Workability Limits on Section 28(1B) “How” Statements and a Narrow, Substance-Based View of “De-zoning” in Development Plans

Case: MKN Properties Ltd & Anor v Fingal County Council (Approved) [2026] IEHC 282

Court: High Court of Ireland (Planning & Environment)

Judge: Humphreys J.

Date: 8 May 2026

1) Introduction

This judicial review challenged two elements of the Fingal County Development Plan 2023–2029 (“2023 CDP”) affecting lands at Fosterstown, Swords:

  1. a change of zoning on part of the applicants’ lands from “RA – Residential Area” to “OS – Open Space”; and
  2. the insertion of a map-based density objective (objective no. 38, introduced by material amendment PA SH 8.5) specifying 110–115 dwellings per hectare.

The applicants (corporate landowners/developers) argued that these measures breached ministerial guidelines under s.28 of the Planning and Development Act 2000 (“PDA”), and that the density objective was adopted for impermissible reasons and/or irrationally and inconsistently.

The respondent local authority defended the measures as plan-led implementation of an existing non-statutory masterplan (the Fosterstown masterplan, adopted in May 2019 as part of the Swords masterplans), which contained green infrastructure objectives and a density range of 105–115 units/ha.

The High Court dismissed the proceedings. The judgment is notable less for any re-statement of the high threshold for quashing democratically-made plans (that threshold was emphatically reinforced by the Supreme Court in late 2023), and more for its practical treatment of:

  • what “de-zoning” means in the context of ministerial development plan guidelines;
  • how far a planning authority must go in explaining “how” it implemented ministerial guidelines under (the now repealed) s.28(1B); and
  • when political debate in a council chamber crosses the line into impermissible considerations under s.12(11).

2) Summary of the Judgment

  • Deference to democratic plan-making: Applying Killegland Estates Ltd. v. Meath County Council [2023] IESC 39 and McGarrell Reilly Homes Ltd & Anor. v. Meath County Council [2023] IESC 40, the Court stressed that courts must be slow to interfere with the elected members’ democratic decisions on development plans.
  • Zoning challenge (RA to OS): The Court held that the OS zoning concerned green corridors/amenity features within a larger residential development context, and was not the kind of “de-zoning” targeted by the June 2022 “Development Plans, Guidelines for Planning Authorities”. In any event, the Council had regard to the guidelines and gave sufficient explanation, given the realities of plan-making and the volume of guidelines.
  • Map-based density objective (110–115 dph): The Court rejected complaints grounded in the Sustainable Residential Development and Apartment guidelines. The Council had regard to those guidelines; no clear breach was identified; and, critically, the density objective was essentially aligned with (and slightly more favourable than) the density already embedded in the Fosterstown masterplan which the 2023 CDP stated it would “implement”.
  • Improper considerations / s.12(11): Comments in the council debate about developer behaviour were construed as general planning-policy considerations about achieving outcomes in the real world, not as impermissible, personal, or extraneous motives.
  • Relief refused: Proceedings dismissed. The Court indicated it would include a recital in the order clarifying that the density objective was not less favourable than the density that would otherwise apply by virtue of the plan’s incorporation/implementation of masterplans.

3) Analysis

3.1 Precedents Cited and Their Influence

(a) Supreme Court: democratic primacy in development plans

The judgment opens by treating the Supreme Court’s late-2023 decisions as the governing lens:

  • Killegland Estates Ltd. v. Meath County Council [2023] IESC 39
  • McGarrell Reilly Homes Ltd & Anor. v. Meath County Council [2023] IESC 40

Those cases emphasise that development plans are made by elected members acting as a deliberative democratic assembly; plans may change through democratic cycles; and courts must be “very slow” to interfere. Humphreys J. treats these propositions not as background rhetoric but as a controlling standard: the applicants needed a “sufficiently convincing legal reason” to displace democratic plan-making.

