Sequential Approach.

On that basis, the judge indicates that, even if a deficiency in the E&E DPJT were established, he would refuse relief on discretionary grounds, because:

• Voyage’s real aim is residential; and
• success on this technical point could not legally justify the outcome Voyage seeks.

5.5 OPR’s and CE’s Handling of Members’ Reasons

5.5.1 Duties under s.31AM(6) and s.31AN(4)

Section 31AM(6) requires the chief executive to notify the OPR within five working days of making a development plan, where the members depart from OPR recommendations, and to:

“state reasons for the decision of the planning authority”.

Holland J holds that this implicitly requires reasons to be fairly, impartially and substantially completely conveyed. However:

• Summarisation is allowed, provided substance is not distorted.
• The notice is prepared before the members approve their minutes, so it may anticipate (but not dictate) the final recorded reasons.

He finds that:

• The CE’s s.31AM(6) letter reproduced, in summary form, the seven reasons later adopted verbatim in the minutes.
• Crucially, Appendix 3 to that letter enclosed the entire Appendix D to JBA’s March 2022 SFRA, which contained:
  • TPA’s September 2021 submission;
  • the February 2022 MA 147 motion paper with its 10 reasons (including the pseudo‑DPJT);
  • RPS’s Masterplan and SHD FSRAs; and
  • the Lisney market report.
• Thus, the OPR had before it a full suite of material explaining Voyage’s case and the members’ stance.

5.5.2 OPR’s error and its consequences

The OPR initially refused to consider Voyage’s 30 June 2022 letter attaching the June motion with highlighted passages, stating it could not accept submissions outside the statutory process. Holland J considers that:

• This was wrong in principle – the OPR ought to be willing to look at credible evidence of what the members’ reasons actually were (for example, their minutes or motion papers), especially where the s.31AM(6) summary might be incomplete.
• However, on the facts, no prejudice resulted because the OPR already had all key documents via Appendix 3 to the CE’s letter.

When the OPR made its s.31AN(4) recommendation, it:

• quoted the members’ reasons as stated in the CE’s notice (now known to match the adopted minutes);
• expressly noted and considered Voyage’s supporting material (Appendix D); and
• adopted in substance the same rationale it had set out in its earlier s.31AM(8) notice.

Accordingly, Holland J finds that, despite a technical misstep, the OPR had sufficiently full knowledge of both the reasons and the counter‑arguments. The Minister, in turn, received the CE reports, the OPR submissions, and the Voyage submissions, and thus cannot be said to have acted in ignorance of the members’ reasons.

5.6 Standard of Review of the Minister’s Conclusions

Applying Tristor and the Dublin Airport Noise case, Holland J emphasises:

• The Minister may not override local policy choices merely because he prefers a different approach – he must identify an illegality in the plan.
• However, where consistency with NPF objectives is concerned, the Minister’s opinion often involves mixed questions of law and fact, and is subject to a somewhat deferential irrationality standard in judicial review, once the law is properly understood.

In this case:

• The legal framework (NPO 57 + Flood Guidelines + ss.10 & 12 PDA) clearly prohibited zoning highly vulnerable uses on Flood Zone A lands where suitable alternatives existed.
• On the factual record, it was eminently reasonable for the Minister to conclude that the residential zoning at Greenpark:
  • was inconsistent with NPO 57;
  • failed to accord with the Flood Guidelines; and
  • thereby undermined the overall strategy for proper planning and sustainable development.

That sufficed to uphold the direction, independently of any alleged secondary flaws in DPJTs for E&E, communication of reasons, or drafting.

6. Simplifying Key Concepts

6.1 What is a Development Plan?

A development plan is the statutory blueprint for land use in a local authority’s area, typically lasting six years. It:

• sets an “overall strategy for the proper planning and sustainable development” of the area;
• contains zoning maps showing what uses (e.g. residential, industrial) are generally acceptable on each parcel of land; and
• must be consistent with national and regional planning policies, including the NPF/RSES.