(b) “Have regard to” duties: low threshold

On the nature of “have regard to” obligations (even where statutorily expressed), the Court relied on:

  • G.K. v. Minister for Justice [2001] IESC 205
  • Rana v. Minister for Justice [2024] IESC 46 (at §93)

These authorities support the proposition that “have regard” duties typically do not require slavish adherence or a detailed exegesis, and generally set a modest reviewable threshold: the decision-maker must consider the material; it need not follow it.

(c) Workability as a limiting principle in public-law interpretation

A central doctrinal move in the judgment is to treat “workability” as a constraint on interpreting s.28(1B)’s requirement to state “how” guidelines were implemented. The Court drew support from:

  • Waltham Abbey/Pembroke Road Association v. An Bord Pleanála [2022] IESC 30
  • Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43
  • Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52

While those cases arise in different contexts, they are deployed for a general interpretive theme: courts should avoid constructions of statutory obligations that are unworkable in practice. That theme becomes decisive when confronting the applicants’ demand for a more granular “how” statement across a large universe of ministerial guidelines.

(d) Interpreting policy texts: tension and judgment

The Court invoked UK planning authority to explain that development plans and policy documents often contain broad, potentially competing provisions, requiring evaluative judgment:

  • Tesco Stores Limited v. Dundee City Council [2012] UKSC 13 (and the earlier Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759)

This supports the Court’s approach to the June 2022 development plan guidelines: the applicants relied on an anti-“de-zoning” passage, but the guidelines also stress open space, green infrastructure, and amenities—requiring reconciliation by planning judgment rather than judicial micro-management.

(e) “Valid reading” principle and the handling of contentious statements

To resist an interpretation that a councillor’s debate contributions were improper considerations, the Court applied the principle that decisions (and associated materials) should be read as valid if a valid reading is available, citing:

  • M.R. (Bangladesh) v. International Protection Appeals Tribunal [2020] IEHC 41
  • Mulloy v. An Bord Pleanála [2024] IEHC 86 (citing O'Donnell v. An Bord Pleanála [2023] IEHC 381)
  • Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335
  • E.M. v. Minister for Justice and Equality [2024] IESC 3
  • Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC 407
  • Moran v. An Bord Pleanála [2025] IEHC 510
  • Duffy v. An Bord Pleanála [2025] IEHC 715

The Court contrasted the present case with daa plc v. Fingal County Council [2024] IEHC 589, where the debate materials were said to contain heavy reference to identifiable individuals and their stances.

(f) Equality/consistency and incrementalism

On the “different treatment of similar situations” argument, the Court accepted that complete consistency might be desirable in theory, but held that equality principles do not forbid incremental approaches. It cited:

  • O'Meara v. Minister for Social Protection [2024] IESC 1 (at para. 22)

For comparison arguments, the applicants relied on:

but the Court found the comparator site and circumstances not “identical”.

(g) Obiter on draft judgments: confidentiality as administration of justice

Although not determinative of the planning outcome, the judgment contains a detailed direction on draft judgment confidentiality, referring to:

  • Attorney General v. Crosland (No. 2) [2021] UKSC 58
  • Baigent v. Random House Group Ltd [2006] EWHC 1131 (Ch)
  • R. (Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181
  • Public Institution for Social Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368
  • Itkin v. Wood [2023] JRC 101

This portion is practically important for Irish planning and environmental litigation, where politically sensitive outcomes can incentivise premature circulation. The Court framed confidentiality as serving the administration of justice rather than party convenience.

3.2 Legal Reasoning

(A) Zoning: “de-zoning” and the June 2022 Development Plan Guidelines

The applicants’ core zoning complaint relied on a passage in the June 2022 “Development Plans, Guidelines for Planning Authorities” stating it is a policy/objective that serviced and developable zoned housing land “should not be subject to de-zoning”.

Humphreys J. responded in two steps:

  1. Substance-based characterisation of what happened: The Court held that the OS zoning here functioned as a refinement to protect green corridors/streams/hedgerows/open space within an overall residential development framework. It was therefore not the “central case” of “de-zoning” envisaged by the guidelines (i.e., removing housing capacity in a way that prevents housing being consented).
  2. Guidelines point in multiple directions: The same guidelines strongly support public open space, green infrastructure, biodiversity protection, and amenity objectives, including distinguishing open space serving a development from open space serving the wider community. The Court treated the Council’s approach as plausibly aligned with those provisions.

This is an important move: the anti-“de-zoning” text is not read as a trump card, but as one policy strand to be applied contextually, and not mechanically to any change of shading on a zoning map.

(B) Section 28(1A) and 28(1B): “have regard” and the “how” statement

The Court treated compliance with s.28(1A) as straightforward: the 2023 CDP expressly referenced the guidelines, and a statutory “have regard” duty does not require exhaustive demonstration.

The more novel reasoning concerns s.28(1B)(a) (the statement showing “how” ministerial guideline policies/objectives were implemented). Appendix 2 of the 2023 CDP contained a general statement (for the 2022 Development Plan Guidelines) that the plan implements them “throughout”.

In the abstract, the Court accepted the applicants’ linguistic point: “how” is not the same as “that”. However, it held that a demand for a granular narrative “how” statement is unworkable in the real setting of development plan-making, given:

  • the length of the guidelines (136 pages for the Development Plan Guidelines alone);
  • the number of guideline documents considered (25 sets under s.28 in this plan process); and
  • the impracticality of tying guideline-by-guideline reasoning to site-by-site decisions across an entire county.

Accordingly, “how” can be satisfied at a process level (implementation “throughout”), rather than requiring a provision-by-provision chain of reasons. The Court also held that even if Appendix 2 were deficient, reasons were inferable elsewhere from the plan’s treatment of open space and green infrastructure, making certiorari inappropriate.

On s.28(1B)(b) (reasons where the authority forms the opinion implementation is not possible), the Court held it was not triggered because the Council did not form such an opinion; it considered itself compliant.

(C) Density objective: guidelines, masterplans, and practical relief

The applicants invoked:

  • “Sustainable Residential Development in Urban Areas (Cities, Towns & Villages) (2009)”; and
  • “Sustainable Urban Housing: Design Standards for New Apartments (2020)”.

The Court’s rejection of this ground turned on three practical points:

  • Consideration shown: Appendix 2 linked these guidelines to relevant CDP chapters, which the Court considered adequate given workability constraints.
  • No clear infringement: The Court regarded the applicants’ reliance on general pro-density passages as insufficient to show that a 110–115 dph objective was unlawful.
  • Redundancy / no prejudice: The Fosterstown masterplan already expressed a net density of 105–115 units/ha, and the plan stated it would “implement” operational masterplans. The map-based objective was therefore largely confirmatory—and in fact slightly more favourable (110–115) than the masterplan’s lower end (105–115). On that basis, even if there were some procedural defect, the utility of certiorari was undermined.

A noteworthy feature is the Court’s willingness to shape the final order with a recital clarifying that the objective was not less favourable than the incorporated masterplan baseline—an attempt to reduce downstream forensic dispute about what the plan otherwise “means”.

(D) Proper planning only: s.12(11) and council debate

The applicants argued that statements made in debate (criticising developer behaviour and referencing the planning system) were extraneous to “proper planning and sustainable development” and thus contrary to s.12(11).

The Court rejected this. It treated the remarks as:

  • general observations about how developers act within the planning system; and
  • reasons for adopting plan wording to achieve a planning outcome in practice.

That is, commentary on market/behavioural responses to planning rules was characterised as a planning-relevant consideration, not an impermissible motive. The Court also deployed the “valid reading” principle to avoid construing such remarks as personal hostility to the applicants.

(E) Consistency, discrimination and comparators

The applicants pointed to an example in the Chief Executive’s report where a “live” planning application on other lands was said to make it “not appropriate” to insert a new local objective, and argued their lands were similarly subject to live applications.