6.2 Flood Zones in Simple Terms

• Flood Zone A: High probability of flooding – roughly ≥1% annual chance for rivers, ≥0.5% for coastal/tidal.
• Flood Zone B: Moderate probability – between 0.1% and 1% annual chance.
• Flood Zone C: Low probability – <0.1% annual chance; effectively all areas not in A or B.

The Guidelines treat:

• most development as inappropriate in Zone A without exceptional justification;
• housing and similar uses as “highly vulnerable” – normally not allowed in Zones A and B; and
• “less vulnerable” uses (e.g. many E&E uses) as more acceptable in higher‑risk zones, though still subject to careful assessment.

6.3 DPJT vs DMJT – Plainly Stated

• DPJT (Development Plan Justification Test):
  • Done when the plan is being written or varied.
  • Asks: should we zone this land in the floodplain for this particular use at all?
  • Looks at strategic issues: national policy, core strategy, alternatives, regeneration, compact growth.
• DMJT (Development Management Justification Test):
  • Done at planning application stage.
  • Asks: given that this land is already appropriately zoned, can we permit this specific project, with appropriate mitigation?
  • Looks at site‑specific issues: floor levels, escape routes, residual risk, building design.

You cannot fix a bad zoning by doing a DMJT later; the plan‑level decision has to be sound in flood‑risk terms from the outset.

6.4 Ministerial Direction under s.31 PDA 2000

Section 31 allows the Minister to direct a local authority to amend its development plan where, in his opinion, the plan:

• is inconsistent with the NPF/RSES (s.31(1)(ba));
• fails to set out an overall strategy for the proper planning and sustainable development of the area (s.31(1)(b));
• is not in compliance with the Act (s.31(1)(c)); or
• fails to implement OPR recommendations (s.31(1)(a)).

The direction alters the plan by law; there is no further local vote on its content.

6.5 The OPR’s Role

The Office of the Planning Regulator:

• reviews draft and proposed development plans;
• issues recommendations where it considers plans inconsistent with national/regional policy or law; and
• can, under ss.31AM–31AN, recommend that the Minister exercise a s.31 power.

The Chief Executive must inform the OPR where members depart from its recommendations and state their reasons. The OPR then decides whether to ask the Minister to intervene.

7. Impact and Implications

7.1 Hardening of Flood‑Risk Policy in Plan‑Making

Perhaps the most significant doctrinal consequence is the court’s acceptance that, for development plans:

• Failure to follow the Sequential Approach and DPJT in the Flood Risk Guidelines can amount to illegality via inconsistency with NPO 57.
• This goes beyond the earlier “soft law” model of s.28 and places real constraints on how local members can zone flood‑prone land for housing.

Practically, local authorities and developers should expect:

• rigorous scrutiny by the OPR and Minister of any proposal to zone Flood Zone A lands for housing, especially where:
  • alternative residential capacity exists on safer lands; and
  • less vulnerable uses could be substituted.
• greater emphasis on:
  • comprehensive SFRAs;
  • explicit DPJTs for each vulnerable use; and
  • clear demonstration (with evidence) that there are no suitable alternatives.

7.2 Centralisation of Climate‑Related Planning Controls

When combined with the Dublin Airport Noise case, Voyage shows a pattern:

• Where an NPO specifically mandates action “in accordance with” a technical instrument (be it a noise action plan or flood guidelines), the courts will treat inconsistency with that NPO as a basis for ministerial intervention.
• This gives the Minister (and OPR) real leverage over local land‑use decisions in climate‑sensitive areas: noise exposure zones, floodplains, coastal areas, etc.

Holland J voices some unease about the degree of centralisation but concludes that, given the statutory framework, the courts must respect the legislative choice – subject to the limits in Tristor that directions be grounded in illegality, not policy preference.