The Court held:

  • the comparator differed: the other requested objective would have significantly altered the site’s density trajectory, whereas here the density figure was already embedded in the masterplan framework; and
  • even if theoretical consistency could be argued, equality principles do not prevent incremental or experimental plan provisions.

3.3 Impact

  • Section 28 “how” statements: a pragmatic ceiling. The judgment gives planning authorities comfort that s.28(1B) “how” statements (where applicable) may be satisfied at a high level of generality where guidelines are voluminous and wide-ranging. Challenges demanding detailed, site-specific “how” reasoning face a “workability” rebuttal.
  • “De-zoning” is not purely cartographic. A change from RA to OS is not automatically treated as the kind of “de-zoning” condemned by the 2022 Development Plan Guidelines, where the practical reality is a plan-led requirement for open space/green corridors within residential development lands.
  • Masterplans can have practical normative force where the plan commits to “implement” them. While masterplans may be “non-statutory”, the Court treated the CDP’s repeated commitment to implement them as carrying real interpretive consequences. This matters for future disputes about whether masterplan density/structure is merely aspirational or effectively part of the plan’s policy architecture.
  • Political speech and planning relevance. The judgment draws a relatively broad boundary around what can count as planning-relevant in political deliberation, including references to how participants (such as developers) may respond to regulatory incentives.
  • Remedies focus: prejudice and utility. Even where an applicant alleges procedural missteps, the Court’s approach signals a willingness to ask whether quashing would make any real difference (here, because the density position already existed via the plan’s masterplan implementation stance).

4) Complex Concepts Simplified

  • Judicial review of a development plan: The court does not decide the “best” planning outcome; it decides whether the plan-making process and result are lawful (e.g., complying with statute, considering required factors, avoiding impermissible factors).
  • “Have regard to”: A duty to “have regard” generally means the authority must consider the material and weigh it, but may depart from it for planning reasons. It is usually a low threshold unless the statute elevates it into a strict compliance obligation.
  • Section 28 guidelines and SPPRs: Ministerial guidelines can influence plan-making. Some guidelines may include Specific Planning Policy Requirements (SPPRs) that demand compliance. This case was argued largely as a “have regard/consider” dispute rather than an SPPR breach.
  • “De-zoning”: In everyday language it can mean any reduction of residentially zoned land. The Court treated it as context-dependent: the guidelines’ concern is primarily with removing serviced, deliverable housing land from housing capacity, not with designating internal open-space corridors as part of plan-led residential development.
  • Workability: Courts avoid interpretations that would be impossible or unrealistic to administer. Here, requiring detailed “how we implemented every line of every guideline” explanations was treated as unworkable.
  • s.12(11) “proper planning and sustainable development” limitation: Elected members must confine themselves to planning and legally relevant policy considerations when making a plan. The Court held that discussing how developers respond to planning rules can be part of planning reasoning, not necessarily an extraneous consideration.

5) Conclusion

MKN Properties Ltd & Anor v Fingal County Council (Approved) [2026] IEHC 282 reinforces strong judicial restraint in interfering with democratically adopted development plans, in line with Killegland Estates Ltd. v. Meath County Council [2023] IESC 39 and McGarrell Reilly Homes Ltd & Anor. v. Meath County Council [2023] IESC 40.

Its practical significance lies in two connected points. First, “de-zoning” in ministerial guideline terms is approached substantively: designating open space corridors within a residential development context is not readily treated as the prohibited removal of serviced housing land. Second, the Court places a workability cap on what s.28(1B)’s requirement to state “how” guidelines were implemented can sensibly demand, accepting that high-level statements may suffice given the scale and complexity of modern ministerial guidance.

For future plan challenges, the judgment signals that applicants must do more than identify a favourable sentence in a guideline: they must show a clear legal contradiction, material prejudice, and a workable interpretation of the statutory duties that does not convert plan-making into an impossible exercise in exhaustive written justifications.