7.3 Litigation Strategy: The Limits of “Upstream” Attacks

The judgment carries several warnings for would‑be challengers:

• Domino arguments are not automatic. Errors at an earlier procedural stage (e.g. in a CE report or an OPR s.31AM(8) notice) do not automatically vitiate the final direction, especially where the process is iterative and later steps can correct or neutralise them.
• Use the statutory process or risk discretionary refusal. Voyage had an opportunity in its August 2022 submission to assert that the members had themselves done a DPJT for residential use and that this had not been conveyed to the Minister. It failed to do so. Holland J indicates he would in any event refuse relief on discretionary grounds where applicants fail to “help themselves” at the statutory consultation stage.
• Be precise in pleading “mistake of fact”. The court reiterates that:
  • “mistakes” about evaluative judgements (e.g. whether DPJT criteria are met) are rarely pure mistakes of fact;
  • pleadings must identify the specific fact, show it is uncontentious and objectively verifiable, and show how the mistake was material; and
  • an undifferentiated plea of “mistake of law and/or fact” is not acceptable.

7.4 Developers’ Use of Flood Risk Assessments

The judgment contains a pointed, practical lesson for consultants:

• RPS’s explicit statement that its “purpose” was to “demonstrate” that the lands could be developed in accordance with the Guidelines drew judicial criticism. Expert reports should neutrally apply the methodology, not set out to justify a pre‑decided outcome.
• Confusing DMJTs with DPJTs – or assuming that a historic DPJT exists without verifying it – can fatally weaken a client’s case.
• Over‑stating the outcome of permissions (e.g. suggesting that 60% of the SHD site was in Flood Zone A when the SHD FRA had clearly said the majority of housing was in Zone C) undermines credibility.

7.5 DRSEL and Employment Zoning

On the Dock Road Strategic Employment Location (DRSEL), the court:

• carefully parses the RSES/LSMASP and the Limerick Docklands Framework Strategy;
• concludes that Greenpark is not part of the DRSEL as a matter of interpretation; but
• holds that this misapprehension ultimately does not change the legality of preferring E&E over residential zoning in the floodplain.

This illustrates a recurring theme:

• Even where some elements of the reasoning (e.g. one pillar of a DPJT) are shaky, if the national policy/flood‑risk ground is independently strong and the relief sought is legally untenable (housing in Zone A where alternatives exist), the court may refuse to disturb the outcome.

8. Concluding Assessment

Voyage Property Ltd v Limerick City and County Council is a dense but important addition to Irish planning jurisprudence. Its key contribution is to crystallise the legal consequences of NPO 57 for development plan zoning:

• Zoning highly vulnerable uses in high‑risk flood zones is no longer just a matter of local policy judgement lightly framed by non‑binding guidelines.
• Through the NPF, the Oireachtas has effectively made the core logic of the Flood Risk Guidelines – Avoid, Substitute, Justify – a standard of legality for plans.
• Where suitable alternative housing lands exist at lower risk, housing in Zone A is almost impossible to justify lawfully.

The judgment also:

• reinforces a deferential but not toothless standard of review for ministerial directions under s.31;
• clarifies that the OPR and Minister must operate as law enforcers, not alternative planning authorities, but that enforcing NPF objectives can legitimately have far‑reaching effects; and
• provides a measured, realistic framework for understanding the role of chief executives’ reports, minutes, and motion papers in evidencing members’ reasons.

For planning authorities, the message is clear:

• When zoning flood‑prone lands, they must transparently apply the Sequential Approach and, where necessary, the DPJT, for each vulnerable use proposed.
• They must be prepared to demonstrate, on a robust evidence base, that there are no suitable lower‑risk alternatives.

For developers, the case underlines:

• the limits of seeking residential zoning on tidal floodplains where a city already has ample safer zoning capacity; and
• the critical importance of aligning private masterplans and expert reports with the precise legal framework of the Guidelines and NPF, rather than seeking to stretch or re‑label them.

Ultimately, Voyage confirms and extends a trend: climate‑sensitive spatial planning (whether for noise, flooding or other hazards) is moving steadily towards a more rules‑based, nationally coherent model. Local democratic choices remain vital, but where they collide with clear national risk‑management objectives embodied in the NPF and technical guidelines, the courts are prepared to support ministerial intervention to maintain that national framework.